II 112th CONGRESS 1st Session S. 1834 IN THE SENATE OF THE UNITED STATES November 9, 2011 Mr. Corker introduced the following bill; which was read twice and referred to the Committee on Banking, Housing, and Urban Affairs A BILL To restore and repair the United States mortgage markets by making them transparent, bringing in private capital, winding down the Government-sponsored enterprises, and for other purposes.

1.

Short title

This Act may be cited as the Residential Mortgage Market Privatization and Standardization Act of 2011.

2.

Definitions

For purposes of this Act, the following definitions shall apply: (1)

Covered mortgage loan

(A)

In general

The term covered mortgage loan means any residential mortgage loan, including any single-family and multifamily loan, that is originated, serviced, or subserviced, in whole or in part, owned directly or indirectly, including through any interest in a security that is backed in whole or in part by a mortgage loan, or securitized or resecuritized, by an entity or affiliate or subsidiary thereof that is regulated by any of the agencies listed in subparagraph (B). (B)

Agencies

The agencies listed in this subparagraph are— (i)the Board of Governors of the Federal Reserve System; (ii)the Department of Agriculture; (iii)the Department of Housing and Urban Development; (iv)the Federal Deposit Insurance Corporation; (v)the Federal Housing Finance Agency; (vi)the Farm Credit Administration; (vii)the Federal Trade Commission; (viii)the Office of the Comptroller of the Currency; (ix)the National Credit Union Administration; and (x)the Securities and Exchange Commission. (2)

Enterprises

The term enterprises means, individually and collectively, the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation. (3)

FHFA; Director

The terms FHFA and Director mean the Federal Housing Finance Agency and the Director thereof, respectively. (4)

Mortgage Data

(A)

In general

The Director shall define mortgage data, by regulation, consistent with this paragraph. (B)

Single-family loans

For single-family covered mortgage loans, the term mortgage data means, as of the date of origination— (i)the loan origination date and the loan maturity date; (ii)whether the loan is a purchase loan or a refinance, and for refinance loans— (I)the date on which the refinanced loan was originated; (II)the identity of the lender on the refinanced loan; and (III)the unpaid principal balance of the refinanced loan that was repaid by the new loan; (iii)the value of the collateral property on which the lender relied, and how the lender determined the value; (iv)the credit score or scores that the lender used or on which it relied, and the entity that supplied each; (v)debt-to-income ratios, including— (I)the ratio of the total debt of the borrower and coborrowers, expressed as a monthly payment amount, to the total current and expected future income of the borrower and any coborrowers on which the lender relied, expressed as a monthly income amount; and (II)the ratio of the first scheduled payment on the loan, expressed as a monthly payment amount, to the total current and expected future income of the borrower and any coborrowers on which the lender relied, expressed as a monthly income amount; (vi)the total value of borrower assets, but not including the value of the collateral and not including income, on which the lender relied; (vii)the principal amount of the loan; (viii)the interest rate on the loan; (ix)if the interest rate may adjust under the loan terms, the terms and limits of any permissible adjustment, including the index and margin, if applicable, when the rate may adjust, and any caps or floors on any such adjustment; (x)if the principal may increase under the loan terms at origination, the terms and limits of any permissible increase, including when the increase or increases may occur, how the amount and timing of any increase is determined, and any caps on any such increases; (xi)if the payment amount may adjust, independently of a rate adjustment or of an increase in the principal amount, the terms and limits of any permissible adjustment, including when the adjustment may occur, how the amount and timing of any adjustment is determined, and any caps or floors on any such adjustments; (xii)whether, under the loan terms, the borrower may be required to pay any prepayment penalty, and if so, the potential amount and timing of any such penalty; (xiii)any permissible grace periods and late fees under the loan terms, including fee amounts permitted on the loan; (xiv)whether the borrower or any coborrower has stated an intent to reside in the property as a principal residence; (xv)whether the loan is assumable under the loan terms at origination and if so, the conditions on which any assumption may be denied; (xvi)whether the originating lender was or is aware of any subordinate or senior lien on the property at the time at which the loan was originated, and if so, the identity of all lenders or other lienholders of such other loans, the relative lien position of each, and the date of origination of each lien if it secures a mortgage loan; (xvii)the type of mortgage insurance relating to the loan, including who pays it, and the amount and scheduled payment dates of any premiums; (xviii)whether flood insurance is required in connection with the loan, and if so, the amount and timing of premiums; (xix)whether the loan has an escrow account and if so, the amount of the initial deposit into the escrow account and the amount of the monthly payments scheduled to be deposited into the escrow account; (xx)the amount of points, fees, and settlement charges paid to originate the loan, including the amount of any compensation paid to a mortgage broker, and who paid it; (xxi)whether the borrower or borrowers have any payment assistance at origination, such as government or private subsidies or buydowns, and if so, the amounts, terms, and timing of such assistance; and (xxii)the address of the real property securing the mortgage loan. (C)

