Loan Guaranty: Ability-To-Repay Standards and Qualified Mortgage Definition Under the Truth in Lending Act

AGENCY:

Department of Veterans Affairs.

ACTION:

Interim final rule.

SUMMARY:

This document amends the Department of Veterans Affairs (VA) Loan Guaranty regulations to implement provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act, requiring that VA define the types of VA loans that are “qualified mortgages” for the purposes of the new Ability to Repay provisions of the Truth in Lending Act. This rule establishes which VA-guaranteed loans are to be considered “qualified mortgages” and have either safe harbor protection or the presumption that the borrower is able to repay a loan, in accordance with the new Ability to Repay provisions. The rule does not change VA's regulations or policies with respect to how lenders are to originate mortgages, except to the extent lenders want to make qualified mortgages.

DATES:

Effective Date: This interim final rule is effective May 9, 2014.

Comment Date: Comments must be received on or before June 9, 2014. While the standard comment period is 60 days, in order for VA to provide thorough responses to all comments and publish the final regulation as soon as possible with a target date of within 90 days of the publication of this interim final rule, we are limiting the period for comments to 30 days. VA believes it is important to publish the final rule soon because of the certainty the final rule will provide veterans and lenders. See below for further explanation.

ADDRESSES:

Written comments may be submitted through www.Regulations.gov;; by mail or hand-delivery to Director, Regulation Policy and Management (02REG), Department of Veterans Affairs, 810 Vermont Ave. NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. Comments should indicate that they are submitted in response to “RIN 2900-AO65—Loan Guaranty: Ability-to-Repay Standards and Qualified Mortgage Definition under the Truth in Lending Act.” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1068, between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461-4902 (this is not a toll-free number) for an appointment. In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT:

John Bell III, Assistant Director for Loan Policy and Valuation (262), Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632-8786. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION:

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), Public Law 111-203, 124 Stat. 1376 (2010), became law on July 21, 2010. The Dodd-Frank Act established as an independent agency the Consumer Financial Protection Bureau (CFPB) and charged it with implementing many reforms to Federal oversight of residential mortgage lending, including a requirement that lenders be able to demonstrate that borrowers are reasonably able to repay their mortgage loans at the time the loans are made. Public Law 111-203, Sec. 1411. As directed by the Dodd-Frank Act, the CFPB has issued rules regarding implementation of the Truth in Lending Act (TILA), 15 U.S.C. 1601, et seq. The CFPB rules became effective January 10, 2014. The CFPB has amended the rules, as explained below, several times since initial publication.

The Dodd-Frank Act also requires various Federal agencies to define which of their loans are qualified mortgages for the purposes of sections 129B and 129C of TILA and authorizes such agencies to exempt streamlined refinances from certain income verification requirements. Public Law 111-203, Secs. 1411 and 1412. In compliance with sections 1411 and 1412 of the Dodd-Frank Act, VA is in this rulemaking defining qualified mortgage to mean any loan guaranteed, insured, or made by VA, with certain limitations on streamlined refinances, also known as Interest Rate Reduction Refinance Loans (IRRRLs). The terms “streamlined refinance” and “IRRRL” are used interchangeably in this rule. VA is also specifying income verification requirements for IRRRLs.

Note on Comments and Publication of Final Rule

VA believes it is important to publish a final rule promptly after the publication of this interim final rule. Veterans want full assurance that the home loan benefit will remain easy to utilize, and lenders want the certainty that comes with a final rule. As such, VA will review comments as they are received. Once the comment period closes, VA will exercise all reasonable efforts to publish the final rule as quickly as possible, with a goal of closing out the full rulemaking process within 90 days of publication of this interim final rule.

General Definitions of Qualified Mortgage

Section 1412 of the Dodd-Frank Act amended section 129C of TILA, 15 U.S.C. 1601, et seq., to include a definition of a “qualified mortgage.” Public Law 111-203, Sec. 1412. Although the qualified mortgage definition applies generally to loans subject to TILA, a number of Federal agencies, including VA, are required to prescribe rules defining the types of loans they insure, guarantee, or administer, as the case may be, that are qualified mortgages. Id. Such rules may revise, add to, or subtract from the criteria used to define a qualified mortgage under section 129C of TILA, upon a finding that they are consistent with the purposes of TILA's provisions respecting the borrower's ability to repay in sections 129B and 129C. Id.

On January 30, 2013, the CFPB published its revision of Regulation Z, in which, among other things, it established a definition of “Qualified Mortgage.” 78 FR 6407. That CFPB final rulemaking also generally prohibits a creditor from making a mortgage loan unless the creditor determines that the consumer will have the ability to repay the loan. Id. at 6415.

The rule further identified two types of qualified mortgages. Id. at 6408. One type enjoys a rebuttable presumption that the creditor making the loan satisfied the borrower's ability-to-repay requirements. Id. With these types of loans, the presumption favors the assertion that the creditor complied with the ability-to-repay requirements unless the borrower proves—based on information that the creditor was aware of at the time the loan was made—that the consumer would be left with insufficient residual income or assets to meet living expenses after paying the mortgage and other debts. Id. The other type, safe harbor qualified mortgages, are those that are considered to have conclusively met all requirements of a qualified mortgage and a borrower's ability to repay a loan. Id.

