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MBA Compliance Essentials Home Mortgage Disclosure Act Resource Guide

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MBA Compliance Essentials Home Mortgage Disclosure Act Resource Guide

  1. 1. MBA Compliance Essentials HMDA Resource Guide Developed by: Michael C. Flynn Partner Goodwin Procter LLP Mitchel H. Kider Managing Member Weiner Brodsky Kider PC Leslie A. Sowers Member Weiner Brodsky Kider PC
  2. 2. 2 TABLE OF CONTENTS I. Introduction to this Guide ........................................................................................................ 9 II. About the 2015 HMDA Rule..................................................................................................11 A. Background .............................................................................................................11 B. The 2015 HMDA Rule..............................................................................................12 C. Key Takeaways About The 2015 HMDA Rule..........................................................13 III. Effective Dates for the 2015 HMDA Rule .............................................................................17 TABLE 3.1: HMDA Effective Dates – Timeline......................................................................17 A. Summary Of Key Changes ......................................................................................21 1. Covered Institutions.................................................................................................21 2. Covered Transactions..............................................................................................22 3. Reportable Data Points............................................................................................23 4. Reporting Process and Disclosure Requirements....................................................23 IV. Covered Financial Institutions..............................................................................................24 A. Depository Institutions .............................................................................................24 1. 2017 Depository Institution Coverage ......................................................................24 2. 2018 Depository Institution Coverage ......................................................................25 3. 2020 Depository Institution Coverage ......................................................................25 4. Multifamily-Only Depositories ..................................................................................25 5. Covered Depository Institutions Following a Merger or Acquisition..........................26 B. Non-Depository Institutions......................................................................................26 1. 2017 Non-Depository Institution Coverage ..............................................................26 2. 2018 Non-Depository Institutional Coverage............................................................27 3. 2020 Non-Depository Institutional Coverage............................................................27 4. Multifamily Loans and Non-Depository Institutions...................................................27 5. Independent Mortgage Bankers...............................................................................28 6. Covered Institutions Following a Merger or Acquisition............................................28 C. Tables Showing Changes To Definitions Of “Financial Institution” For HMDA Reporting.................................................................................................................28 D. Implications..............................................................................................................32 V. Covered Transactions...........................................................................................................33 A. Summary.................................................................................................................33 B. Covered Transactions..............................................................................................33 1. Generally.................................................................................................................33 2. Covered Loans-Dwelling Secured Closed-End Mortgage Loans and Open-End Lines of Credit .........................................................................................................34 3. Assumptions and New York CEMAs........................................................................34 C. Dwellings .................................................................................................................35 1. Mixed-Use Properties ..............................................................................................36 2. Multifamily Reporting Is Required ............................................................................37 D. Commercial Purpose Loans.....................................................................................37 E. Other Exempt Transactions .....................................................................................38 F. Requests For Preapproval.......................................................................................39
