Mortgage Banking & Consumer Credit Alert

Mortgage Banking & Consumer Credit Alert

January 2008

Authors:

Steven M. Kaplan

+1.202.778.9204

steven.kaplan@klgates.com

Nanci L. Weissgold

+1.202.778.9314

nanci.weissgold@klgates.com

Lorna M. Neill

+1.202.778.9216

lorna.neill@klgates.com

K&L Gates comprises approximately

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North America, Europe and Asia, and represents capital markets participants, entrepreneurs, growth and middle market companies, leading FORTUNE 100 and

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Policy Watch: Reverse Mortgages in 2008

As millions of baby boomers reach retirement age, reverse mortgages and similar fi nancing products that enable seniors to tap into their home equity are gaining tremendous popularity.

State and federal legislators and regulators are taking note and proposing numerous measures to regulate reverse mortgages. This Client Alert discusses a number of important legislative developments on reverse mortgages in 2007 and previews reverse mortgage policymaking in 2008.

* * * * *

In the last weeks of 2007, the U.S. Congress took several signifi cant steps toward changing the rules governing the booming market for reverse mortgages. The U.S. Senate Special

Committee on Aging held a hearing to consider the potential benefi ts and perils to consumers of reverse mortgages.

1

Senators Claire McCaskill and Herb Kohl fi led the Reverse Mortgage

Proceeds Protection Act, legislation to address concerns about predatory lending practices in the rapidly growing reverse mortgage industry.

2

Finally, the U.S. Senate passed the FHA Modernization Act,

3

which proposes a number of changes to HUD’s reverse mortgage program, the Home Equity Conversion Mortgage

(“HECM”) program. The House of Representatives passed companion FHA reform legislation in September 2007, which proposes new rules for HECMs similar to those in the

Senate bill.

4

The House FHA reform bill differs from the Senate version in signifi cant ways not related to HECMs, however.

THE FHA MODERNIZATION ACT—REVERSE MORTGAGE

PROVISIONS

In addition to proposing many more publicized FHA reforms, the FHA Modernization Act would amend the HECM program in fi ve ways aimed at increasing the availability of HECMs and the funds available to HECM borrowers, and lowering the costs of HECMs.

1. Lift the Annual Cap on HECMs .

The Act would eliminate the 275,000 annual cap on the number of HECMs that FHA can insure each year.

5

2. Increase the Available Loan Amount.

The Act would implement a single national loan amount for HECMs equal to the government-sponsored conventional singlefamily loan cap, currently set at $417,000.

6

Currently HECM mortgage limits vary according to the FHA loan limit for a particular area.

3. Permit HECMs on Cooperative Units .

The Act would expand the availability of the HECM program to cooperative unit owners.

4. Lower Origination Fees.

The Act would require HUD to lower the cap on HECM origination fees from 2 percent to 1.5 percent of the maximum amount allowable for the loan.

7

At the same time, the legislation would give HUD the option to raise this cap in the future based on “the costs to the mortgagor” or “the impact of such fees on the reverse mortgage market.”

8

In addition, the Act would require HUD to issue regulations that set a new minimum allowable amount for origination fees

9

, provide that the origination fee may be fully fi nanced with the mortgage, and include any fees paid to correspondent mortgagees.

10

Mortgage Banking & Consumer Credit Alert

5. Mandate HUD Review of HECM Costs.

The Act would require HUD to submit a report to

Congress 12 months after the fi nal enactment of the

FHA Modernization Act on the effects of limiting the amounts of costs or fees under the HECM program.

11

The HUD report must include information regarding the current costs to borrowers of participating in the HECM program, the fi nancial soundness of the program, and the availability of credit under the program.

12

Specifi c concerns that the Act directs

HUD to report on are up-front costs to borrowers, mortgage insurance premiums (“MIPs”), and margin rates charged under the HECM program.

13

THE REVERSE MORTGAGE PROCEEDS

PROTECTION ACT

Senators McCaskill and Kohl introduced the Reverse

Mortgage Proceeds Protection Act (S. 2490) (the

“Reverse Mortgage Act”) on December 12, 2007.

This Act addresses two major concerns that Senators

McCaskill and Kohl emphasized during the recent

Senate Special Committee on Aging’s reverse mortgage hearing:

„ Aggressive marketing tactics that convince seniors to obtain reverse mortgages, or expensive fi nancial products along with reverse mortgages, even when these products may be inappropriate or unnecessary; and

„ The underfunding of mandatory HECM counseling.

