Those Who Argue That Predatory Lending Was Bad Should Welcome the FRB Rule

March 16, 2011

Under the final Federal Reserve Board's loan originator (LO) compensation rule, effective April 1, 2011, an LO may not receive compensation based on the interest rate or loan terms. This will prevent LOs from increasing their own compensation by raising the consumers' rate. LOs can continue to receive compensation based on a percentage of the loan amount and consumers can continue to select a loan where loan costs are paid for via a higher rate. The final rule prohibits an LO who receives compensation directly from the consumer from also receiving compensation from the lender or another party.
The final rule also prohibits LOs from steering a consumer to accept a mortgage loan that is not in the consumer's interest in order to increase the LO’s compensation.
Though a lawsuit has been filed to stop the changes from going into effect, there has been a plethora of legal research conducted by the FRB over the course of many years.
The FRB’s research found that consumers do not understand the various ways LOs can be compensated such as yield spread premiums (YSPs), overages, and so forth, so they cannot effectively negotiate their fees. Yes, some LOs spend many hours educating their borrowers but this is not true for all LOs.
YSPs and overages create a conflict of interest between the loan originator and consumer. For consumers to be able to make an educated choice, they would have to know the lowest rate the creditor would have accepted, and determine that the offered rate is higher than the lowest rate available. The consumer also would need to understand the dollar amount of the YSP to figure out what portion will be applied as a credit against their loan fees and what portion is being kept by the LO as additional compensation. Currently, mortgage broker LOs must do this, but LOs who work for non-depository lenders or depository banks are not required to disclose their overage.
LOs argue that consumers ought to read their loan docs and take personal responsibility for negotiating a good deal on their mortgage yet facts related to LO compensation are hidden from consumers when working with depository banks and non-depository lenders.
The FRB’s experience with consumer testing showed that mortgage disclosures are inadequate for the average random consumer to be able to understand the complex mechanisms of YSPs when working with mortgage broker LOs. Consumers in these tests did not understand YSPs and how they create an incentive for loan originators to increase their compensation.
For example, an LO may charge the consumer an LO fee but this may lead the consumer to believe that the LO will act in the best interest of the consumer.
The FRB says: 
“This may lead reasonable consumers erroneously to believe that loan originators are working on their behalf, and are under a legal or ethical obligation to help them obtain the most favorable loan terms and conditions."
Consumers may regard loan originators as ‘‘trusted advisors’’ or ‘‘hired experts,’’ and consequently rely on originator’s advice. Consumers who regard loan originators in this manner are far less likely to shop or negotiate to assure themselves that they are being offered competitive mortgage terms. Even for consumers who shop, the lack of transparency in originator compensation arrangements makes it unlikely that consumers will avoid yield spread premiums that unnecessarily increase the cost of their loan.
Consumers generally lack expertise in complex mortgage transactions because they engage in such mortgage transactions infrequently. Their reliance on loan originators is reasonable in light of originators’ greater experience and professional training in the area, the belief that originators are working on their behalf, and the apparent ineffectiveness of disclosures to dispel that belief.
The FRB believes that where loan originators have the capacity to control their own compensation based on the terms or conditions offered to consumers, the incentive to provide consumers with a higher interest rate or other less favorable terms exists. When this unfair practice occurs, it results in direct economic harm to consumers whether the loan originator is a mortgage broker or employed as a loan officer for a bank, credit union, or community bank.”
Mortgage broker LOs have been forced to show all their compensation on line 1 of the GFE since Jan 2010. These LOs will have very little difficulty in making the transition on April 1st. LOs who are currently earning overage by selling the consumer a higher rate will need to make the ostensibly painful transition to full transparency.
►LOs who argue that consumers should take more responsibility for their mortgage loan ought welcome the FRB rule.
►LOs who argue that predatory lending was bad for consumers and bad for the mortgage industry should support the FRB rule.
►Mortgage broker trade groups who have been screaming for a “level playing field” should celebrate the FRB rule and reconsider wasting membership dollars on a lawsuit.
Remember, the FRB rule does not limit LO compensation. Instead the FRB is just imposing LO compensation prohibitions. The three percent rule will come later, with the Dodd-Frank Act.
Jillayne Schlicke is with CE Forward Inc. and the National Association of Mortgage Fiduciaries. She may be reached by phone at (206) 931-2241 or e-mail jillayne@mortgagefiduciaries.com.
 

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