  3. 3. 3 G. Requests For Prequalification..................................................................................39 VI. Collecting, Recording and Reporting Process Requirements...............................................42 A. Summary.................................................................................................................42 1. Loan Application Register........................................................................................42 2. Safe Harbors; Bona Fide Errors...............................................................................42 3. Resubmission Thresholds for Errors........................................................................43 B. Reporting.................................................................................................................45 1. Who Must Report?...................................................................................................45 2. Annual Reporting.....................................................................................................49 3. Quarterly Reporting for Large-Volume Reporters (60,000 or more Covered Loans).50 C. Logistics Of Reporting .............................................................................................52 D. Enforcement Update................................................................................................53 E. Disclosure Requirements.........................................................................................54 1. Requirements for Financial Institutions ....................................................................54 2. Public Disclosure of HMDA LAR by CFPB...............................................................54 VII. Reportable Data Points.......................................................................................................58 A. Overview .................................................................................................................58 B. Data Points..............................................................................................................58 1. Applicant Information...............................................................................................60 2. Property Information ................................................................................................71 3. Loan/Application Information and Loan Features.....................................................82 4. Pricing Information...................................................................................................97 5. Credit/Underwriting Information .............................................................................110 6. Identifiers...............................................................................................................126 VIII. Fair Lending Implications.................................................................................................130 A. Introduction – Fair Lending Bases and Theories....................................................130 B. HMDA Data and Regulatory Reviews ....................................................................132 IX. Exhibit A – Steps to Creating or Validating a Universal Loan Identifier (ULI)......................136 X. Sample HMDA Policy .........................................................................................................138 XI. Implementation Checklist...................................................................................................157 A. Checklist: Institutional Coverage............................................................................157 B. Checklist: Transactional Coverage ........................................................................161 C. Checklist: Effective Dates ......................................................................................168 D. Checklist: Disclosure, Reporting, And Enforcement...............................................170 E. Checklist: Operational Implementation...................................................................176 F. Checklist: Potential Collection And Reporting Issues.............................................178 XII. APPENDIX A....................................................................................................................180 A. Covered Institutions...............................................................................................180 1. Depository Institutions ...........................................................................................180 B. Covered Transactions............................................................................................180 1. Old Rule – Purpose Test........................................................................................181 2. Old Rule – Request For Preapproval .....................................................................182
  4. 4. 4 3. Old Rule – Request For Prequalification................................................................182 4. Old Rule - Requests for Preapproval .....................................................................182 C. Reporting...............................................................................................................184 D. Old Rule – Reporting - Broker Rule .......................................................................185 E. Old Rule – Public Disclosure .................................................................................186 F. Reportable Data Points..........................................................................................186 1. Overview ...............................................................................................................186 2. Data Points............................................................................................................187