Multifamily loans

For multifamily covered mortgage loans, the term mortgage data means, as of the date of origination— (i)the number of dwelling units in each property securing each loan; (ii)the rent on each dwelling unit, or, if more than 1 has the same rent, the number of units at each rent level; (iii)the occupancy status of each dwelling unit; (iv)whether the rent is subsidized by any government agency and, if so, in what amounts, under what terms and conditions, and for what period of time; (v)whether the rent on the units is current, and if not, how many days or months the rent for each unit is delinquent; and (vi)all of the information described in subparagraph (B), except as modified by the Director, by regulation, consistent with this Act. (D)

After origination

For both single-family and multifamily covered mortgage loans, beginning the day after the date of origination of the loan, and reported not less frequently than monthly thereafter until the loan ceases to exist, the term mortgage data includes— (i)the amount and date of payments received each month, including— (I)whether each payment is received by the due date or within a grace period, and if a payment is received after the scheduled due date, how many days past due; (II)the amount of any payment deposited into an escrow account; (III)amounts paid for other loan charges, with an identification of the amount and type of such other charge; and (IV)the amount of any prepayments; (ii)for loans on which any payment or partial payment is overdue, the number of days since the loan was current; (iii)whether property taxes, hazard insurance premiums, and any flood insurance premiums required in connection with the loan are paid by the borrower or borrowers as required, and if any such item is not paid as required— (I)the number of days since the payment was required, and the amount of the missed payment; (II)whether the servicer or other party on behalf of the servicer paid property taxes on the property, and in what amount; and (III)whether the servicer or other party on behalf of the servicer force-placed hazard or flood insurance, and if so, the amount of the premium and the identity of the insurer; (iv)the amount of any interest paid to the borrower on any escrow; (v)the type and date of any actions taken by or on behalf of the servicer due to default, including nonpayment default, and the amount charged to the borrower or borrowers as a result of the action or actions; and (vi)if the servicer is aware of any damage to the property securing the loan, the type and extent of the damage and of any repairs, the amount of insurance proceeds paid, the amount of such proceeds disbursed or paid to the borrower, and the amount held by the servicer, and the date and results of any inspection done by or on behalf of the servicer. (E)

Adjustments consistent with the purposes of this Act

The Director may adjust the items that are included in or excluded from the definition of mortgage data consistent with this Act, as appropriate to protect the privacy of individual consumers. (F)

Privacy

The regulations required by subparagraph (A) may require rounding off of the debt to income ratios required to be included as mortgage data to protect the privacy of the borrower, taking into consideration the information that is already available on the Internet or in other ways.

3.

