«What is the purpose of the TILA RESPA Rule? The TILA-RESPA rule consolidates four existing disclosures required under TILA and RESPA for closed-end ...»
What is the purpose of the TILA RESPA Rule?
The TILA-RESPA rule consolidates four existing disclosures required under TILA and RESPA for closed-end credit
transactions secured by real property into two forms: a Loan Estimate that must be delivered or placed in the mail
no later than the third business day after receiving the consumer’s application, and a Closing Disclosure that must
be provided to the consumer at least three business days prior to consummation.
What Transactions does the Rule Cover?
The TILA-RESPA rule applies to most closed-end consumer credit transactions secured by real property. The TILA-RESPA rule does not apply to HELOCs, reverse mortgages or mortgages secured by a mobile home or by a dwelling that is not attached to real property (i.e., land).
When do I have to start following the TILA-RESPA rule and using the new Integrated Disclosures?
The new Integrated Disclosures must be provided by a creditor or mortgage broker that receives an application from a consumer for a closed-end credit transaction secured by real property on or after August 1, 2015.
Creditors will still be required to use the GFE, HUD-1, and Truth-in-Lending forms for applications received prior to August 1, 2015. As the applications received prior to August 1, 2015 are consummated, withdrawn, or cancelled, the use of the GFE, HUD-1, and Truth-in-Lending forms will no longer be used for most mortgage loans.
What are the general requirements for the Loan Estimate disclosure?
For closed-end credit transactions secured by real property (other than reverse mortgages), the creditor is required to provide the consumer with good-faith estimates of credit costs and transaction terms on a new form called the Loan Estimate. This form integrates and replaces the existing RESPA GFE and the initial TIL for these transactions. The creditor is generally required to provide the Loan Estimate within three-business days of the receipt of the consumer’s loan application.
If any information necessary for an accurate Loan Estimate disclosure is unknown, the creditor must make the disclosure based on the best information reasonably available at the time the disclosure is provided to the consumer, and use due diligence in obtaining the information. The creditor is responsible for delivering the Loan Estimate or placing it in the mail no later than the third business day after receiving the application.
Creditors generally may not issue revisions to Loan Estimates because they later discover technical errors, miscalculations, or underestimations of charges. Creditors are permitted to issue revised Loan Estimates only in certain situations such as when changed circumstances result in increased charges.
What are the general timing and delivery requirements for the Loan Estimate disclosure?
Generally, the creditor is responsible for ensuring that it delivers or places in the mail the Loan Estimate form no later than the third business day after receiving the consumer’s application. The Loan Estimate must also be delivered or placed in the mail no later than the seventh business day before consummation of the transaction.
Can a mortgage broker provide a Loan Estimate on the creditor’s behalf?
Yes. If a mortgage broker receives a consumer’s application, the mortgage broker may provide the Loan Estimate to the consumer on the creditor’s behalf. The provision of a Loan Estimate by a mortgage broker satisfies the creditor’s obligation to provide a Loan Estimate. If a mortgage broker provides the Loan Estimate to a consumer, the mortgage broker must comply with the three year record retention requirement.
What is considered a “business day” under the requirements for provision of the Loan Estimate?
A business day is a day on which the creditor’s offices are open to the public for carrying out substantially all of its business functions.
Are there circumstances where creditors are allowed to charge more than disclosed on the Loan Estimate?
www.MotiveLending.com Yes. A creditor may charge the consumer more than the amount disclosed in the Loan Estimate in specific
circumstances, described below:
Certain variations between the amount disclosed and the amount charged are expressly permitted by the TILARESPA rule;
The amount charged falls within explicit tolerance thresholds (and the estimate is not for a zero tolerance charge where variations are never permitted); or Changed circumstances permit a revised Loan Estimate or a Closing Disclosure that permits the charge to be changed.
What charges may change without regard to a tolerance limitation?
For certain costs or terms, creditors are permitted to charge consumers more than the amount disclosed on the
Loan Estimate without any tolerance limitation. These charges are:
Prepaid interest; property insurance premiums; amounts placed into an escrow, impound, reserve or similar account.
For services required by the creditor if the creditor permits the consumer to shop and the consumer selects a thirdparty service provider not on the creditor’s written list of service providers.
Charges paid to third-party service providers for services not required by the creditor (may be paid to affiliates of the creditor).
However, creditors may only charge consumers more than the amount disclosed when the original estimated charge, or lack of an estimated charge for a particular service, was based on the best information reasonably available to the creditor at the time the disclosure was provided.
What charges are subject to a 10% cumulative tolerance?
Charges for third-party services and recording fees paid by or imposed on the consumer are grouped together and subject to a 10% cumulative tolerance. This means the creditor may charge the consumer more than the amount disclosed on the Loan Estimate for any of these charges so long as the total sum of the charges added together does not exceed the sum of all such charges disclosed on the Loan Estimate by more than 10%. These charges
Charges for third-party services where:
o The charge is not paid to the creditor or the creditor’s affiliate; and o The consumer is permitted by the creditor to shop for the third-party service, and the consumer selects a third-party service provider on the creditor’s written list of service providers.
What if the creditor estimates a charge for a service that is not actually performed?
The creditor should compare the sum of the charges actually paid by or imposed on the consumer with the sum of the estimated charges on the Loan Estimate that are actually performed. If a service is not performed, the estimate for that charge should be removed from the total amount of estimated charges.
What if a consumer pays more for a particular charge for a third-party service or recording fee than estimated, but the total charges paid are still within 10% of the estimate?
