Issue #15: Preventing “fee-padding”

Issue #15: Preventing “fee-padding”

Within the obtain Public Comment, OCCR identified the growth, or at least the perception of a development, that loan providers had been increasing costs and points to an even just beneath the threshold that will qualify a loan as an even more heavily managed high-rate, high-fee “Section 32” loan. We asked commenters to share with us whether this perception had been a real possibility, and when what exactly might be done about this.

Our conclusion is fee-padding is occurring in Maine, so that as one good way to deal with the training we’re suggesting (see proposed bill connected as Appendix # 1, part 2) that the limit of “points and fees” that produces area 32 therapy, be lowered from 8% of financing quantity, to 5%.

We base this proposition from the presumption that the availability of loans in this range (between 5% points and charges, and 8% points and charges) is, in financial terms, “elastic, ” such that developing a brand new, reduced degree will likely not end up in an unwillingness in the element of loan providers to really make the majority that is vast of loans that currently fall within the range between 5% points-and-fees, and 8%. To phrase it differently, we genuinely believe that loan providers making loans with points and costs totaling 6%, 7% as well as 8%, will reduce charges on a lot of loans to 5%.

We additionally make this proposition with all the knowledge that other states that are nearbysuch as Massachusetts and Connecticut) currently have founded the reduced 5% limit within their state statutes. This modification can also be in keeping with proposals advanced level by Coastal Enterprises, Inc. (CEI), and also by AARP with its model home loan legislation work.

We believe that this proposition, along with stricter enforcement associated with the requirement that the GFE accurately reveal all costs within 3 times of application, should help reduce any that is“padding of. (See more conversation of the proposal in Issue #16’s feedback, below, on whether loan broker payment or home loan finance fees should really be “capped”. )

Issue #16: Finance fee ceilings, and loan broker payment caps

The August 30, 2006 request Public Comment asked whether Maine legislation ought to be amended to impose cost caps on broker payment, or even to establish maximum interest levels on home mortgages. After report about the commentary received, in addition to trying to other states for model approaches, OCCR suggests against such fee that is maximum or price ceilings. But, as mentioned into the discussion of problem #15, above, we do suggest that the limit for just what is really a high-rate, high-fee loan under Maine legislation, be lowered from its present 8% regarding the loan amount in points and costs, to 5%.

This proposition to lessen the threshold level to 5%, which will bring Maine into line with nearby states such as for example Massachusetts and Connecticut, wouldn’t normally prohibit the creating of that loan having a points-and-fees sum higher than 5% associated with loan quantity. Instead, it might simply matter such that loan to your consumer that is additional found in 9-A MRSA § 8-206-A, including: a) extra notices to consumers; b) limits on prepayment charges; c) debt-to-income ratio tests before particular conditions may be contained in the loan terms; d) limitations on default interest levels; ag e) a prohibition against negative amortization; and f) a prohibition against making loans entirely from the worth regarding the security.

Predicated on our experience with managing the financing industry in Maine, we think that decreasing the limit from an 8% points-and-fees trigger, to 5per cent, will likely not lead to a reduction that is substantial the loans offered to Maine customers. Instead, we think that 1 of 2 things can happen. Either 1) loans will still be built in the 5% – 8% points-and-fees range, and people loans will undoubtedly be susceptible to the high-rate, high-fee defenses; or 2) the points-and-fees amount is going to be lowered on many loans, so that these are generally created using terms at or underneath the brand new 5% points-and-fees limit.

Issue #17: managing settlement agents

OCCR asked commenters whether or otherwise not settlement that is independent must be controlled, because of the crucial part they perform within the closing process. The attached proposed bill (Appendix #1) does not contain such a provision although a majority of commenters favored the concept. Into the time that is relatively short with this research, OCCR have not had a chance to figure out 1) just how many settlement agents practice their trade in Maine; 2) for the total, just how many seem to be controlled expertly (for instance, numerous such agents are lawyers or workers of lawyers, answerable towards the Bar Overseers because of their closing-related tasks); or 3) the price towards the State of developing this type of regulatory system, nor just exactly how that expense will be restored.

In the event that Legislature believes that extra resources should always be appropriated to handle lending that is predatory, OCCR feels that initial consideration should always be fond of strengthening investigatory or appropriate resources at OCCR (see Issue #26, below), before considering applying an application to manage settlement agents.

As a apart, we remember that the Legislature has recently started to recognize the significance of settlement agents, and of the necessity to bring some legislation to keep on that industry. 33 MRSA § 525, “Duty of Settlement Agent, ” is a component of Maine’s “Funded payment Act” enacted in 1999, c. 145, §1. This area calls for settlement agents to disburse funds and promptly record mortgage papers after shutting.

Issue # 18: “Net tangible benefit”

If there’s two top hot-button dilemmas into the nationwide debate about predatory lending, these are typically 1) “net tangible benefits” and 2) obligation associated with secondary market. The latter problem is addressed in Issue #19, below, although we address the previous in this area.

Into the abstract, a web benefit that is tangible appears an easy task to figure out and simply enforced. Conceptually, this type of supply forbids the generating of financing unless, considering every aspect for the costs and regards to that loan, and considering all of the monetary circumstances associated with debtor, the creating associated with loan would end in a web tangible benefit to the debtor.

Nevertheless, this kind of test would put in a known amount of subjectivity into the financing procedure, and both loan providers and loan agents are united in strong opposition to this type of measure. They believe that this type of standard would provide a lot of discernment to regulators, or even private lawyers into the example of civil legal actions or class actions, and therefore the dedication of web concrete advantage could possibly be influenced by information never available towards the loan providers or agents, like the particular used to that your funds is supposed to be placed, or even monetary circumstances associated with the customer that the customer might not have revealed towards the lender or loan broker through the application procedure.

Proponents can draw help through the undeniable fact that net concrete advantages tests had been integrated into more than one multi-state that is recent (look at Ameriquest and domestic worldwide settlements), installment loans in maryland direct lenders and that a few states also have enacted web concrete advantage provisions. But, it’s important to understand that the defendants within the settlements that are multi-state happen amenable to such proposals simply because they had been resolving several thousand complaints and having to pay vast amounts in restitution and charges, despite doubting any wrongdoing. And overview of their state rules coping with the supply reveals that most of the time its application is restricted to refinances, frequently just those refinances shut an extra time using the lender that is same.

Finally, you should understand that tools already occur to deal with habits of unconscionable financing behavior. Loan providers and loan agents may retain their licenses just as long as they operate their organizations “fairly” (9-A M.R.S.A. §§ 2-302(2), 10-201). Further, the administrator might,

By legislation or order,… Prohibit acts or methods regarding the:

A. Home mortgages that the administrator discovers unfair or misleading…; and

B. Refinancing of home mortgages that the administrator discovers are connected with abusive lending techniques or which can be otherwise maybe not within the interest of this public that is borrowing.

9-A MRSA § 8-206-A (16).

Such a method, tailored to certain circumstances or trends discovered in this State, may show both more versatile and much more effective than statutory modifications, which could have harmful impact on the additional market valuations of Maine loans.

Problem #19: additional market accountability