  5. 5. 5 COPYRIGHT ©2018 Goodwin Procter LLP and Weiner Brodsky Kider PC. This book is being provided to you with a limited license for use solely within your organization. This book, its content and the link to it may be accessed by up to fifteen (15) members of your organization for each such person’s internal use of the materials. However, these materials may not be downloaded, reproduced, forwarded, or otherwise distributed in any form or by any means outside of your organization. Your organization will however, be entitled to comply with a subpoena or other validly issued administrative or judicial process that may request information from the book, to the extent required by law. Unauthorized reproduction, forwarding, distribution or display of this copyrighted work is subject to criminal and civil penalties under federal law. For information about extending this license to additional members of your organization, please contact: David Upbin Associate Vice President, Education Operations & Programming, & MBA Strategy Mortgage Bankers Association 1919 M Street, NW Washington, DC 20036 (202) 557-2931 www.mba.org If you would like to order additional copies of this publication or would like to inquire regarding discounts for quantity purchases, please contact MBA at education@mba.org. DISCLAIMER PLEASE TAKE NOTE: These materials have been produced by Goodwin Procter LLP and Weiner Brodsky Kider PC. These materials provide an overview of the Home Mortgage Disclosure Act (HMDA). These materials are designed to provide the reader with a general overview and understanding of HMDA. These materials are not intended to and do not provide legal advice, and does not create an attorney-client relationship between the recipient and the firms of Goodwin Procter LLP and Weiner Brodsky Kider PC or its attorneys. The HMDA provisions described herein are, in many instances, paraphrased, and a careful reading of the relevant laws, regulations or cases thereunder may reveal exceptions or different interpretations that might be applicable to a particular set of facts. These materials cover areas in which the proper interpretation of law and regulation can be highly dependent upon particular facts. Accordingly, taking action simply upon the basis of information provided in these materials is not advisable. The materials are not a substitute for consultation with qualified legal counsel regarding the manner in which the laws and regulations referenced herein may be interpreted and apply to particular facts or to particular business models. These materials are for informational and educational purposes only, and are not a solicitation and should not be construed as such. ©2018 Goodwin Procter LLP and Weiner Brodsky Kider PC
  6. 6. 6 AUTHOR BIOGRAPHIES AND INFORMATION ABOUT THE FIRMS Michael C. Flynn is a partner in Goodwin’s Financial Industry, Banking, Consumer Financial Services and FinTech practices. Mr. Flynn applies his unique background as an in-house senior legal executive in major financial institutions coupled with his government experience in banking and in mortgage and other consumer financial services, to advise clients on matters concerning compliance and legal operational issues, secondary market and other transactions, and regulatory enforcement. He works on matters related to federal and state consumer protection laws (including TILA, RESPA, HDMA, FACTA/FCRA and FDCPA), FHA and GSE issues, as well as matters involving fair lending and community reinvestment, and practice before federal and state regulatory agencies, including the Consumer Financial Protection Bureau and the Office of the Comptroller of the Currency. Mr. Flynn has more than 25 years’ experience in the financial services industry, with particular expertise in the consumer finance sector. He has held senior leadership and management roles for public banking entities, as well as for law firms and federal regulatory agencies, including service as Acting General Counsel for the U.S. Department of Housing and Urban Development and as General Counsel of both Flagstar Bank and PNC Mortgage. Mr. Flynn is admitted to practice in California and Michigan only. Pending his admission to the District of Columbia Bar, he is working under the supervision of other partners at Goodwin. Mitchel H. Kider is the Chairman and Managing Partner of Weiner Brodsky Kider PC, a national law firm specializing in the representation of financial institutions, residential homebuilders, and real estate settlement service providers. In his 35 years as a practicing attorney, Mitch has represented banks, mortgage companies, homebuilders, credit card issuers, and other financial service companies in a broad range of litigation and regulatory and compliance matters. He represents clients in investigative and enforcement actions before the Consumer Financial Protection Bureau, Department of Housing and Urban Development, Department of Veterans Affairs, Department of Justice, Federal Trade Commission, Ginnie Mae, Fannie Mae, Freddie Mac, and various state and local regulatory authorities and Attorneys General offices. Mitch speaks frequently on regulatory and litigation matters before trade associations and other industry groups. He is a Fellow of the American College of Consumer Financial Services Lawyers, and a Faculty Fellow of the Mortgage Bankers Association. Mitch is the author of six books pertaining to residential mortgage finance and also has written numerous law review and real estate journal articles on the subject. His most recent books are Consumer Protection and Mortgage Regulation Under Dodd-Frank (West/Thomson Reuters 2016) and Real Estate and Mortgage Banking: A New Era of Regulatory Reform (West/Thomson Reuters 2015-2016). Leslie A. Sowers is a Partner with Weiner Brodsky Kider PC and focuses on federal regulatory and compliance matters related to the financial services industry. Leslie advises financial institutions and mortgage companies on the requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Real Estate Settlement Procedures Act (RESPA), Truth-in-Lending Act (TILA), the TILA RESPA Integrated Disclosures (TRID) Rule, as well as on loan originator compensation requirements, and other consumer finance regulatory matters. She works with companies to develop policies and