Subsequent Regulatory Changes to Qualified Mortgage Definition

The issues CFPB must regulate are some of the most complex problems faced in the lending industry today. VA recognizes that CFPB must act nimbly to address myriad issues affecting many facets of the housing finance industry and that, while VA is an important part of the industry, VA's market share is relatively small.

CFPB rules published on January 30, 2013, created a temporary qualified mortgage applicable to VA-guaranteed loans, among other agency guaranteed loans. Under these rules, VA-guaranteed loans could be qualified mortgages even if they did not meet the 43 percent debt-to-income ratio applicable to many other types of qualified mortgages. 78 FR 6617.

CFPB has issued multiple rulemaking documents related to its original final rule, including (1) a concurrent proposal, published on January 30, 2013 (78 FR 6621); (2) a proposed revision to the final rule, published on April 18, 2013 (78 FR 23171); (3) a final rule official interpretation, published on June 12, 2013 (78 FR 35430); (4) a final rule official interpretation, published on July 24, 2013 (FR 78 FR 44686); (5) a final rule amendment, published October 1, 2013 (78 FR 60442); and (6) an interim final rule, published on October 23, 2013 (78 FR 62993).

Some VA stakeholders have expressed uncertainty regarding the impact of these amendments on the requirements for VA-guaranteed loans to be qualified mortgages under CFPB's regulations. For instance, the concurrent proposal published on January 30, 2013, stated that CFPB was proposing to exempt from the ability to repay requirements streamlined refinances made pursuant to a program administered by VA and other Federal agencies. See 78 FR 6623. However, the CFPB did not adopt this exemption in its final rule published on June 12, 2013, stating that the exemption from the ability to repay requirements for streamlined refinances was unnecessary in light of the temporary qualified mortgage provisions. See 78 FR 35471-3. CFPB explained in the preamble to its rule that while it did not believe that an exemption for streamlined refinances was appropriate: “[Under] the temporary qualified mortgage provisions in § 1026.43(e)(4), for instance, creditors need only comply with the documentation and underwriting requirements established by the respective Federal agencies, and need not apply the 43 percent debt-to-income ratio or follow the documentation and underwriting procedures applicable to the general category of qualified mortgages under § 1026.43(e)(3) and appendix Q.” 78 FR 35473. The Bureau noted, however, that under § 1026.43(e)(4), a loan that is eligible to be purchased, guaranteed, or insured by one of the Federal agencies (including VA), would still need to meet certain minimum requirements imposed by the Dodd-Frank Act, including the prohibitions on certain “higher-risk loan terms,” loan terms exceeding 30 years, or excessive points and fees. Id.

The CFPB published a further amendment on July 24, 2013, revising the temporary qualified mortgage provision applicable to loans eligible for government-sponsored enterprise (GSE) and federal agency purchase, insurance, or guaranty, including VA guaranty. Where the original provision, published on January 30, 2013, required that such a loan be “eligible to be guaranteed by the U.S. Department of Veterans Affairs,” 78 FR 6587, the revised provision required that the loan be “eligible to be guaranteed, except with regard to matters wholly unrelated to ability to repay, by the U.S. Department of Veterans Affairs,” 78 FR 44718 (emphasis added). The amendment also revised the CFPB's official commentary to this provision. As revised, comment 43(e)(4)-4 states that the provision “requires only that the creditor determine that the loan is eligible (i.e., meets the criteria) for [VA] . . . guarantee . . . at consummation.” 78 FR 44727. The comment further identifies methods for determining eligibility: “A valid underwriting recommendation by [an automated underwriting system] that relies on an Agency underwriting tool,” “compliance with the standards in the . . . Agency written guide in effect at the time,” “a written agreement between the creditor . . . and a[n] . . . Agency” permitting variations, and “an individual loan waiver granted by the . . . Agency to the creditor.” Id. However, “[i[n using any of the[se] methods . . ., the creditor need not satisfy standards that are wholly unrelated to assessing a consumer's ability to repay that the creditor is required to perform.” Id. For ease of reading, VA will refer to this change as the “July Revision.”

In the same rule, CFPB revised Appendix Q. Appendix Q provides the standards by which a creditor must assess a borrower's debts and income to determine whether the borrower's debt-to-income exceeds 43 percent for purposes of the CFPB's general qualified mortgage provision. See 78 FR 6589; 78 FR 44718; see also 12 CFR 1026.43(e)(2)(vi). As revised in the July amendment, Appendix Q states that “a creditor may not rely on Agency or GSE guidance to reach a resolution contrary to that provided by the following standards, even if such Agency or GSE guidance specifically addresses the particular type of debt or income . . .” Id.

Questions About the July Revision, Appendix Q, and Debt-to-Income Ratios

After the publication of the amendments in June and July 2013, some VA stakeholders raised questions about what requirements might apply to VA. These stakeholders had originally believed CFPB's rule would not substantially affect VA's program requirements, but raised concerns to VA regarding the effect of the June and July 2013 publications. Two important areas of concern were income verification requirements for IRRRLs and debt-to-income calculations for originations and refinances other than IRRRLs.