Aggressive Marketing Tactics

„ Prohibit the Required Purchase of an

Annuity. The Reverse Mortgage Act aims to address concerns regarding the sale of fi nancial products such as annuities along with reverse mortgages that are unnecessary or seriously ill-suited to the consumer. The

December 12 th Special Committee hearing emphasized harms associated with coupling annuities and reverse mortgages, but Senators and panel participants also mentioned concerns about the simultaneous sale of longterm care insurance, life insurance and other investment products.

14

To address this concern, the Reverse Mortgage

Act would require HUD to implement new regulations that would prohibit HECM lenders from requiring seniors to purchase an annuity with the proceeds of a reverse mortgage.

15

„ Tighten Rules on Mandated Counseling.

The Reverse Mortgage Act also would amend the HECM statute to specify that the mandated third party counseling for HECM borrowers must be obtained from a person or entity that is “not a reverse mortgage lender, servicer, or investor, or an entity engaged in the sale of annuities, investments, longterm care insurance, or any other type of fi nancial or insurance product.” 16 The statute currently requires only that the counselor not be a “lender.” 17 As discussed further below, counseling centers must be certifi ed by

HUD to provide counseling, not individual counselors. The Reverse Mortgage Act would not change the certifi cation requirements.

„ Require HUD to Issue Additional Consumer

Protection Regulations. The Reverse

Mortgage Act also would require HUD, within six months of the Act’s enactment, to issue regulations “to help protect elderly homeowners from the marketing of fi nancial and insurance products not in the interest of such homeowners, including the marketing or sale of an annuity as a condition of obtaining any [HECM].” 18 The Act provides no further guidance on the types of consumer protection regulations that HUD should issue.

Underfunding of Mandatory

HECM Counseling

During the reverse mortgage hearing, the Special

Committee on Aging expressed serious concerns about the inadequacy of resources to fund consumer counseling that is mandated prior to the consumer entering into a HECM.

19

To address this problem, the

Reverse Mortgage Act would allow HUD to use the

MIP (which fi nances FHA insurance of HECMs) to help pay for independent counseling services.

20

January 2008 | 2

Mortgage Banking & Consumer Credit Alert

In the December 12 th hearing, Senator McCaskill pointed out that HUD has set aside $3 million for

HECM counseling, yet one of the largest HECM counseling agencies expects to conduct 240,000 counseling sessions next year. At $100 per session, the shortfall would be over $20 million.

21

Currently, lenders are fi lling in the gap by paying for the counseling, and the Special Committee expressed concerns that this compromises the independence of the counselors. This in turn increases the risks to seniors of taking on fi nancial obligations ill-suited or even ruinous to them.

22

During the recent reverse mortgage hearing, Margaret

Burns, director of the FHA’s Single Family Program

Development, testifi ed that HUD is already in the process of developing new counseling protocols and will release the proposed regulations this spring.

According to Ms. Burns, HUD will tighten standards on HUD-certifi ed HECM counseling organizations by requiring that they be nonprofi t, independent

(from lender affi liations in particular), and objective organizations.

23

Further, she stated that standards will be imposed on individual HECM counselors for the fi rst time counseling organizations, not individual counselors).

HUD is considering requiring individuals who wish to be HECM counselors to undergo training and pass an examination. HUD would also like to require that in each consumer counseling session, counselors follow a specifi c set of questions that leads them through a range of topics designed to assess whether a

HECM is suitable for the consumer and whether any inappropriate fi nancial products are being offered in tandem with the HECM.

24

FUTURE LEGISLATIVE AND

REGULATORY ACTION ON REVERSE

MORTGAGES

In the coming months, lenders and others in the mortgage industry interested in the market for reverse mortgages and similar products will want to watch legislative and regulatory developments on both the federal and state levels. Below is a status update on the House and Senate FHA reform bills and the

Senate’s Reverse Mortgage Act, as well as a preview of several possible arenas for reverse mortgage policy changes.

