TRID 2.0: More Clarity and a Potential Fix for the "Black Hole"
By John I. Vong, CMB, CMT
August 22, 2017
John Vong, CMB, CMT, is president and co-founder of ComplianceEase, Burlingame, Calif. He can be reached at email@example.com.
The amendments to the Know Before You Owe/TILA-RESPA Integrated Disclosure rule issued last month were a long time coming, but overall were worth the wait.
TRID 2.0 addressed many of the pain points that our industry has struggled with over the past two years. The new rule becomes effective 60 days after it is published in the Federal Register, but compliance isn't mandatory until October 1, 2018.
From a Consumer Financial Protection Bureau-watcher's perspective, it appears that the Bureau heard and responded to the mortgage industry's concerns, but there are still a handful of large issues that remain. While the CFPB stopped short of immediately closing the "black hole" that generally prevents lenders from re-setting fee tolerances when a Closing Disclosure has been issued prematurely, it did issue a new proposed amendment to address this problem. Concerned about unintended consequences, the CFPB is asking for comments on the proposed "black hole" fix.
Having said that, industry reaction to TRID 2.0 was mixed. Some lenders expressed disappointment that additional cure provisions for violations were not included, while secondary market investors were pleased that TRID 2.0 addressed many ambiguities in the original rule that could potentially create assignee liability.
Probably the strongest negative reaction came from the title industry. Michelle Korsmo, the American Land Title Association CEO, opined in a press release that the rule still results in consumers not receiving accurate information about title insurance costs. She stated, "While the CFPB's disclosures have helped homebuyers better understand their mortgage costs, consumers would value their disclosures more if the CFPB showed the accurate costs of title insurance instead of the incremental costs."
Here are some of the more significant changes contained in the 560-page TRID 2.0 document:
--Clarification of "no tolerance fees." The new rule makes it clear certain products and services, such as property insurance, impound and escrow amounts, are still excluded from zero and 10 percent tolerances, even if they are paid to an affiliate of the lender. The only caveat is that the original estimates can't be unreasonably low. Also, the preamble to the amended rule reaffirms that "typographical errors regarding a settlement service...do not subject the charges for such a service to the zero percent tolerance category..." in most instances.
--Construction loan disclosures. The Bureau made a number of additions to Appendix D, and clarified how construction loan inspection and phase-specific fees should be disclosed before and after the project is completed. If the fees are collected after the project is completed, they must now be disclosed in an addendum to both the Loan Estimate and the CD. Additional clarifications were also made regarding how construction costs, existing lien payoffs and unsecured debt payoffs are disclosed.
--Written List of Providers. The CFPB said that changes could be made to Form H-27 without losing safe harbor protections. The amended rule also clarifies when a service is considered "shoppable." In addition, the Bureau said that a WLP may exclude a list of fee estimates not required by the lender, such as title search, notary, and fees for other administrative services.
--Re-disclosures after Rate Lock. A lender must issue a revised LE after the interest rate has been initially locked if no CD has been issued. Once a CD has been issued, the lender must issue a revised CD if the rate lock makes the CD inaccurate.
--Cost reductions after initial LE. The Bureau clarified that cost reductions of certain items don't automatically reset tolerances. Tolerance determinations are based on comparisons between "the charge paid by or imposed on the consumer" versus "the amount originally disclosed" or a revised estimate.
Based on our discussions with clients, the overall reaction to these changes seemed to be positive. However, many clients are still working their way through the documents and probably won't start implementing these changes in their systems and workflows until after the deadline for the GSE's Uniform Closing Dataset compliance has passed.
(Views expressed in this article do not necessarily reflect policy of the Mortgage Bankers Association, nor do they connote an MBA endorsement of a specific company, product or service. MBA Insights welcomes your submissions. Inquiries can be sent to Mike Sorohan, editor, at firstname.lastname@example.org; or Michael Tucker, editorial manager, at email@example.com.)