VA has fielded numerous questions related to the July Revision and whether it means all IRRRLs will be subject to income verification requirements. As noted above, the preamble to the CFPB's rule published in June stated that “[u]nder the temporary qualified mortgage provisions in § 1026.43(e)(4), for instance, creditors need only comply with the documentation and underwriting requirements established by the respective Federal agencies, and need not apply the 43 percent debt-to-income ratio or follow the documentation and underwriting procedures applicable to the general category of qualified mortgages under § 1026.43(e)(3) and appendix Q.” 78 FR 35473. Also in the preamble to the July rule, CFPB stated that the July Revision was intended “to make clear that matters wholly unrelated to ability to repay will not be relevant to determination of [qualified mortgage] status.” 78 FR 44686, July 24, 2013. Lenders have nonetheless informed VA that as long as they have any doubts, they will proceed as if the income verification requirements apply to IRRRLs, even though the Dodd-Frank Act provides for a specific exemption, as do VA regulations. See Public Law 111-203, Sec. 1411; 38 CFR 36.4307. VA guaranteed over 300,000 IRRRLs in fiscal year (FY) 2013. VA estimates that, had lenders been required to verify income for IRRRLs in the same manner that they verify income for purchase-money guaranteed loans, the average closing time for an IRRRL would have taken two to four weeks longer.

In addition, many VA stakeholders have raised concerns about the debt-to-income ratio. According to these stakeholders, one interpretation of the CFPB rule seems to exempt VA loans from the CFPB debt-to-income requirements of 12 CFR 1026.43(e)(2)(vi). Under 12 CFR 1026.43(e)(4), VA guaranteed loans are qualified mortgages with safe harbor protections if they also (i) provide for regular periodic payments, (ii) do not exceed a term of 30 years, and (iii) include points and fees that do not exceed specified amounts. Note: The three requirements summarized here are more fully described at 12 CFR 1026.43(e)(2)(i)-(iii). As debt-to-income ratio requirement is not one of those, the argument is that it does not apply to VA-guaranteed loans. The preamble and official commentary discussed above support this position. Also supporting this position is the small entity compliance guide published by the CFPB. The guide states: “To meet the Temporary QM definition, loans must be underwritten using the required guidelines of the [GSE/Agency] entities above, including any relevant DTI guidelines. They do not have to meet the 43 percent debt-to-income ratio threshold that applies to General QM loans. The creditor does not have to satisfy GSE or agency standards which are wholly unrelated to the credit risk or underwriting of the loan or any standards which apply after the consummation of the loan.” Ability-to-Repay and Qualified Mortgage Rule Small Entity Compliance Guide at 33, http://files.consumerfinance.gov/f/201401_cfpb_atr-qm_small-entity-compliance-guide.pdf (emphasis in original).

Some VA stakeholders have suggested that there might be another interpretation of the CFPB's rules. Since Appendix Q states that a creditor may not rely on Agency guidance to reach a resolution of the appropriate treatment of a specific kind of debt or income contrary to the resolution provided by Appendix Q, some stakeholders have suggested to VA that the 43 percent debt-to-income ratio will apply after all. In FY 2013, there were 95,198 VA-guaranteed loans that exceeded the 43 percent debt-to-income ratio. VA understands that lenders may not make similar loans going forward if the loans are not qualified mortgages with safe harbor protections. Alternatively, the perceived risk of non-qualified mortgage loans may cause investors in the marketplace to artificially deflate the prices they would pay for VA loans, which would lead to lenders increasing their loan prices to veterans to meet that shortfall. This is due in part to VA's maximum 25 percent guaranty, as opposed to the 100 percent guaranty provided by other Federal agencies.

CFPB published another amendment in October 2013. See 78 FR 60382, Oct. 1, 2013. This time the rule removed the July Revision, at least with regard to VA. 78 FR 60442, Oct. 1, 2013. Another amendment was published three weeks later reinstating the July Revision. See 78 FR 62993, Oct. 23, 2013. The amendment explained that the omission of the July Revision was inadvertent and no substantive change was intended. 78 FR 63002, Oct. 23, 2013.

VA has attempted to eliminate the uncertainty by explaining to stakeholders that, in VA's view, neither the July Revision nor Appendix Q changes the way debt-to-income ratio affects the underwriting of VA-guaranteed loans. Some stakeholders continue to advise, however, that the issue goes beyond education or training. They seek legal certainty, and advise that in the absence of the legal certainty they seek, they are concerned whether investors will continue to view VA-guaranteed loans as high-quality investments that warrant premium pricing.

VA does not have authority to state with legal effect the proper interpretation of CFPB's rules. CFPB has the authority to interpret, enforce, and amend the rules CFPB promulgates. Courts and Congress could also have a role in resolving any issues surrounding the merits of the legal interpretations explained above.

As a result, VA's approach in this rule is to define which VA loans satisfy the qualified mortgage requirements, notwithstanding other limitations. In other words, VA may not be able to provide a definitive interpretation of CFPB's rule, but VA can make sure that VA's rule removes stakeholder uncertainties concerning VA loans. Since VA's goal is to ensure that veterans' benefits are delivered without interruption, additional burden, or cost to veterans, VA intends through this interim final rule to quell such concerns by specifying exactly what is required for a VA loan to be considered a qualified mortgage with safe harbor protections.