GSE winddown

(a)

Fannie Mae

Section 304 of the National Housing Act (12 U.S.C. 1719) is amended by adding at the end the following: (h)

Winddown of enterprises

(1)

Annual guarantee reductions

Not later than 180 days after the date of enactment of the Mortgage Market Privatization and Standardization Act of 2011, and annually thereafter, the Director shall begin reducing the percentage of the value of a trust certificate or other security that may be guaranteed by the corporation by not less than 10 percent per year. (2)

Structure

The percentage of the bond guaranteed by the corporation can be structured on either a pro-rata or senior-subordinated basis, as determined by the Director. The Director shall pursue a strategy that allows for market signals to assist Congress and the Director to monitor and assess the price that private market participants are assigning to mortgage credit risk. . (b)

Freddie Mac

Section 305 of the Federal Home Loan Mortgage Corporation Act (12 U.S.C. 1454) is amended by adding at the end the following: (d)

Winddown of enterprises

(1)

Annual guarantee reductions

Not later than 180 days after the date of enactment of the Mortgage Market Privatization and Standardization Act of 2011, and annually thereafter, the Director shall begin reducing the percentage of the value of a trust certificate or other security that may be guaranteed by the corporation by not less than 10 percent per year. (2)

Structure

The percentage of the bond guaranteed by the corporation can be structured on either a pro-rata or senior-subordinated basis, as determined by the Director. The Director shall pursue a strategy that allows for market signals to assist Congress and the Director to monitor and assess the price that private market participants are assigning to mortgage credit risk. .

4.

Residential mortgage market transparency

(a)

In general

Mortgage data relating to all covered mortgage loans shall be put into the public domain in accordance with this section. (b)

Agency action

Each agency named in section 2(1)(B) shall, not later than 1 year after the date of enactment of this Act, require, by regulation, that all entities regulated by such agency shall put mortgage data relating to covered mortgage loans into the public domain, in accordance with this Act and the regulations issued under this Act. Such regulations shall require that the data be reasonably accurate and complete. (c)

Manner and form of data

Not later than 1 year after the date of enactment of this Act, the Director shall, by regulation— (1)establish the manner and form by which all mortgage data required to be put into the public domain by this section shall be put into the public domain; and (2)require that such mortgage data be made available in a uniform manner, in a form designed for uniformity of data definitions and forms, ease and speed of access, ease and speed of downloading, and ease and speed of use. (d)

Update

All entities required to put mortgage data into the public domain under this Act shall continuously update the mortgage data, not less frequently than monthly, as long as the entities exist, whether in conservatorship, receivership, or otherwise. All updates shall be reasonably accurate and complete. (e)

Responsibility of regulated entities

The mortgage data required to be put into the public domain in accordance with this Act shall include all mortgage data related to all covered mortgage loans, to the extent practicable. (f)

Duplication of effort

If 2 or more entities are required by this Act to report the same mortgage data relating to the same mortgage loan, they may, by agreement, determine that only 1 of such entities will report the data. If 1 of such entities reports the required mortgage data, it shall not be a violation of this section for the other entities not to report the data. (g)

Date of access to data

The Director shall establish, and cause to be published in the Federal Register, the initial date on which— (1)the public shall begin to have access to any data put into the public domain in accordance with this Act; and (2)all mortgage data is required to be put into the public domain, in accordance with this Act. (h)

Costs to FHFA

The FHFA shall pay the cost of establishing the database of mortgage data that is put into the public domain under this section, and of providing public access to that database. If the FHFA ever ceases to exist without being replaced, and unless otherwise provided by Act of Congress, the cost of maintaining the database shall be borne by the remaining agencies named in section 2(1)(B), by agreement.

5.

Encouraging a market for high quality residential mortgage futures

(a)

In general

Subpart A of part 2 of subtitle A of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4541 et seq.) is amended by adding at the end the following:

1327.

Encouraging a market for high quality residential mortgage futures

(a)

Definitions

In this section, the following definitions shall apply: (1)

Deliverable residential mortgage

(A)