„ Reconciliation of the House and Senate

Versions of FHA Reform Bills (H.R. 1852;

S. 2338) . As noted, the House of Representatives passed companion FHA legislation (H.R. 1852) in September 2007. The House and Senate bills were not reconciled for fi nal passage in 2007, but a conference committee is expected to report a fi nal bill early in 2008. The House version is similar to S. 2338 on the reverse mortgage front. Among other measures, the House version eliminates the cap on the number of HECMs that FHA may insure each year. In addition, H.R. 1852 allows

FHA to insure HECMs that are used to purchase homes, directs HUD to establish new origination fee limits, and requires HUD to study and report to Congress on the impact of reducing the MIP for

HECMs.

25

„ The Reverse Mortgage Proceeds Protection Act

(S. 2490) . The reverse mortgage bill introduced in the Senate by Senators McCaskill and Kohl was referred to the Senate Committee on Banking,

Housing, and Urban Affairs. The Committee is expected to take up consideration of the bill early in 2008. There is currently not a companion

House bill.

Lifting the HECM Cap .

Both the Senate and House versions of the FHA reform bill would eliminate the annual cap on the number of HECMs that lenders may make (currently 275,000). Senators Tom Coburn,

McCaskill and other policymakers have expressed concerns about lifting the cap until more information is available about the fi nancial impact of doing so,

26

funding for mandatory borrower counseling is increased, and stronger consumer protections are in place.

27

Lower Costs .

As noted, the Senate FHA

Modernization Act proposes reducing HECM origination fees. It also requires HUD to report to

Congress on the impact of lowering costs and fees of

HECMs—presumably because Congress intends to consider further lowering costs to reverse mortgage borrowers. In the recent reverse mortgage hearing,

Senators expressed concerns about whether lowering the MIP could jeopardize the actuarial soundness of the HECM insurance program.

28

Policymakers have suggested that lifting the cap on the number of

HECMs that can be made annually could facilitate lowering MIPs by creating a larger pool for premium-

January 2008 | 3

Mortgage Banking & Consumer Credit Alert collection, but Congress has indicated that it would like further study of this issue before acting.

29

Referral Arrangements .

The reverse mortgage hearing also highlighted Congress’s concern with the relationships among lenders and various types of fi nancial agents, particularly insurance agents offering annuities.

30

Senators and panel participants suggested that these relationships can create fi nancial incentives for lenders and agents to promote inappropriate and expensive products for seniors. No specifi c measures for addressing this concern were mentioned other than improving consumer counseling, but the hearing on

December 12 th suggested that Congress is interested in monitoring these relationships and could impose express restrictions if necessary. It is also possible the

HUD may attempt to address these concerns through regulations.

Suitability Criteria .

Testimony and Senators’ comments at the December 12 th hearing also suggested that policymakers may consider imposing criteria for reverse mortgage loans to ensure that seniors obtain reverse mortgages only if they are appropriate.

31

Senators and panel participants compared the boom in reverse mortgages, which are much more expensive than most “forward” mortgages, to the former popularity of subprime mortgages. To avoid a similar market meltdown in the reverse mortgage industry, hearing participants specifi cally discussed requiring consumer counselors to cover specifi c issues aimed at determining the appropriateness of a HECM for a particular borrower. As noted, Ms. Burns of

HUD testifi ed that HUD plans to incorporate these procedures in regulations due out next spring.

Long-Term Care Insurance .

In 2000, Congress passed amendments to the HECM program that would have permitted borrowers to waive the initial mortgage premium if all of the proceeds of the reverse mortgage were used to fund long-term care insurance.

32

HUD issued proposed regulations to implement the legislation, but received negative comments and determined not to issue fi nal regulations to implement the law.

33

Reverse mortgage hearing comments and testimony indicated that policymakers may be interested in clarifying permissible practices and borrower incentives related to the sale of long-term care insurance with reverse mortgages.

Proprietary Products .

Proposed legislation (both the Senate FHA Modernization Act and the Reverse

Mortgage Act) and impending HUD regulations are not aimed at proprietary reverse mortgage products— reverse mortgages that are not insured by HUD and not subject to mandatory counseling under federal law.

At the same time, however, the number of proprietary reverse mortgage and related products is growing.

Indeed, Mr. Don Redfoot of AARP testifi ed to the

Senate Special Committee on Aging that the AARP encourages lenders to develop new reverse mortgage products, including reverse mortgage products with lower loan limits and costs for borrowers with more modest fi nancing needs.

34

Policymakers appear to be concerned about reverse mortgages, and could turn their attention to proprietary products in 2008. Lenders and others in the reverse mortgage industry should watch legislation that reaches beyond HECMs, but potentially model certain

HECM program amendments.