VA's Interim Final Rule

In this interim final rule, VA is amending 38 CFR 36.4300(b) to establish that almost all VA loans that meet current VA underwriting standards will be safe harbor qualified mortgages with regard to the revised TILA Ability to Repay provisions. In paragraph (b)(1), VA defines safe harbor qualified mortgage as one that meets the Ability-to-Repay requirements of sections 129B and 129C of TILA regardless of whether the loan might be considered a high cost mortgage transaction as defined by section 103bb of TILA (15 U.S.C. 1602bb). Paragraph (b)(2) states that subject to certain exceptions pertaining to IRRRLs, any guaranteed or insured loan made in compliance with this subpart is a safe harbor qualified mortgage. There are some VA IRRRLs which will be considered rebuttable presumption qualified mortgages instead. Those are described later in this preamble.

Paragraph (b)(3) incorporates without change CFPB's category of exempted transactions, except that VA is omitting reverse mortgages because they are not mortgages that VA guarantees, insures, or makes. Under CFPB's rule, 12 CFR 1026.43(a), exempted transactions are not subject to challenge under the ability-to-pay requirements of TILA (15 U.S.C. 1639C).

With regard to the loans that are subject to the ability-to-repay provisions (i.e., loans other than the type described in § 36.4300(b)(3)), VA and CFPB's definitions of qualified mortgage may differ. To the extent there are differences between CFPB's definition and VA's, VA intends for its definition of qualified mortgage to loans guaranteed, insured, or made by VA to preempt rules that may seem contrary to VA's. This would include those loans which would fit under VA's definition, but not necessarily under the CFPB definition (i.e., negative amortization, documentation requirements for IRRRLs, minimum FICO score documentation, and in one possible legal interpretation, debt-to-income ratios). Congress has authorized VA to deliver veterans' benefits in a way that helps as many veterans as possible. In so doing, VA's statutory framework expressly includes authority for negative amortizing loans under certain circumstances, streamlined refinances that are simply improving a borrower's ability to repay a loan that the Secretary has already guaranteed under more stringent underwriting guidelines, and Secretarial discretion to guarantee loans after taking into consideration the unique circumstances that affect veterans.

Despite some of the differences between VA's definition and CFPB's, VA has made a finding that, for the following reasons, VA's definition is consistent with TILA. Pursuant to 38 U.S.C. 3710, VA already has in place an extensive regulatory framework for determining whether a borrower is a satisfactory credit risk to obtain a loan guaranteed or insured by VA. Specifically, the regulations found at 38 CFR 36.4340 and 36.4313 include credit underwriting standards such as debt-to-income ratios, criteria for evaluating the reliability and stability of the income of a veteran, procedures for ascertaining and verifying the monthly income required by the veteran to meet the anticipated loan payment terms, residual income standards, allowable fees and charges to be paid at closing, and document retention requirements for lenders.

VA's Underwriting Standards for Qualified Mortgages

VA's current underwriting standards for guaranteed loans are consistent with, if not prototypical for, the generally applicable definition of qualified mortgage in TILA. VA's rules already require full underwriting of all origination loans such as purchase money loans and refinances other than IRRRLs. By statute, the maturity of a VA-guaranteed loan at the time of origination shall not be more than thirty years and thirty-two days. See 38 U.S.C. 3703(d)(1). VA requires that loans generally be amortized in equal periodic payments that are substantially equal. See 38 CFR 36.4310. VA requires that discount points be reasonable as determined by the Secretary of Veterans Affairs. See 38 CFR 36.4313(d)(7)(ii)(C). These requirements would seem to correspond to those in CFPB's rule at 12 CFR 1026.43(e)(2)(i)-(iii).

Also, as with CFPB's rule, VA's rule already requires lenders to verify assets, employment, credit reports, and the accuracy of all other information provided in support of a purchase money origination loan or a refinance that is not an IRRRL. See 38 CFR 36.4340(j). VA regulates allowable fees and charges that may be charged to or paid by a veteran borrower. See 38 CFR 36.4313. VA has a structure in place for determining acceptable debt-to-income ratio. See 38 CFR 36.4340(c). It should be noted, too, that in addition to all of these requirements, VA has had a longstanding requirement for residual income to ensure that the borrower has sufficient income to cover family living expenses after meeting monthly mortgage and debt obligations. See 38 CFR 36.4340(e).

Where VA's rule differs somewhat from CFPB's is that VA must also balance credit underwriting with its mission of serving veterans. For instance, VA makes room for limited underwriting exceptions when a debt-to-income ratio might not provide a complete picture of a borrower's ability to repay a loan. See 38 CFR 36.4340(c). VA also permits underwriters to make judgment calls based on a veteran's unique circumstances, such as when recently discharged veterans have a limited credit history. See 38 CFR 36.4340(g). A key tenet of the VA Home Loan program is the allowance it provides to underwriters to review a veteran's entire loan profile and consider all compensating factors in order to determine the credit worthiness of the veteran. It is not one characteristic alone that reveals whether a veteran maintains the ability to repay a loan, but the culmination of all characteristics in a veteran's profile. Veterans show a high degree of borrowing responsibility as a population, which is borne out by the fact that VA's loans performed better than even conventional loans during the peak of the financial crisis. According to the Mortgage Bankers Association National Delinquency Survey, as of the second quarter 2013 VA has held the lowest foreclosure rate for the past 22 quarters and the lowest seriously delinquent rate for 15 of the past 18 quarters when compared to prime, subprime, and Federal Housing Administration (FHA) loans.