  7. 7. 7 procedures to ensure compliance with the Equal Credit Opportunity Act (ECOA), Home Mortgage Disclosure Act (HMDA), and other fair lending and fair housing requirements. Additionally, Leslie regularly guides companies through the complexities of the Fair Credit Reporting Act (FCRA), Gramm-Leach-Bliley Act (GLBA), and other financial privacy matters. Leslie also assists companies in preparing for and successfully navigating supervisory examinations, develops compliance policies and procedures, counsels on the requirements of FHA, VA, Fannie Mae and Freddie Mac, and prepares complex regulatory analyses of matters pertaining to residential mortgage lending and servicing. Leslie is co-author of Consumer Protection and Mortgage Regulation under Dodd-Frank, published by Thompson Reuters. J. Eric Duncan is an Associate with Weiner Brodsky Kider PC and focuses on state and federal regulatory compliance matters related to the financial services industry. He regularly advises clients on state and federal licensing and approval requirements and prepares multi-state surveys pertaining to mortgage lending, brokering, and servicing. Eric conducted a multi-state survey of licensing requirements and exemptions for purchasing and servicing commercial mortgage loans and a multi-state survey of debt collector licensing requirements and exemptions. He also advised a national mortgage company on its privacy policies regarding consumer financial information to ensure compliance with the Gramm-Leach-Bliley Act and the Fair Credit Reporting Act. Kimberly Monty Holzel is an associate in Goodwin’s Financial Industry, Consumer Financial Services and FinTech practices. She advises banks, non-depository financial institutions, and FinTech clients on consumer financial laws and compliance and transactional matters. Prior to joining the firm, Ms. Holzel worked for the U.S. Consumer Financial Protection Bureau and was an Associate at Schulte Roth & Zabel LLP, where she regularly advised money transmitters and licensed lenders on consumer financial law and regulatory compliance in licensing and transactional matters. During Ms. Holzel’s four years at the CFPB, she headed examination teams at large financial institutions, among other responsibilities. The CFPB teams she led examined for compliance with, among other things, mortgage originations and servicing, fair lending laws, and consumer loan and consumer banking matters. William McCurdy is an associate in the firm’s Financial Industry Practice, working with mutual funds, private investment funds, advisers and other industry participants. He joined Goodwin in 2015. Mr. McCurdy is a member of the Boston Bar Association. Prior to his legal career, Mr. McCurdy worked for over a decade in the financial services industry, and has extensive experience in the investment management, custodial banking and mutual fund fields.
  8. 8. 8 Gabriela Morales-Rivera is an associate in the firm’s Business Law Department. She joined Goodwin in 2015. While attending law school, Ms. Morales-Rivera interned for the Honorable Juan R. Torruella of the First Circuit Court of Appeals. Additionally, she was a regional semifinalist in the National Moot Court competition. Ms. Morales-Rivera is a member of the Boston Bar Association. Lindsay Raffetto is an associate in Goodwin’s Financial Industry and Consumer Financial Services Litigation practices. She represents financial institutions in a variety of government and consumer class-action litigation matters involving the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), the Fair Housing Act (FHA), the Real Estate Settlement Procedures Act (RESPA), and various state statutes relating to mortgage lending, servicing, and collections activity. Ms. Raffetto also advises clients on regulatory compliance issues relating to federal unfair, deceptive, or abusive acts or practices (UDAAP) regulation and enforcement, the Home Mortgage Disclosure Act (HMDA), and other regulatory and ethical matters. Ms. Raffetto also devotes significant time to pro bono work, and has represented clients in matters involving asylum, Social Security disability benefits, homelessness law and policy, and divorce and child custody. Ms. Raffetto joined the firm in 2012. At Goodwin, we use law to achieve unprecedented results for our clients. Our 900 plus lawyers across the United States, Europe, and Asia excel at complex transactions, high-stakes litigations and world-class advisory services in the financial, life sciences, private equity, real estate, and technology industries. We partner with our clients to practice law with integrity, ingenuity, agility and ambition. To learn more, visit us at www.goodwinlaw.com and follow us on Twitter at @goodwinlaw and on LinkedIn. WEINER BRODSKY KIDER PC is a Washington, D.C.-based firm with a national practice focused on the mortgage and financial services industries. It represents a broad client base, from start-up businesses to Fortune 500 companies, throughout the United States. Our attorneys have been serving mortgage bankers for more than three decades, and we are one of the leading law firms in the country practicing in this area. From our considerable experience, we bring to each matter a depth of industry knowledge that enables us to develop approaches and solutions that combine expert legal analysis and business reality. We are committed to bringing value and satisfaction to our clients. We offer full-service legal representation and counseling to our clients, with teams devoted to federal and state licensing and regulatory compliance, corporate and transactional matters, representation before government agencies, and litigation.