State Law .

State legislatures and regulatory agencies are already responding to the remarkable rise of reverse mortgage lending. States with housing counseling requirements for reverse mortgage loans include, among others, New York, Illinois, and

Massachusetts.

35

In California, reverse mortgage lenders must refer a prospective borrower to a housing counseling agency for counseling and obtain a certifi cation that the borrower received the required counseling prior to accepting a fi nal application for a reverse mortgage or assessing any fees.

36

The

California rules require lenders to give each borrower a list of at least fi ve housing counseling agencies approved by HUD and at least two agencies that can provide counseling by telephone.

37

Statutes requiring specifi c authority to offer or make reverse mortgages are also in place in certain states, such as Hawaii

38

and North Carolina,

39

and other states may well follow suit. In addition, servicers and purchasers of reverse mortgage loans should be attentive to possible state enactments of authorization requirements for servicing, funding, and purchasing reverse mortgage loans.

Regarding the sale of annuities, it would be no surprise if states follow the lead of states such as California to restrict the sale of annuities with reverse mortgage

January 2008 | 4

Mortgage Banking & Consumer Credit Alert loans. California prohibits requiring the purchase of an annuity as a condition of obtaining a reverse mortgage loan.

40

This law also prohibits a reverse mortgage lender or broker from offering an annuity to the borrower or referring the borrower to anyone for an annuity purchase prior to the loan closing or before the borrower’s right to rescind the loan expires.

41

4 H.R. 1852 (110 th Cong.).

5 § 112(a).

8 § 112(c).

In addition, certain state and local “high cost” loan laws include reverse mortgages in the defi nition of

“high cost” loan (provided the reverse mortgages meet applicable points and fees or APR/interest threshold).

These laws include “high cost” statutes in Arkansas,

Illinois (including local laws in Chicago and Cook

County), and Utah.

With the growth of the reverse mortgage market, state legislatures and regulatory agencies can be expected to continue examining reverse mortgages to propose incentive programs that enhance the availability and utility of reverse mortgages, as well as strengthen consumer protections. In 2007, legislation to facilitate or regulate reverse mortgage legislation was introduced (but has not yet passed) in a number of states, including Colorado,

42

Minnesota,

43

New

Jersey,

44

and New York.

45

* * * * *

If you have any questions or would like more information, please contact Steve Kaplan,

202.778.9204,

steven.kaplan@klgates.com

,

Nanci Weissgold, 202.778.9314,

nanci.weissgold@ klgates.com

, or Lorna Neill, 202.778.9216,

lorna.

neill@klgates.com

.

9 The full amount of the origination fee that can be charged to the borrower and fi nanced in the loan is capped at the greater of $2,000 or 2% of the maximum claim amount on the

HECM loan. The maximum claim amount on the HECM loan currently is the lesser of the appraised value of the property or the maximum mortgage amount for a one-family residence that HUD will insure in an area under Section 203(b)(2) of the

National Housing Act (which, again, the FHA Modernization

Bill proposes to change to the government-sponsored conventional single-family loan cap, currently set at $417,000).

See 24 C.F.R. § 206.31(a)(1); HUD Handbook 4235.1 REV-1, ¶

1-4(A)(2); Mortgagee Letters 2006-07, 2006-04, and 2000-10.

10 See S. 2338 (110 th Cong.), § 112(d).

11 See id.

12 See id.

13 See id.

14 See Hearing on Reverse Mortgages , Comments of Sen.

McCaskill; Testimony of Prescott Cole (California Advocates for Nursing Home Reform), Carol Anthony, Don Redfoot

(AARP).

15 See S. 2490 (110 th Cong.), § 2.

16 See id.

17 See 12 U.S.C. § 1715z-20(d)(2)(B).

18 See S. 2490 (110 th Cong.), § 2.

ENDNOTES

19 See Reverse Mortgage Hearing , Comments of Sen.

McCaskill.

20 See S. 2490 (110 th Cong.), § 2.

21 See Reverse Mortgage Hearing , Comments of Sen.

McCaskill.

22 See id.

1 See Hearing on Reverse Mortgages before the U.S.

Senate Special Committee on Aging , 110 th Cong. (Dec. 12,

2007) (“Reverse Mortgage Hearing”). The Reverse Mortgage

Hearing included the testimony of representatives from the

Department of Housing and Urban Development (“HUD”),

AARP, California Advocates for Nursing Home Reform, James

B. Nutter & Company (retail and wholesale reverse mortgage lender), and the daughter of a victim of predatory reverse mortgage lending practices.