In general

The terms deliverable residential mortgage and DRM have the meaning given those terms by rule of the Director, in consultation with participants in the TBA market, taking into consideration underwriting and product features that historical loan performance data indicate result in a lower risk of default, such as— (i)documentation and verification of the financial resources relied upon to qualify the mortgagor; (ii)standards with respect to— (I)the residual income of the mortgagor after all monthly obligations; (II)the ratio of the housing payments of the mortgagor to the monthly income of the mortgagor; and (III)the ratio of total monthly installment payments of the mortgagor to the income of the mortgagor; (iii)mitigating the potential for payment shock on adjustable rate mortgages through product features and underwriting standards; (iv)mortgage guarantee insurance or other types of insurance or credit enhancement obtained at the time of origination, to the extent such insurance or credit enhancement reduces the risk of default; and (v)prohibiting or restricting the use of balloon payments, negative amortization, prepayment penalties, interest-only payments, and other features that have been demonstrated to exhibit a higher risk of borrower default. (B)

Limitation on definition

The Director, in defining the term deliverable residential mortgage, as required by subparagraph (B), shall define that term to be no broader than the definition of the term qualified mortgage, as provided under section 129C(c)(2) of the Truth in Lending Act and regulations adopted thereunder. (2)

Participant in the TBA market

The term participant in the TBA market means a private investor in or dealer of mortgage-backed securities, particularly mortgage-backed securities issued by the enterprises, that routinely enters into forward contracts for the sale of mortgage-backed securities that do not specify the particular mortgage-backed securities that will be delivered to the buyer. (3)

Program

The term program means the program established under subsection (b). (4)

DRM futures market

The term DRM futures market means a market for forward contracts for the sale of mortgage-backed securities collateralized exclusively by deliverable residential mortgages. (5)

TBA market

The term TBA market means the market for forward contracts for the sale of mortgage-backed securities that do not specify the particular mortgage-backed securities that will be delivered to the buyer. (b)

Program Established

The Director, in consultation with participants in the TBA market, shall establish a program to encourage the development of a DRM futures market that— (1)compliments the TBA market; (2)creates incentives for trading by participants in the TBA market; and (3)has the potential to replace the TBA market. (c)

Technology and infrastructure

The Director shall consult with participants in the TBA market to develop the technology and infrastructure necessary to carry out the program established under this section. (d)

Annual report

The Director shall submit to Congress an annual report on the program established under this section.

. (b)

Securities laws exemptions

(1)

Securities Act of 1933

Section 3(a) of the Securities Act of 1933 (15 U.S.C. 77c(a)) is amended by adding at the end the following: (14)Any mortgage-backed security collateralized exclusively by deliverable residential mortgages, as such term is defined under section 1327 of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992. . (2)

Securities Exchange Act of 1934

Section 3(a)(12)(A) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(12)(A)) is amended— (A)by redesignating clauses (vi) and (vii) as clauses (vii) and (viii), respectively; and (B)by inserting after clause (v) the following: (vi)any mortgage-backed security collateralized exclusively by deliverable residential mortgages, as such term is defined under section 1327 of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992; .

6.

Monetization of business value

Pursuant to the authority of the Director as conservator of the enterprises under section 1367 of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4617), the Director shall— (1)identify any property of the enterprises that would be of value to nongovernmental entities, including— (A)historical databases containing information on prepayment, delinquency, and default rates; (B)proprietary home price indices; (C)technology used in the securitization of mortgages; and (D)patents relating to the securitization of mortgages, automated underwriting systems, and other processes; and (2)sell any property identified under paragraph (1) to nongovernmental entities.

7.

Uniform underwriting standards

(a)

Standards Established

Notwithstanding any other provision of this Act or any other provision of Federal, State, or local law, the Federal banking agencies (as that term is defined in section 3 of the Federal Deposit Insurance Act (12 U.S.C. 1813)), in consultation with the FHFA and the Secretary of Housing and Urban Development, shall jointly establish specific minimum standards for mortgage underwriting, including— (1)a requirement that the mortgagee verify and document the income and assets relied upon to qualify the mortgagor on the residential mortgage, including the previous employment and credit history of the mortgagor; and (2)a down payment requirement that— (A)is equal to not less than 5 percent of the purchase price of the property securing the residential mortgage; (B)in the case of a first lien residential mortgage loan with an initial loan to value ratio that is more than 80 percent and not more than 95 percent, includes a requirement for credit enhancements, as defined by the Federal banking agencies, until the loan to value ratio of the residential mortgage loan amortizes to a value that is less than 80 percent of the purchase price; (C)uses a method for determining the ability of the mortgagor to repay the residential mortgage that is based on factors including— (i)all terms of the residential mortgage, including principal payments that fully amortize the balance of the residential mortgage over the term of the residential mortgage; and (ii)the debt to income ratio of the mortgagor; and (D)any other specific standards that the Federal banking agencies jointly determine are appropriate to ensure prudent underwriting of residential mortgages. (b)