  9. 9. 9 I. INTRODUCTION TO THIS GUIDE This Guide, published by the Mortgage Bankers Association, provides an overview of Regulation C, which implements the Home Mortgage Disclosure Act (“HMDA”), as amended by the Consumer Financial Protection Bureau’s (“CFPB”) final rules from October 2015 and September 2017. HMDA requires certain institutions to collect, report and disclose information about their mortgage lending activity. This information assists financial institutions and government agencies determine whether financial institutions are serving the housing needs of their communities and identify potentially discriminatory lending patterns. The changes made to Regulation C by the CFPB in 2015 were sweeping, dramatically altering the coverage of financial institutions subject to HMDA, the loan transactions and applications that must be reported, and the data points that must be collected and recorded by institutions, and reported to the appropriate federal regulator. This Guide is designed to aid its users in understanding the recent changes to Regulation C and to provide a guide to implementation. A note about the terminology used in this Guide: For the sake of simplicity, the final rulemaking amending Regulation C that was published by the CFPB on October 28, 20151 will be referred to in this Guide as the “2015 HMDA Rule.” On September 13, 2017, the CFPB also published technical corrections and clarifying amendments with respect to the 2015 HMDA Rule, which changed and clarified certain data field reporting requirements in the 2015 HMDA Rule, and temporarily changed the threshold for reporting open-end lines of credit.2 This rulemaking will be referred to as the “Clarifications.” Regulation C, as it exists as of the date of publication, incorporating the changes made by the 2015 HMDA Rule and the Clarifications (collectively, the “CFPB Amendments”), effective January 1, 2018, will be referred to in this guide as “Regulation C.”3 By contrast, Regulation C as it existed before the changes made by the CFPB Amendments became effective will be referred to as the “Old Rule.” For ease of reference, the Guide will adhere to these terms to describe the changes and versions of the regulations implementing HMDA. Institutional Coverage. The CFPB Amendments change the scope of institutions covered by HMDA in two phases. Effective January 1, 2017, the 2015 HMDA Rule narrows the scope of covered institutions, thereby exempting depository institutions that do not exceed an established asset-size threshold, do not have a branch office located in an Metropolitan Statistical Area (“MSA”) or Metropolitan Division (“MD”), do not engage in certain types of lending activity, and do not meet an established loan volume threshold, which is based on lending activity in each of the two (2) preceding calendar years. Then, effective January 1, 2018, the scope of covered institutions is adjusted again, imposing a loan threshold test that applies to both depository and non-depository institutions. Depository institutions that originate loans secured by multifamily housing, but do not originate any home purchase loans or refinance home purchase loans secured by one-to-four-unit dwellings, are not considered covered institutions under current Regulation C or the Old Rule. Institutional coverage is discussed in greater detail in Section IV (Covered Financial Institutions) of this Guide. 1 See Consumer Financial Protection Bureau, Home Mortgage Disclosure (Regulation C), 80 Fed. Reg. 66128 (Oct. 28, 2015). 2 Consumer Financial Protection Bureau, Home Mortgage Disclosure (Regulation C), 82 Fed. Reg. 43088 (Sept. 13, 2017); Consumer Financial Protection Bureau, Home Mortgage Disclosure (Regulation C) Temporary Increase in Institutional and Transactional Coverage Thresholds for Open-End Lines of Credit, 82 Fed. Reg. 33455 (July 20, 2017); Consumer Financial Protection Bureau, Home Mortgage Disclosure (Regulation C), 80 Fed. Reg. 69567 (Nov 10, 2015). 3 12 CFR Part 1003.