2 S. 2490 (110 th Cong.), Reverse Mortgage Proceeds

Protection Act (introduced December 12, 2007).

3 S. 2338 (110 th Cong.), FHA Modernization Act (passed by U.S. Senate on December 14, 2007).

23 See id.

, Testimony of Margaret Burns.

24 See id.

25 See H.R. 1852 (110 th Cong.), § 20.

26 See Bill Swindell, “Senate Passes FHA Bill to Calm Roiled

Housing Market,” National Journal Group, Inc.

(discussing

Sen. Coburn’s call for a Government Accountability Offi ce study on the impact of lifting the HECM cap).

27 See Hearing on Reverse Mortgages , Comments of Sen.

McCaskill.

January 2008 | 5

Mortgage Banking & Consumer Credit Alert

28 See id.

, Comments of Senators Smith and Kohl.

29 See H.R. 1852 (110 th Cong.), § 20.

30 See Hearing on Reverse Mortgages , Comments of Sen.

McCaskill (in particular).

31 See id., Testimony of Margaret Burns (HUD), Prescott Cole

(California Advocates for Nursing Home Reform), Comments of Senators Kohl and McCaskill.

32 See American Homeownership and Economic Opportunity

Act of 2000, Pub. L. No. 106-569, § 201.

33 See Hearing on Reverse Mortgages , Testimony of Margaret

Burns.

34 See id.

, Testimony of Don Redfoot.

35 See, e.g.

, N.Y. Real Prop. Law §§ 280(g), 280-a(j); 205

ILCS 5/6.1(e); Mass. General Laws c. 167E, § 7(e). Another example is Mont. Admin. R. § 8.111.403 (for loans made by the state board of housing pursuant to Mont. Code Ann., § 90-6-501 et seq.

).

36 See Cal. Civ. Code § 1923.2(j), (k).

37 See id.

38 See Haw. Rev. Stat. § 506-10. Specifi cally, this provision prohibits any person, other than a state or federally chartered or licensed lender, from offering reverse mortgage loans. Id.

The statute narrowly restricts the meaning of “reverse mortgage loan,” however, defi ning it to exclude a loan: (1) insured by

HUD; (2) intended for sale to Fannie Mae or Freddie Mac; or

(3) for which mortgage counseling is required under other state or federal laws. Id.

For the small set of reverse mortgage loans to which Hawaii’s mortgage statute applies, the statute does not further identify what Hawaii license would be needed, whether a license from any state would be suffi cient, or whether HUD approval would be acceptable for a “federally licensed lender.”

39 See N.C. Gen. Stat. § 53-258. North Carolina’s Reverse

Mortgage Act prohibits any nonexempt person or entity from making reverse mortgage loans without being approved by the state as an authorized reverse mortgage lender. See id.

Mortgage lenders licensed under the North Carolina Mortgage

Lending Act, id. §§ 53-243.01 et seq.

, must be separately authorized under the Reverse Mortgage Act before making reverse mortgage loans. The following types of entities are exempt from applying for authorization to engage in reverse mortgage lending, although they may request written confi rmation of their authorization from the Commissioner of Banks: a bank, savings institution, or credit union formed under the laws of North Carolina, any other state, or the United

States; or a wholly owned subsidiary of such an entity. See id.

§ 53-258.

40 See Cal. Civ. Code § 1923.2(i).

41 See id.

42 See S.R. 8 (CO 2007) (passed the Colorado Senate on May

2, 2007).

43 See H.F. 1401 (MN 2007) and S.F. 196 (referred to committee).

44 See S.B. 2186 (NJ 2007) and A.B. 2942 (NJ 2007) (referred to committee).

45 See S.B. 4061 (NY 2007), A.B. 4735 (NY 2007), A.B. 6720

(NY 2007), S.B. 1753 (NY 2007), A.B. 2551 (NY 2007), S.B.

1189 (NY 2007), S.B. 642 (NY 2007), and A.B. 822 (NY 2007)

(referred to committee).

January 2008 | 6

Mortgage Banking & Consumer Credit Alert

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January 2008 | 7

Mortgage Banking & Consumer Credit Alert

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