Updates to Standards

The Federal banking agencies, in consultation with the FHFA and the Secretary of Housing and Urban Development— (1)shall review the standards established under this section not less frequently than every 5 years; and (2)based on the review under paragraph (1), may revise the standards established under this section, as the Federal banking agencies, in consultation with the FHFA and the Secretary of Housing and Urban Development, determine to be necessary. (c)

Compliance

It shall be a violation of Federal law— (1)for any mortgage loan originator to fail to comply with the minimum standards for mortgage underwriting established under subsection (a) in originating a residential mortgage loan; (2)for any company to maintain an extension of credit on a revolving basis to any person to fund a residential mortgage loan, unless the company reasonably determines that the residential mortgage loan funded by such credit was subject to underwriting standards no less stringent than the minimum standards for mortgage underwriting established under subsection (a); or (3)for any company to purchase, fund by assignment, or guarantee a residential mortgage loan, unless the company reasonably determines that the residential mortgage loan was subject to underwriting standards no less stringent than the minimum standards for mortgage underwriting established under subsection (a). (d)

Implementation

(1)

Regulations required

The Federal banking agencies, in consultation with the FHFA, shall issue regulations to implement subsections (a) and (c), which shall take effect not later than 270 days after the date of enactment of this Act. (2)

Report required

If the Federal banking agencies have not issued final regulations under subsections (a) and (c) before the date that is 270 days after the date of enactment of this Act, the Federal banking agencies shall jointly submit to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Financial Services of the House of Representatives a report that— (A)explains why final regulations have not been issued under subsections (a) and (c); and (B)provides a timeline for the issuance of final regulations under subsections (a) and (c). (e)

Enforcement

Compliance with the rules issued under this section shall be enforced by— (1)the primary financial regulatory agency as that term is defined under section 2 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (12 U.S.C. 5301) of an entity, with respect to an entity subject to the jurisdiction of a primary financial regulatory agency, in accordance with the statutes governing the jurisdiction of the primary financial regulatory agency over the entity, and as if the action of the primary financial regulatory agency were taken under such statutes; and (2)the Bureau of Consumer Financial Protection, with respect to a company that is not subject to the jurisdiction of a primary financial regulatory agency. (f)

Exemptions for certain nonprofit mortgage loan originators

(1)

In general

Not later than 180 days after the date of enactment of this Act, the Federal banking agencies, in consultation with the Secretary of Housing and Urban Development and the Secretary of the Treasury, may jointly issue rules to exempt from the requirements under subsection (a)(2), mortgage loan originators that are exempt from taxation under section 501(c)(3) of the Internal Revenue Code of 1986. (2)

Determining factors

The Federal banking agencies shall ensure that— (A)the lending activities of a mortgage loan originator that receives an exemption under this subsection do not threaten the safety and soundness of the banking system of the United States; and (B)a mortgage loan originator that receives an exemption under this subsection— (i)is not compensated based on the number or value of residential mortgage loan applications accepted, offered, or negotiated by the mortgage loan originator; (ii)does not offer residential mortgage loans that have an interest rate greater than zero percent; (iii)does not gain a monetary profit from any residential mortgage product or service provided; (iv)has the primary purpose of serving low income housing needs; (v)has not been specifically prohibited, by statute, from receiving Federal funding; and (vi)meets any other requirements that the Federal banking agencies jointly determine are appropriate for ensuring that a mortgage loan originator that receives an exemption under this subsection does not threaten the safety and soundness of the banking system of the United States. (3)

