Have CFPB Rules Stifled Mortgage Credit? The Answer's Complicated

WASHINGTON — The Consumer Financial Protection Bureau's rules to improve mortgage underwriting took effect last year amid dire industry predictions that they would choke off the trickle of credit in an already crippled market.

But so far, at least, the Apocalypse hasn't arrived.

Although the CFPB's "qualified mortgage" and ability-to-repay rules remain one of the most contentious rulemakings since the Dodd-Frank Act was enacted five years ago, credit availability appears to be gradually widening since they were implemented, according to multiple different studies.

"We didn't expect the ability-to-repay/Qualified Mortgage rule to have a large, immediate impact on the market. And nothing we've seen would suggest that there has been a large impact in terms of access to credit and people being able to do the kind of lending they were doing before," said David Silberman, the CFPB's associate director for research, markets and regulation, in an interview. "If anything, there's been a gradual loosening of credit, but at very slow pace."

That is not to say that both rules have worked perfectly — or that either is a done-deal as currently written. It's also true that one of the biggest reasons why the rules have not visibly affected credit availability is because of a temporary "patch" that allows any loan purchased by the government-sponsored enterprises to automatically qualify as QM.

The rules were also implemented after lenders had already significantly tightened underwriting standards, which makes it difficult to track their exact impact.

"I'd argue the effect of QM has been very, very muted when first, the market has taken into account a lot of changes before the rule. And secondly, you've got the agency patch," said Laurie Goodman, Center Director of the housing finance policy center for the Urban Institute.

The most recent housing report from the Urban Institute calls the projections for mortgage originations in 2015 "mixed" with the Mortgage Bankers Association projecting "a modest increase over 2014 of $81 billion to $1.2 trillion, Fannie sees a small increase of $14 billion, and Freddie expects no change."

Economist are still struggling to figure out the "new normal" for the mortgage market, which is still seeing new regulations added in the midst of record low interest rates and shifting borrower demands.

"It was like a 100-year flood that we just went through and that colors some of the thinking. We are now in a period where the mortgage market is developing a new base of experience in order to set policy going forward," said Paul Leonard, director of the California office for the Center for Responsible Lending. "As we go forward, we will see to what extent the patch is used ... the world looks quite different than it did."

At least theoretically, the patch's days of helping GSE loans qualify as QM are numbered. The CFPB said the exemption would last for seven years, one of which has now passed, or until GSE reform is enacted. As GSE reform appears increasingly unlikely to happen anytime soon, however, many observers expect the CFPB will ultimately extend the patch.

The CFPB "can always make that patch permanent rather than having it revert back," said Kevin Fears, senior economist at the National Association of Realtors. If nothing is done by Congress or the CFPB, "it would have significant effect on 14% to 18% of loan production if the timeline sunsets."

Another difficulty in assessing the impact of the new rules is specifically how QM's 3% cap on points and fees is affecting credit availability. Lenders continue to argue that the cap is too restrictive, and some lawmakers have proposed bills to broaden its calculation even while the CFPB makes tweaks to it.

While there are many reports on mortgages, such as the Home Mortgage Disclosure Act which the CFPB has proposed expanding — there is very little specifically tracking points and fees. That's one of the reasons why the CFPB is working on building a national mortgage database with the Federal Housing Finance Agency, Silberman said.

"One of the things that is hardest to get, quite frankly, is data on points and fees, since it is not reported in HMDA. That's an issue where it's particularly difficult to get a sense of what's going on," Silberman said. "We've been talking to lenders about voluntary submission ... to help us get a better sense of what's happening and how the points and fees caps are affecting the market, if at all."

Another area that the CFPB is closely watching is how the safe harbor protection on QM loans plays out for lenders. The industry continues to pressure the agency to broaden safe harbor protection to more of the non-QM market but that argument is difficult to make because mortgages written after the rule have not defaulted to the point of being tried in court.

"There's still the speed bump on QM versus non-QM because we do not really know the difference in liability until we go through another significant cycle where we have an increase in delinquencies and defaults, and see what happens with potential claims," said Bob Davis, executive vice president of mortgage markets at the American Bankers Association. "Right now it's an unknown business cost."

In the last year, the CFPB has made several amendments to its mortgage rule including trying to clarify what counts as points and fees cap; offering lenders a way to "cure" a loan mistakenly ended up not being a QM; and more recently, broadening the terms for small and rural banks.

Industry proponents said the amendments thus far have helped lenders and the mortgage market. They said they largely expected the stable mortgage numbers, but have been impressed with the CFPB's repeated adjustments to the rule.

"Yes, it does surprise me," Leonard said. "The CFPB has been very attuned and responsive in a data-driven sort of way, to make changes where they haven't gotten the rules right in the first place."