  10. 10. 10 Independent mortgage bankers (“IMBs”) must be mindful of the changes to the scope of non- depository institutions covered by Regulation C, and the new requirements that will be imposed on covered non-depository institutions. Regulation C imposes a scope of coverage, and regulatory requirements that, in some instances, differ from those applied to depository institutions. These distinctions are discussed in further detail in Section IV.B (Non-Depository Institutions) and throughout the Guide. IMBs are generally considered “non-depository institutions” and, if covered, are subject to Regulation C’s requirements for non-depository institutions upon the effective date of each requirement. Additionally, as is discussed below, multifamily housing lenders must heed the new standard for covered loans including the dwelling secured test, which make clear Regulation C’s applicability to multifamily lenders. The Clarifications provide further explanation of how Regulation C applies to multifamily housing lenders. Transactional Coverage. Effective January 1, 2018, covered loans include consumer-purpose closed-end mortgage loan and open-end lines of credit secured by a dwelling. Commercial- purpose loans and lines of credit are covered if the purpose of the loan is home purchase, home improvement or refinancing. The 2015 HMDA Rule expands the definition of “dwelling” such that it explicitly includes loans secured by multifamily residential structures and communities in the rule’s purview. As a result, if a loan is secured by a multifamily residential structure, or a unit thereof, it may qualify as a “covered loan” under the “dwelling-secured test.” A discussion of Regulation C as it applies to multifamily housing can be found in Section V.C.2 (Multifamily Reporting is Required) of this Guide. Reportable Data. The CFPB Amendments significantly expand the amount and type of data that must be collected, recorded and reported on the HMDA loan/application register (“LAR”) for loans covered by Regulation C, as well as the manner in which certain data is collected from applicants. This Guide describes the Old Rule’s and Regulation C’s reportable data points and provides guidance on how to report them. The 2015 HMDA Rule also imposes a new quarterly reporting requirement for large-volume institutions (i.e. those financial institutions that reported at least 60,000 covered loans, applications, and purchased covered loans, combined, for the preceding calendar year). Third, Regulation C now requires that LARs be submitted to the appropriate Federal regulator in electronic format. Beginning with the submission of data collected in 2017, which is due on March 1, 2018, covered financial institutions will report their data to the CFPB, which will intake and process HMDA data on behalf of the other Federal agencies. The CFPB introduced a web-based submission tool used by covered financial institutions for this purpose (“HMDA Platform”). See Section VI.C (Logistics of Reporting) for more information about the HMDA Platform. The introduction of new data points, such as borrower age, and new ways in which applicants may identify with certain demographics (i.e. by allowing applicants to identify with subcategories of races and ethnicities), may provide new areas of fair lending analysis and enforcement by regulators. The imposition of a quarterly reporting requirement on large-volume institutions will enable regulators to perform more timely analysis and bring swift enforcement action. The increase in data and web-based submission process raises data security and privacy concerns that the CFPB has admitted it is still trying to address. Further discussion of these points can be found in Section VII (Reportable Data Points) of this Guide. Challenges. The CFPB Amendments present significant compliance challenges. Though some low-volume institutions are no longer subject to Regulation C, many financial institutions that had not previously been subject to HMDA and Regulation C now fall under the regulation’s purview for the first time. There are significant implementation costs associated with building the systems
  11. 11. 11 necessary to comply. Additionally, most provisions of the CFPB Amendments have become effective, while the industry is still awaiting clarifications from the CFPB. All of these considerations will be explored in greater detail below. However, they highlight the importance of these changes to Regulation C and why financial institutions must take great care to comply. As discussed in greater detail below, the CFPB is expected to engage in further rulemaking and policymaking to strike an appropriate balance between expanding the amount of data collected by regulators to assist in the enforcement of fair lending laws, and tempering the enormous burden on financial institutions subject to the new requirements. Such rulemakings are expected to address institutional and transactional coverage thresholds, resubmission thresholds for errors on HMDA LARs, and other topics. II. ABOUT THE 2015 HMDA RULE A. BACKGROUND Generally - Since its enactment in 1975, the Home Mortgage Disclosure Act (“HMDA”), 12 U.S.C. § 2801 et seq., and its implementing regulation, the Federal Reserve Board’s Regulation C (“Regulation C”), 12 CFR Part 1003, have required certain mortgage lenders to collect, report and disclose to the public data about originations and purchases of mortgage loans. HMDA