A creditor may charge more than 10% in excess of an individual estimated charge in this category, so long as the sum of all charges is still within the 10% cumulative tolerance.
What if the creditor does not provide an estimate of a particular charge that is later charged?
Creditors also are provided flexibility in disclosing individual fees by the focus on the aggregate amount of all charges. A creditor may charge a consumer for a fee that would fall under the 10% cumulative tolerance but was not included on the Loan Estimate so long as the sum of all charges in this category paid does not exceed the sum of all estimated charges by more than 10%.
www.MotiveLending.com What charges are subject to zero tolerance?
For all other charges, creditors are not permitted to charge consumers more than the amount disclosed on the Loan Estimate under any circumstances other than changed circumstances that permit a revised Loan Estimate.
These zero tolerance charges are:
Fees paid to the creditor, mortgage broker, or an affiliate of either;
Fees paid to an unaffiliated third party if the creditor did not permit the consumer to shop for a third party service provider for a settlement service; or Transfer taxes.
When is a charge paid to a creditor, mortgage broker, or an affiliate of either?
A charge is paid to the creditor, mortgage broker, or an affiliate of either if it is retained by that person or entity. A charge is not paid to one of these entities when it receives money but passes it on to an unaffiliated third party.
What must creditors do when the amounts paid exceed the amounts disclosed on the Loan Estimate beyond the applicable tolerance thresholds?
If the amounts paid by the consumer at closing exceed the amounts disclosed on the Loan Estimate beyond the applicable tolerance threshold, the creditor must refund the excess to the consumer no later than 60 calendar days after consummation.
For charges subject to zero tolerance, any amount charged beyond the amount disclosed on the Loan Estimate must be refunded to the consumer.
For charges subject to a 10% cumulative tolerance, to the extent the total sum of the charges added together exceeds the sum of all such charges disclosed on the Loan Estimate by more than 10%, the difference must be refunded to the consumer.
What are the general requirements for the Closing Disclosure?
For loans that require a Loan Estimate and that proceed to closing, creditors must provide a new final disclosure reflecting the actual terms of the transaction called the Closing Disclosure. The form integrates and replaces the existing HUD-1 and the final TIL disclosure for these transactions. The creditor is generally required to ensure that the consumer receives the Closing Disclosure no later than three business days before consummation of the loan.
The Closing Disclosure generally must contain the actual terms and costs of the transaction. If the actual terms or costs of the transaction change prior to consummation, the creditor must provide a corrected disclosure that contains the actual terms of the transaction and complies with the other requirements including the timing requirements, and requirements for providing corrected disclosures due to subsequent changes. If the creditor provides a corrected disclosure, it may also be required to provide the consumer with an additional threebusiness-day waiting period prior to consummation.
The rule requires creditors to provide the Closing Disclosure three business days before consummation.
Is “consummation” the same thing as closing or settlement?
No, consummation may commonly occur at the same time as closing or settlement, but it is a legally distinct event. Consummation occurs when the consumer becomes contractually obligated to the creditor on the loan.
What are the general timing and delivery requirements for the Closing Disclosure?
Generally, the creditor is responsible for ensuring that the consumer receives the Closing Disclosure form no later than three business days before consummation.
How must the Closing Disclosure be delivered?
To ensure the consumer receives the Closing Disclosure on time, creditors must arrange for delivery as follows:
By providing it to the consumer in person.
www.MotiveLending.com By mailing, or by other delivery methods, including email. Creditors may use electronic delivery methods subject to compliance with the consumer consent and other applicable provisions of the Electronic Signatures in Global and National Commerce Act.
When is the Closing Disclosure considered to be received if it is delivered in person or if it is mailed?
If the Closing Disclosure is provided in person, it is considered received by the consumer on the day it is provided.
If it is mailed or delivered electronically, the consumer is considered to have received the Closing Disclosure three business days after it is delivered or placed in the mail.
However, if the creditor has evidence that the consumer received the Closing Disclosure earlier than three business days after it is mailed or delivered, it may rely on that evidence and consider it to be received on that date.
Can a settlement agent provide the Closing Disclosure on the creditor’s behalf?
Yes. Creditors may contract with settlement agents to have the settlement agent provide the Closing Disclosure to consumers on the creditor’s behalf. Creditors and settlement agents also may agree to divide responsibility with regard to completing the Closing Disclosure.
What if there is more than one consumer involved in a transaction?
In rescindable transactions, the Closing Disclosure must be given separately to each consumer who has the right to rescind under TILA.
When does the creditor have to provide the Closing Disclosure to the consumer?
Creditors must ensure that consumers receive the Closing Disclosure no later than three business days before consummation. Consummation is the time that a consumer becomes contractually obligated on the credit transaction, and may not necessarily coincide with the settlement or closing of the entire real estate transaction.
For purposes of providing the Closing Disclosure, the term business day means all calendar days except Sundays and legal public holidays specified in 5 U.S.C. 6103(a).
This requirement imposes a three-business-day waiting period; meaning that the loan may not be consummated less than three business days after the Closing Disclosure is received by the consumer. If a settlement is scheduled during the waiting period, the creditor generally must postpone settlement, unless a settlement within the waiting period is necessary to meet a bona fide personal financial emergency.
Does the three-business-day waiting period apply when corrected Closing Disclosures must be issued to the consumer?
Yes, in some circumstances. The three-business-day waiting period requirement applies to a corrected Closing
Disclosure that is provided when there are:
If other types of changes occur, creditors must ensure that the consumer receives a corrected Closing Disclosure at or before consummation.