Accordingly, this rule amends 38 CFR 36.4300 by designating as safe harbor qualified mortgages all purchase money origination loans and refinances other than certain IRRRLs guaranteed or insured by VA. Such a designation helps to assure veterans that they can continue using their benefits to obtain loans on favorable terms, while also easing any liability concerns expressed by lenders making VA-guaranteed loans and any marketplace concerns about the stability of investing in VA-guaranteed loans.

Qualified Mortgage Status for VA Direct Loans

In addition to designating qualified mortgage status for VA-guaranteed and VA-insured loans, this rulemaking is designating as a qualified mortgage any loan that VA makes directly to a borrower. One such type of loan, authorized in 38 U.S.C. 3711, is typically made to recipients of a Specially Adapted Housing grant. Another type, authorized in 38 U.S.C. 3761, is made to Native American veterans who live on trust lands. A third, which VA calls a vendee loan, is authorized in 38 U.S.C. 3720 and 3733, and is made to purchasers of properties VA acquires as a result of foreclosures in the guaranteed loan program. Given that each of these types of loans is required to meet either the same or substantially similar standards as those prescribed for the guaranteed program, there is no reason to categorize them differently for the purposes of a borrower's ability to repay them.

Accordingly, VA is amending 38 CFR 36.4500 by stating that all VA direct loans, Native American direct loans, and vendee loans are safe harbor qualified mortgages for the purposes of sections 129B and 129C of TILA. VA is using the same definition of safe harbor qualified mortgage as in § 36.4300(b)(1). We also amend the section heading and include the authority citation to 15 U.S.C. 1639C(b)(3)(B)(ii) and 38 U.S.C. 3710 for new § 36.4500(c). As a conforming amendment, VA is revising § 36.4501 to define “Vendee loan” as a loan made by the Secretary for the purpose of financing the purchase of a property acquired pursuant to chapter 37 of title 38, United States Code. We also include the authority citation to 38 U.S.C. 3720 and 3733.

We are redesignating current paragraph (c) of § 36.4500 as paragraph (d) and also make a few conforming changes to include headings for 38 CFR 36.4500(a), (b), and newly redesignated paragraph (d) so that they are consistent with the format of newly added paragraph (c). Each paragraph will now have its own heading as follows: “Applicability to direct loans” for paragraph (a); “Applicability to direct loans to Native Americans” for paragraph (b); “Safe harbor qualified mortgage” for paragraph (c); and “Restatement” for paragraph (d).

Safe Harbor Versus Rebuttable Presumption Qualified Mortgages—IRRRLs

While all VA IRRRLs will be considered qualified mortgages, not all will be safe harbor qualified mortgages. The ones that are not safe harbor qualified mortgages, meaning that they cannot conclusively meet the Ability-to-Repay requirements, are qualified mortgages entitled to a presumption that they meet the Ability-to-Repay requirements of the Dodd-Frank Act. Unlike a safe harbor qualified mortgage, a rebuttable presumption qualified mortgage provides the borrower with the opportunity to argue that the lender did not make a good faith determination that the borrower would have a reasonable ability to repay the loan. (Provided a loan meets VA underwriting standards and complies with the requirements of 38 CFR 36.4300-36.4393, inclusive, it will be a VA guaranteed loan regardless of whether it is considered a safe harbor qualified mortgage or a rebuttable presumption qualified mortgage or neither under TILA.)

In order for an IRRRL to be considered a safe harbor qualified mortgage, the loan must meet all of the requirements of 36.4300(c)(1): (i) The loan being refinanced was originated at least 6 months before the new loan's closing date, and the veteran has not been more than 30 days past due during the 6 months preceding the new loan's closing date; (ii) the recoupment period for all allowable fees and charges (see 38 CFR 36.4313) financed as part of the loan or paid at closing does not exceed thirty-six (36) months; and (iv) all other VA requirements for guaranteeing an IRRRL are met.

The purpose of an IRRRL is to place veterans into a better financial position by (i) reducing their interest rate in effect lowering their payment, (ii) reducing the term of the loan which would reduce the total of payments on the loan, or (iii) reducing their concern for market fluctuations by converting a loan from an ARM to a fixed rate. In establishing a “cooling off” period and recoupment requirement, VA intends to keep the tenets of the IRRRL program strong by ensuring that veterans who obtain an IRRRL are placed in a better financial position. VA believes that a veteran who has recently undergone the rigorous underwriting process associated with loan origination, and who is still within six months of obtaining the loan, should give him or herself time to understand the benefits of the original loan. If a veteran is experiencing financial hardships or other concerns during the first six months of the loan, VA has alternative means to help the veteran navigate through those issues outside of an IRRRL. The recoupment period helps disclose to the veteran the true costs associated with refinancing a loan. In FY 2013, 308,332 IRRRLs were originated and 12,900 (4%) loans would have failed to meet the seasoning requirement in this rule. Currently, data is not available to address the number of files in FY 2013 that would be affected by the 36 month recoupment requirement.