Reports required

Before the issuance of final rules under subsection (a), and annually thereafter, the Federal banking agencies shall jointly submit to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Financial Services of the House of Representatives a report that— (A)identifies the mortgage loan originators that receive an exemption under this subsection; and (B)for each mortgage loan originator identified under subparagraph (A), explains the rationale for providing an exemption. (4)

Updates to exemptions

The Federal banking agencies, in consultation with the Secretary of Housing and Urban Development and the Secretary of the Treasury— (A)shall review the exemptions established under this subsection, not less frequently than every 2 years; and (B)based on the review under subparagraph (A), may revise the standards established under this subsection, as the Federal banking agencies, in consultation with the Secretary of Housing and Urban Development and the Secretary of the Treasury, determine to be necessary. (g)

Rules of Construction

Nothing in this section may be construed to permit— (1)the enterprises to make or guarantee a residential mortgage loan that does not meet the minimum underwriting standards established under this section; or (2)the Federal banking agencies to issue an exemption under subsection (f) that is not on a case-by-case basis. (h)

Definitions

In this section, the following definitions shall apply: (1)

Company

The term company— (A)has the same meaning as in section 2(b) of the Bank Holding Company Act of 1956 (12 U.S.C. 1841(b)); and (B)includes a sole proprietorship. (2)

Mortgage loan originator

The term mortgage loan originator means any company that takes residential mortgage loan applications and offers or negotiates terms of residential mortgage loans. (3)

Residential mortgage loan

The term residential mortgage loan— (A)means any extension of credit primarily for personal, family, or household use that is secured by a mortgage, deed of trust, or other equivalent security interest in a dwelling or residential real estate upon which is constructed or intended to be constructed a dwelling; and (B)does not include a mortgage loan for which mortgage insurance is provided by the Department of Veterans Affairs or the Rural Housing Administration. (4)

Extension of credit; dwelling

The terms extension of credit and dwelling have the same meanings as in section 103 of the Truth in Lending Act (15 U.S.C. 1602). (i)

Repeal of credit risk retention and QRM rules

Section 15G of the Securities Exchange Act of 1934 (15 U.S.C. 78o–11) is repealed, and any rule or regulation promulgated under that section shall have no force or effect, effective on the date of enactment of this Act.

8.

Residential mortgage servicing standards

(a)

Uniform PSA

(1)

Development

(A)

In general

The Director, in consultation with the Secretary of the Treasury and the Board of Governors of the Federal Reserve System, shall, not later than 1 year after the date of enactment of this Act, develop a uniform pooling and servicing agreement (in this section referred to as a uniform PSA). The Director shall work with industry groups, including servicers, originators, and mortgage investors to develop the uniform PSA. (B)

Criteria

The uniform PSA shall— (i)address all issues relating to the pool trustee, and shall be based on pooling and servicing agreements in use by the enterprises on the date of enactment of this Act; and (ii)create uniform loss mitigation standards, including standards for a single point of contact for troubled borrowers, an industry wide net-present-value model for determining when to conduct a loan modification rather than foreclosure, and national standards for the foreclosure process. (2)

Effect of uniform PSA

Beginning 1 year after the date of enactment of this Act, all mortgage backed securities issued by national or State chartered banks in the United States will be affected in accordance with the uniform PSA. (b)

MERS2

The Director shall establish, by rule, a Mortgage Electronic Registration System (in this section referred to as MERS2) based on the Mortgage Electronic Registration System in use on the date of enactment of this Act. MERS2 shall incorporate a single national database for all mortgage title transfers, to be maintained and operated by FHFA. The rules of the Director shall ensure that property title is transferred in accordance with all applicable provisions of law. All mortgage transfers shall take place according to national standards and shall be recorded in the MERS2 system. (c)

Uniform regulatory practices

The Comptroller of the Currency, Chairperson of the Federal Deposit Insurance Corporation, Director, Chairman of the Board of Governors of the Federal Reserve System, and Director of the Bureau of Consumer Financial Protection shall, jointly, under the direction of the Director, develop uniform regulatory practices for the mortgage market.