One area the CFPB is closely watching is small-dollar mortgages, typically under $100,000, that fall outside the QM space.

"There are concerns expressed around smaller-sized mortgages," Silberman said. "We don't have any evidence that suggests that there's a problem ... but it's something that we were quite mindful of during the rulemaking and that we will keep a careful eye on."

Lenders, meanwhile, note that even if the mortgage numbers are stable, they don't show the cost that lenders have endured as they change systems and train staff to come into compliance with the rule.

"Compliance costs have gone up exponentially and there's not a day that goes by that we're always wondering whether an audit will come in," said Joe Nunziata, chairman at Florida-based FBC Mortgage. "I see that as a good thing because if you run a clean shop, you can manage that."

Nunziata may be one of the more upbeat mortgage lenders about the new regulatory regime. But it's worth noting that, at least for now, none of the most pessimistic predictions about QM and ability-to-pay appear to have come true.

"Any time a rule is first put out, there's always going to be groups that yell and scream. When QM was first being discussed, there was no real definition as to what QM was and what would happen if lenders" fell outside that definition, Nunziata said. "But once the rule was set out and clarified, the companies that conformed to it will do fine."

Nunziata said most applicants meet QM status, with about 38% being first-time homebuyers. Nearly 16% of their GSE-sponsored loans would fall out of their automated QM system without the patch being in place, he said.

And while there appeared to be some credit tightening in the months following implementation of QM, it seems some lenders have gradually become more comfortable with underwriting mortgages under the new framework. Still, some have reported problems as a result.

The National Association of Realtors began surveying mortgage underwriters on the QM rule last year and found that roughly 47% of the respondents said they were unable to close a mortgage during the first quarter of 2014 because of the QM rule. That number grew to 64% of respondents who said they could not close a mortgage in the third quarter, according to the latest report available.

"There's a small number of people who aren't getting houses because you just can't document the repayment proof. You just can't get there no matter how hard you work the loan," said Robert Messer, executive vice president and chief financial officer of the $2.5 billion-asset American National Bank of Texas based in Terrell.

Lenders are saying roughly 5% to 10% of the applicants aren't making the QM status, largely because of documentation problems, Messer said. And documenting requirements under the new mortgage rule is the biggest cost right now for lenders, though Messer said it has not yet trickled down to consumers.

"All of the banks are looking at your fees right now and it may not make it to the mortgage but the increased costs may go somewhere else because the only people who pay the bank in order to survive are the consumers," Messer said. "They pay all the bills at the bank."

There are many other impediments at play in the housing and mortgage market that make it difficult to define the exact impact of the QM rule. The refinance boom dropped off last year around the same time lenders were adjusting to the QM rule, which made the rate of growth in origination slower when compared to the pace of 2013.

Silberman and lenders noted that there is also the increasing fear of "putback risk," when a lender would have to take back a bad loan after selling it. The housing market is also still overcoming weak demand from consumers still recovering economically as well as delays in household formation, which slows down loan volumes.

Another long-standing issue is the lack of a private-secondary market, known as the Residential Mortgage-Backed Security market, which is affecting private buyers for non-QM loans.

"The non-QM market has also been slow to develop, and that's been driven by two factors. The first is that non-banks are constrained by the more generalized skepticism of private-label RMBS investors," said Raj Date, who started the advisory firm Fenway Summer in 2013 after leaving the CFPB following the release of the QM rule. "Even if the regulatory framework is now clear, there's not much private market consensus on what investors can expect from trustees, for example. And there's not much agreement on servicer incentives and obligations to investors in an adverse credit environment. These are mostly private market norms that have yet to be fully sorted out — and sorting them out is kind of hard when the various private parties involved are still actively suing each other over crisis-era losses."

The second factor Date noted was that it's very difficult for traditional lenders to convert their legacy systems into underwriting non-QM loans, which is partly why he launched a company that built a non-QM system without pre-existing loans. Many board members at traditional banks also seem less inclined to push their underwriters to write more non-QM loans.

"It's kind of hard to find a bank board of directors that is, with the memory of the mortgage debacle still so fresh, willing to say to its mortgage credit team, 'Hey, you mortgage guys are awesome. We'd really like for you to take more risk on the balance sheet,'" Date said. "That just isn't happening in bank-land."

Lenders' angst about writing non-QM loans also brings up a sense of frustration at the CFPB.

"The fact that they are not a QM loan shouldn't affect whether they make it or not," Silberman said. "We try to be very clear in saying that a non-QM loan is not necessarily a bad or risky loan. It simply means that you've made an individualized judgment rather than rely on a cut-and-dried rule to determine whether this loan meets the requirements."