A proposed IRRRL that does not meet the seasoning and recoupment requirements of section 36.4300(c)(1) is still considered a qualified mortgage, but it will not have the safe harbor protection. Instead, it will only be considered a qualified mortgage with the presumption that a borrower has the ability to repay the loan. VA believes that a veteran should be able to take advantage of any opportunity that puts the veteran in a better financial situation. To make it effectively impossible for a veteran to refinance a loan solely because a veteran has not been in the home for the prescribed period or because the recoupment might fall just short of the requirement seems overly restrictive. At the same time, VA believes that lenders and borrowers should proceed with caution in such circumstances and understand that there is some risk associated with these sorts of loans. As such, VA has determined that the various interests are best balanced by designating such loans as qualified mortgages, but only to the extent that they provide a presumption of the borrower's ability to repay.

A proposed IRRRL that does not meet the requirements for exemption of income verification, as explained below, must receive prior approval from VA to be guaranteed. If VA grants approval, the IRRRL will satisfy the requirements of a qualified mortgage with the presumption that the borrower is able to repay the loan. Safe harbor protections will only apply to such an IRRRL if it also meets the seasoning and recoupment requirements.

In the rule text we also include the authority citation to 15 U.S.C. 1639C(b)(3)(B)(ii) and 38 U.S.C. 3710 for new § 36.4300(c)(1) and make a few conforming changes. The conforming changes redesignate current paragraph (b) of 38 CFR 36.4300 as paragraph (e), and add headings for 38 CFR 36.4300(a) and newly redesignated paragraph (e) so that they are consistent with the format of newly added paragraphs (b) thru (d). Each paragraph will now have its own heading as follows: “Applicability to guaranteed loans” for paragraph (a); “Safe harbor qualified mortgage” for paragraph (b); “Interest rate reduction refinancing loans (IRRRLs)” for paragraph (c); “Effect of indemnification on qualified mortgage status” for paragraph (d); and “Restatement” for paragraph (e).

IRRRL Income Verification Requirements

VA is exercising its authority under section 1411 of the Dodd-Frank Act to exempt IRRRLs from many of the income verification requirements of TILA. In 2009, when Congress began deliberating the requirements associated with income verification, the bills introduced to address the issues did not include an exemption for VA IRRRLs. See H.R. 1728 EH, 111th Congress (2009-2010); H.R. 4173 RFS, 111th Congress (2009-2010). By 2010 when the Dodd-Frank Act was passed, the law expressly allowed VA to exclude its IRRRLs from income verification requirements. Congress worked closely with VA in drafting the final section 1411 to ensure that the majority of veterans who wanted to take advantage of the IRRRL program would be able to continue to do so.

An IRRRL can only be made if it is to refinance a loan that VA has already guaranteed. 38 U.S.C. 3710(a)(8). As explained above, all VA-guaranteed loans must meet VA's strict underwriting standards at origination. Loan proceeds from an IRRRL can only be used to pay off the original principal balance and to finance closing costs; the veteran cannot receive cash back. See 38 U.S.C. 3710(e)(1)(C).

Pursuant to 38 U.S.C. 3710(e)(2), an IRRRL is guaranteed without regard to the amount of outstanding entitlement available for use by the veteran, and the amount of such entitlement is not charged as a result of a guaranty provided for an IRRRL. The IRRRL is deemed to have been obtained with the guaranty entitlement used to obtain the loan being refinanced. In other words, for the purposes of the benefit, the IRRRL is essentially the same loan as the original, the key difference being that the veteran should be in a better financial position than before. The veteran is either paying a lower interest rate, meaning a reduced monthly payment, or the veteran is in a fixed-rate loan and no longer subject to market fluctuations associated with adjustable rate mortgages. If the veteran could afford the original loan, then the idea is that the IRRRL should be even more affordable.

As explained above, CFPB originally proposed that VA streamlined refinancing would be exempt from CFPB's income verification requirements. In response to the rule, most commenters supported the proposed exemption. 78 FR 35472. One consumer advocate group feared, however, that the exemption would lead to serial refinancing and equity-stripping, usually affecting those consumers who are the most vulnerable. Id.

The consumer advocate's comment highlighted a possible vulnerability in the IRRRL program. Some borrowers are easily enticed into refinancing their loans simply by understanding that the refinance can lead to two months without making a mortgage payment; the current month of the refinance and a second month due to the interest financed into the new loan. Other borrowers become fixated on a lower interest rate provided by an IRRRL without understanding that they might not ever recoup their investment of closing costs. That is why VA has defined safe harbor qualified mortgage to exclude IRRRLs that put a veteran at risk of equity-stripping. By classifying such an IRRRL as a rebuttable presumption qualified mortgage rather than a safe harbor qualified mortgage, VA is providing a disincentive for lenders to make these sorts of loans. Nevertheless, as shown above, VA estimates that only four percent of its IRRRLs guaranteed in FY 2013 would have failed to meet the proposed seasoning requirement.