arose out of a concern in the 1970s that lenders were “redlining” and contributing to the decline of certain geographic areas by failing to extend credit on reasonable terms to qualified applicants in those areas. To respond to this concern, HMDA requires covered financial institutions to collect, record, and report certain data about their lending activity to federal regulators and the public with the goals of:  Helping to determine whether financial institutions are serving the housing needs of their communities;  Assisting public officials in targeting public-sector investment to attract private investment to areas where it is needed; and  Assisting in identifying possible discriminatory lending patterns and enforcing antidiscrimination statutes.4 1989 Revisions – In order to assist regulatory agencies in identifying possible discriminatory lending patterns that warrant closer scrutiny,5 HMDA was significantly revised in 1989, incorporating amendments included in the Financial Institutions Reform, Recovery, and Enforcement Act (“FIRREA”).6 To accomplish its stated objectives, the amendment required lenders to report information on all mortgage applications in addition to mortgage loan originations and purchases, and required lenders to collect and report data on the race, sex, and income of loan applicants and borrowers. Additionally, the scope of HMDA was expanded to include certain non-depository mortgage lenders. The rule’s coverage of non-depository lenders was further expanded by adding a $25 million dollar volume test to the existing percentage-based coverage test, so that a non-depository institution had to report if, among other requirements, either its 4 12 CFR 1003.1(b). 5 H.R. Conf. Rep. No. 222 at 459, 1989 WL 168167 at *498 (Leg. Hist.), 101st Cong., 1st Sess. (1989). 6 Pub. L. No. 101-73, § 1211, 103 Stat. 524-26 (1989).
  12. 12. 12 home purchase loans made up at least 10% of its loan origination volume or it originated more than $25 million in home purchase loans in the previous year. 2002 Revisions – In 2002, the Federal Reserve amended Regulation C to assist regulatory agencies in determining whether lenders targeted minorities and low-income borrowers for predatory lending or engaged in pricing discrimination. The amendment required lenders to report additional data points, including the lien status of applications and originated loans, whether a loan was secured by manufactured housing, and whether a loan was covered by the Home Ownership and Equity Protection Act (“HOEPA”).7 Significantly, lenders for the first time were required to report pricing data in the form of “rate spreads” in relation to the yield for comparable Treasury securities. Rate spreads were to be reported where the annual percentage rate (“APR”) exceeded the yield for comparable Treasury securities by 3% for first-lien loans and 5% for subordinate lien loans). Additionally, the rule’s coverage of non-depository lenders was expanded by adding a $25 million dollar volume test to the existing percentage-based coverage test, so that a non-depository institution had to report if, among other requirements, either its home purchase loans made up at least 10% of its loan origination volume or it originated more than $25 million in home purchase loans in the previous year. 2008 Revisions - In 2008, Regulation C was amended again, this time revising the measure of rate spreads. Financial institutions were required to compare APRs for HMDA- reportable loans to the Average Prime Offer Rate (“APOR”)8 at the time of the loan so that a loan with a rate spread at or above 1.5% over the APOR for first-lien loans and 3.5% for subordinate- lien loans would be reported. This change was prompted by the Board’s determination that the APOR is more consistent with prevailing mortgage market pricing over time, as opposed to Treasury Yields, which had previously been used as a benchmark for reporting rate spreads under Regulation C. Additionally, the change conformed Regulation C with the definition of “higher- priced mortgage loans” adopted by the Board under Regulation Z in 2008.9 B. THE 2015 HMDA RULE On July 21, 2011, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the “Dodd-Frank Act”) transferred HMDA and Regulation C rulemaking, supervisory and enforcement authority from the Federal Reserve to the Consumer Financial Protection Bureau (“CFPB”). The CFPB also acquired HMDA supervisory authority for large banks and thrifts with assets of at least $10 billion in assets, non-depository lenders who are “larger market participants,” and credit unions regardless of size. The CFPB raised the asset threshold for depository institutions to $41 million in 2012, to $42 million in 2013, to $44 million in 2015, and again to $45 million in 2017. The Dodd-Frank Act amended HMDA to require the CFPB to expand the data set that financial institutions must report. On August 29, 2014, the CFPB issued a proposed rule10 to implement the Dodd-Frank Act’s requirements, and make additional changes to Regulation C pursuant to its discretionary authority conferred by the Dodd-Frank Act. On October 15, 2015, the CFPB issued the 2015 HMDA Rule that is the subject of this Guide. The CFPB stated that in 7 15 U.S.C. §§ 1639, 1640. 9 Federal Reserve System, Home Mortgage Disclosure, 73 Fed. Reg. 63329, 63330 (Oct. 24, 2008). 10 Consumer Financial Protection Bureau, Home Mortgage Disclosure, 79 Fed. Reg., 51732 (Aug. 29, 2014).
  13. 13. 13 drafting the 2015 HMDA Rule, the CFPB endeavored to improve the quality of market information collected by financial institutions, thus allowing regulatory agencies to monitor fair lending compliance and obtain information about consumer access to credit. Additionally, the CFPB stated that it attempted to align reporting requirements with existing industry data to reduce the regulatory burden, as many financial institutions already collect the same or similar data for their own loan processing, underwriting, and pricing, or to facilitate the sale of loans on the secondary market. Finally, the CFPB indicated that it plans to enhance public access to HMDA data, and is exploring ways to do so without compromising the privacy of applicants and borrowers. As a result and as explained in more detail below, the 2015 HMDA Rule:  Significantly expands the number of data points11 that all covered financial institutions must collect, record and report12 ;  Expands the number of non-depository financial institutions subject to HMDA’s reporting requirements, while slightly reducing the number of depository institutions covered by Regulation C;  Expands the scope of coverage to include open-end home equity loans;  For residential loans, moves to a “dwelling-secured” test to determine if the loan is covered; and  Requires quarterly reporting for certain large-volume institutions (institutions that reported at least 60,000 covered loans and applications in the preceding calendar year) beginning in 2020. The sections below will explain these changes, and what they mean for financial institutions preparing to comply with the amendments to Regulation C. C. KEY TAKEAWAYS ABOUT THE 2015 HMDA RULE As detailed in this Guide, the changes to HMDA that will take place under the CFPB Amendments are broad and substantive. These changes bring us to several key points that are addressed throughout the CFPB Amendments and throughout this Guide.  New HMDA Data Fields. Fair Lending and Implications. The 2015 HMDA Rule nearly doubles the number of data fields and data points13 that all covered financial institutions must collect and report, and modifies existing data fields. Covered financial institutions must now collect and record this data beginning with all final action taken on or after January 1, 2018, for reporting in 2019. The increase in data points being reported under Regulation C will likely have significant ramifications for fair lending enforcement. The 11 Financial institutions must permit applicants to self-identify as more than one ethnicity or race, and use aggregate categories and disaggregated subcategories. For example, the aggregate Hispanic or Latino ethnicity category must be broken down into disaggregated subcategories so the applicant may self-identify as Mexican, Puerto Rican, Cuban, or Other Hispanic or Latino, and may provide an additional race subcategory that is not provided on the collection form. See 12 CFR 1003, Appendix B. 13 Financial institutions must permit applicants to self-identify as more than one ethnicity or race, and use aggregate categories and disaggregated subcategories. For example, the aggregate Hispanic or Latino ethnicity category must be broken down into disaggregated subcategories so the applicant may self-identify as Mexican, Puerto Rican, Cuban, or Other Hispanic or Latino, and may provide an additional race subcategory that is not provided on the collection form. See 12 CFR 1003, Appendix B.

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