VA believes it is unfair to negate the income verification exemption when it seems only to help the overwhelming majority of veterans who obtain an IRRRL. VA estimates that if the exemption were not protected, the closing time for an IRRRL would be delayed on average for two to four weeks. Lenders have expressed concern that time and costs associated with internal income verification procedures (e.g., hiring processors and underwriters to request the verification and review its contents) would affect the borrower negatively in price and closing time delays. VA does not have the means to track the exact costs or delays, but lenders have indicated those additional timeframes and enhanced process procedures if income verification was required.

Accordingly, in new § 36.4340(b)(2), VA is exempting streamlined refinances from income verification requirements as long as the following Dodd-Frank Act conditions are met:

(i) The veteran is not 30 days or more past due on the loan being refinanced;

(ii) The proposed streamlined refinance does not increase the principal balance outstanding on the prior existing residential mortgage loan, except to the extent of fees and charges allowed by VA;

(iii) Total points and fees payable in connection with the proposed streamlined refinance loan are in accordance with 12 CFR 1026.32, will not exceed 3 percent of the total new loan amount, and are in compliance with VA's allowable fees and charges found at 38 CFR 36.4313;

(iv) The interest rate on the proposed streamlined refinance is lower than the interest rate on the loan being refinanced, unless the borrower is refinancing from an adjustable rate to a fixed-rate loan, under guidelines that VA has established;

(v) The proposed streamlined refinance is subject to a payment schedule that will fully amortize the IRRRL in accordance with VA regulations;

(vi) The terms of the proposed streamlined refinance do not result in a balloon payment, as defined in TILA; and

(vii) Both the residential mortgage loan being refinanced and the proposed streamlined refinance satisfy all other VA requirements.

If a streamlined refinancing does not satisfy all seven of the criteria, above, the lender must verify the income in accordance with standards set forth in VA's regulation at 38 CFR 36.4340 and with those that are generally applicable under CFPB's regulations on TILA.

VA's goal through this rulemaking is to protect the integrity of the Home Loan program and provide veterans an assurance that they are truly improving their financial position when proceeding with an IRRRL. The seasoning and recoupment requirements discussed above, as well as the income verification exemption provided when certain criteria are met, all serve to further this goal.

In addition, VA is redesignating current paragraph (b) of § 36.4340 as paragraph (b)(1) and adding a new paragraph (b)(2). We are also including an authority citation to 15 U.S.C. 1639C(a)(5) and 38 U.S.C. 3710 for new § 36.4340(b)(2). In current § 36.4340(a), the reference to § 36.4807 is revised to refer to § 36.4307. The reference to § 36.4807 was a typographical error.

Indemnification Agreements and Qualified Mortgage Status

Pursuant to 38 U.S.C. 3710(g)(4), VA is authorized to seek civil penalties if VA determines a lender has knowingly and willfully made a false certification with regard to compliance with VA's credit information and loan processing standards. It is important to note that this sort of violation does not necessarily mean fraud. If criminal fraud is suspected, VA will notify the Office of Inspector General. 38 CFR 1.201. Sometimes during an audit of a lender VA does not find fraud but does find a loan that was so egregiously underwritten that VA believes the penalties might be applicable. As an alternative to the penalties, VA may agree, pursuant to 38 U.S.C. 3720, to a compromise and accept the lender's indemnification agreement.

With this rule, VA is adopting a standard similar to the Department of Housing and Urban Development (HUD) with regard to indemnification agreements. HUD, in its final rule published December 11, 2013, clarified that “an indemnification demand or resolution of a demand that relates to whether the loan satisfied relevant eligibility and underwriting requirements at time of consummation may result from facts that could allow a change in qualified mortgage status, but the existence of an indemnification does not per se remove qualified mortgage status.” 78 FR 75220-75221, Dec. 11, 2013. VA is adopting, § 36.4300(d), the same language as HUD for VA-guaranteed loans that are subject to indemnification agreements.

Consultation With CFPB

Section 1412 of the Dodd-Frank Act directs VA to consult with CFPB regarding this rulemaking. Accordingly, on May 6, 2013, VA submitted a draft of this interim final rulemaking to the CFPB Office of Regulation. CFPB attorneys raised a number of suggestions for revising the preamble language to this document, but indicated that they did not object to the content or intent of this interim final rule. CFPB's suggestions have been incorporated into the text of the preamble. In January of 2014, CFPB reviewed the rule and made additional suggestions. We have incorporated those suggestions into this interim final rule, and rely on this consultation as a further finding that this rule is consistent with the requirements of the Dodd-Frank Wall Street Reform and Consumer Financial Protection Act.

Administrative Procedure Act

In accordance with 5 U.S.C. 553(b)(B) and (d)(3), the Secretary of Veterans Affairs finds that there is good cause to dispense with the opportunity for advance notice and opportunity for public comment and good cause to publish this rule with an immediate effective date. VA is issuing this rulemaking as an interim final rule. VA sees an urgent need to clarify for veterans, lenders, and investors the applicability and potential effect of the qualified mortgage requirements on VA's programs. VA understands that while our interpretation is such that under CFPB's Temporary Qualified Mortgage (TQM) rules, VA would have been exempt from the debt-to-income ratio rule and the points and fees rule, some lenders have expressed a different interpretation of this rule. VA has been advised by the industry that many lenders may not make loans that are not considered “qualified mortgages.” Additionally, stakeholders have voiced concerns that the uncertainty surrounding the applicability of TQM for VA loans could cause upheaval in the delivery of benefits to veterans. This type of uncertainty may lead investors to decrease the prices they will pay, causing lenders to increase the prices they charge veterans and affecting a veteran's ability to obtain mortgages.

VA has identified 95,198 of its purchase and cash-out refinance loans guaranteed in FY 2013 that would have exceeded the debt-to-income ratio of 43 percent under CFPB's rule. Though VA cannot predict how many loans would not have been made had CFPB's rule been in place and lenders not interpreted TQM to exclude VA from the debt-to-income ratio rule, up to 95,198 veterans would not have been able to obtain a VA home loan or would have been subject to higher costs. VA has examined its FY 2013 loan data and identified 4,734 loans whose interest rates exceeded the national Average Prime Offer Rate (APOR) by the CFPB standard of 150 basis points. Applying CFPB's high-interest rate loan provisions to VA, without VA's rule in place, 4,734 veterans may not have been able to obtain a VA home loan or would have been subject to higher loan costs. Consequently, VA believes an interim final rule is necessary to re-stabilize the market for VA loans and to assure program participants, especially those who are veterans, that VA's programs are not undergoing large-scale changes.

VA has also been advised that, without the explicit statements issued under this rule, veterans could see the costs of VA loans increase, particularly with regard to IRRRLs, as much out of uncertainty as any concrete requirement imposed by TILA rules. VA has identified a total of 308,332 IRRRLS guaranteed in FY 2013 that would not have met CFPB's income verification requirements. Assuming that some of these loans would not have been made had CFPB's verification requirements been applicable, up to 308,332 veterans would not have been able to refinance their home loan or would have been subject to higher loan costs.

VA also is concerned that investors will demur from purchasing mortgage backed securities of VA-guaranteed loans due to perceived issues regarding what constitutes “safe harbor” without issuance of formal guidance on the qualified mortgage rules from VA. Issuing this rule will help to remove these perceptions and allow veterans to continue to utilize the benefit they have earned without bearing the brunt of increased pricing and limited availability of the VA product. Veterans, lenders, and investors have expressed concern over the applicability and potential effect of CFPB's qualified mortgage definition on the VA Home Loan program. VA has engaged in an extensive drafting process to assure that this rulemaking comprehensively addresses and eases the concerns expressed by these stakeholders.

Executive Orders 12866 and 13563

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” which requires review by OMB, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and the rule may be an economically significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov,, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's Web site at http://www1.va.gov/orpm/,, by following the link for “VA Regulations Published.”

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This interim final rule will have no such effect on State, local, and tribal governments, or on the private sector.

Paperwork Reduction Act

This interim final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, applies only to rules for which an agency is required to publish a notice of proposed rulemaking pursuant to 5 U.S.C. 553(b) or any other law. 5 U.S.C. 603(a). The RFA does not apply to this rulemaking because VA has found good cause to publish this rule without notice and comment pursuant to 5 U.S.C. 553(b).

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance number and title for the program affected by this document is 64.114, Veterans Housing—Guaranteed and Insured Loans.

Signing Authority

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Jose D. Riojas, Chief of Staff, Department of Veterans Affairs, approved this document on October 28, 2013, for publication.

List of Subjects in 38 CFR Part 36

• Condominiums
• Housing
• Individuals with disabilities
• Loan programs—housing and community development
• Loan programs—veterans
• Manufactured homes
• Mortgage insurance
• Reporting and recordkeeping requirements
• Veterans

For the reasons set forth in the preamble, VA is amending 38 CFR part 36 as follows:

PART 36—LOAN GUARANTY

1. The authority citation for part 36 continues to read as follows:

Authority: 38 U.S.C. 501 and as otherwise noted.

2. Amend § 36.4300 by:

a. Revising the section heading.

b. Adding a heading to paragraph (a).

c. Redesignating paragraph (b) as paragraph (e).

d. Adding new paragraphs (b) through (d).

e. Adding a heading to newly redesignated paragraph (e).

The revision and additions read as follows:

3. Amend § 36.4340 by:

a. Revising paragraph (a).

b. Redesignating paragraph (b) as paragraph (b)(1).

c. Adding a new paragraph (b)(2).

The revision and addition read as follows:

4. Amend § 36.4500 by:

a. Revising the section heading.

b. Adding a heading to paragraph (a).

c. Adding a heading to paragraph (b).

d. Redesignating paragraph (c) as paragraph (d).

e. Adding a new paragraph (c).

f. Adding a heading to newly redesignated paragraph (d).

The revision and additions read as follows:

5. In § 36.4501, add the term “Vendee loan” immediately after the definition of “Trust land” to read as follows: