[Title 24 CFR 3500.17]
[Code of Federal Regulations (annual edition) - May 1, 2001 Edition]
[Title 24 - HOUSING AND URBAN DEVELOPMENT]
[Subtitle B - Regulations Relating to Housing and Urban Development]
[Chapter Xx - OFFICE OF ASSISTANT SECRETARY FOR HOUSING--FEDERAL HOUSING]
[Part 3500 - REAL ESTATE SETTLEMENT PROCEDURES ACT]
[Sec. 3500.17 - Escrow accounts.]
[From the U.S. Government Printing Office]


24HOUSING AND URBAN DEVELOPMENT52001-05-012001-05-01false3500.17Sec. 3500.17HOUSING AND URBAN DEVELOPMENTRegulations Relating to Housing and Urban DevelopmentOFFICE OF ASSISTANT SECRETARY FOR HOUSING--FEDERAL HOUSINGREAL ESTATE SETTLEMENT PROCEDURES ACT
Sec. 3500.17  Escrow accounts.

    (a) General. This section sets out the requirements for an escrow 
account that a lender establishes in connection with a federally related 
mortgage loan. It sets limits for escrow accounts using calculations 
based on monthly payments and disbursements within a calendar year. If 
an escrow account involves biweekly or any other payment period, the 
requirements in this section shall be modified accordingly. A HUD Public 
Guidance Document entitled ``Biweekly Payments--Example'' provides 
examples of biweekly accounting and a HUD Public Guidance Document 
entitled ``Annual Escrow Account Disclosure Statement--Example'' 
provides examples of a 3-year accounting cycle that may be used in 
accordance with paragraph (c)(9) of this section. A HUD Public Guidance 
Document entitled ``Consumer Disclosure for Voluntary Escrow Account 
Payments'' provides a model disclosure format that originators and 
servicers are encouraged, but not required, to provide to consumers when 
the originator or servicer anticipates a substantial increase in 
disbursements from the escrow account after the first year of the loan. 
The disclosures in that model format may be combined with or included in 
the Initial Escrow Account Statement required in Sec. 3500.17(g).
    (b) Definitions. As used in this section:
    Acceptable accounting method means an accounting method that a 
servicer uses to conduct an escrow account analysis for an escrow 
account subject to the provisions of Sec. 3500.17(c).

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    Aggregate (or) composite analysis, hereafter called aggregate 
analysis, means an accounting method a servicer uses in conducting an 
escrow account analysis by computing the sufficiency of escrow account 
funds by analyzing the account as a whole. Appendix E to this part sets 
forth examples of aggregate escrow account analyses.
    Annual escrow account statement means a statement containing all of 
the information set forth in Sec. 3500.17(i). As noted in 
Sec. 3500.17(i), a servicer shall submit an annual escrow account 
statement to the borrower within 30 calendar days of the end of the 
escrow account computation year, after conducting an escrow account 
analysis.
    Conversion date means the date three years after the publication 
date of the rule adding this section (i.e., October 27, 1997) by which 
date all servicers shall use aggregate analysis.
    Cushion or reserve (hereafter cushion) means funds that a servicer 
may require a borrower to pay into an escrow account to cover 
unanticipated disbursements or disbursements made before the borrower's 
payments are available in the account, as limited by Sec. 3500.17(c).
    Deficiency is the amount of a negative balance in an escrow account. 
As noted in Sec. 3500.17(f), if a servicer advances funds for a 
borrower, then the servicer must perform an escrow account analysis 
before seeking repayment of the deficiency.
    Delivery means the placing of a document in the United States mail, 
first-class postage paid, addressed to the last known address of the 
recipient. Hand delivery also constitutes delivery.
    Disbursement date means the date on which the servicer actually pays 
an escrow item from the escrow account.
    Escrow account means any account that a servicer establishes or 
controls on behalf of a borrower to pay taxes, insurance premiums 
(including flood insurance), or other charges with respect to a 
federally related mortgage loan, including charges that the borrower and 
servicer have voluntarily agreed that the servicer should collect and 
pay. The definition encompasses any account established for this 
purpose, including a ``trust account'', ``reserve account'', ``impound 
account'', or other term in different localities. An ``escrow account'' 
includes any arrangement where the servicer adds a portion of the 
borrower's payments to principal and subsequently deducts from principal 
the disbursements for escrow account items. For purposes of this 
section, the term ``escrow account'' excludes any account that is under 
the borrower's total control.
    Escrow account analysis means the accounting that a servicer 
conducts in the form of a trial running balance for an escrow account 
to:
    (1) Determine the appropriate target balances;
    (2) Compute the borrower's monthly payments for the next escrow 
account computation year and any deposits needed to establish or 
maintain the account; and
    (3) Determine whether shortages, surpluses or deficiencies exist.
    Escrow account computation year is a 12-month period that a servicer 
establishes for the escrow account beginning with the borrower's initial 
payment date. The term includes each 12-month period thereafter, unless 
a servicer chooses to issue a short year statement under the conditions 
stated in Sec. 3500.17(i)(4).
    Escrow account item or separate item means any separate expenditure 
category, such as ``taxes'' or ``insurance'', for which funds are 
collected in the escrow account for disbursement. An escrow account item 
with installment payments, such as local property taxes, remains one 
escrow account item regardless of multiple disbursement dates to the tax 
authority.
    Initial escrow account statement means the first disclosure 
statement that the servicer delivers to the borrower concerning the 
borrower's escrow account. The initial escrow account statement shall 
meet the requirements of Sec. 3500.17(g) and be in substantially the 
format set forth in Sec. 3500.17(h).
    Installment payment means one of two or more payments payable on an 
escrow account item during an escrow account computation year. An 
example of an installment payment is where a jurisdiction bills 
quarterly for taxes.
    Payment due date means the date each month when the borrower's

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monthly payment to an escrow account is due to the servicer. The initial 
payment date is the borrower's first payment due date to an escrow 
account.
    Penalty means a late charge imposed by the payee for paying after 
the disbursement is due. It does not include any additional charge or 
fee imposed by the payee associated with choosing installment payments 
as opposed to annual payments or for choosing one installment plan over 
another.
    Phase-in period means the period beginning on May 24, 1995, and 
ending on the conversion date, i.e., October 27, 1997, by which date all 
servicers shall use the aggregate accounting method in conducting escrow 
account analyses.
    Post-rule account means an escrow account established in connection 
with a federally related mortgage loan whose settlement date is on or 
after May 24, 1995.
    Pre-accrual is a practice some servicers use to require borrowers to 
deposit funds, needed for disbursement and maintenance of a cushion, in 
the escrow account some period before the disbursement date. Pre-accrual 
is subject to the limitations of Sec. 3500.17(c).
    Pre-rule account is an escrow account established in connection with 
a federally related mortgage loan whose settlement date is before May 
24, 1995.
    Shortage means an amount by which a current escrow account balance 
falls short of the target balance at the time of escrow analysis.
    Single-item analysis means an accounting method servicers use in 
conducting an escrow account analysis by computing the sufficiency of 
escrow account funds by considering each escrow item separately. 
Appendix E to this part sets forth examples of single-item analysis.
    Submission (of an escrow account statement) means the delivery of 
the statement.
    Surplus means an amount by which the current escrow account balance 
exceeds the target balance for the account.
    System of recordkeeping means the servicer's method of keeping 
information that reflects the facts relating to that servicer's handling 
of the borrower's escrow account, including, but not limited to, the 
payment of amounts from the escrow account and the submission of initial 
and annual escrow account statements to borrowers.
    Target balance means the estimated month end balance in an escrow 
account that is just sufficient to cover the remaining disbursements 
from the escrow account in the escrow account computation year, taking 
into account the remaining scheduled periodic payments, and a cushion, 
if any.
    Trial running balance means the accounting process that derives the 
target balances over the course of an escrow account computation year. 
Section 3500.17(d) provides a description of the steps involved in 
performing a trial running balance.
    (c) Limits on payments to escrow accounts; acceptable accounting 
methods to determine limits. (1) A lender or servicer (hereafter 
servicer) shall not require a borrower to deposit into any escrow 
account, created in connection with a federally related mortgage loan, 
more than the following amounts:
    (i) Charges at settlement or upon creation of an escrow account. At 
the time a servicer creates an escrow account for a borrower, the 
servicer may charge the borrower an amount sufficient to pay the charges 
respecting the mortgaged property, such as taxes and insurance, which 
are attributable to the period from the date such payment(s) were last 
paid until the initial payment date. The ``amount sufficient to pay'' is 
computed so that the lowest month end target balance projected for the 
escrow account computation year is zero (-0-) (see Step 2 in appendix E 
to this part). In addition, the servicer may charge the borrower a 
cushion that shall be no greater than one-sixth (\1/6\) of the estimated 
total annual payments from the escrow account.
    (ii) Charges during the life of the escrow account. Throughout the 
life of an escrow account, the servicer may charge the borrower a 
monthly sum equal to one-twelfth (\1/12\) of the total annual escrow 
payments which the servicer reasonably anticipates paying from the 
account. In addition, the servicer may add an amount to maintain a 
cushion no greater than one-sixth (\1/6\) of the estimated total annual 
payments from the account. However,

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if a servicer determines through an escrow account analysis that there 
is a shortage or deficiency, the servicer may require the borrower to 
pay additional deposits to make up the shortage or eliminate the 
deficiency, subject to the limitations set forth in Sec. 3500.17(f).
    (2) Escrow analysis at creation of escrow account. Before 
establishing an escrow account, the servicer must conduct an escrow 
account analysis to determine the amount the borrower must deposit into 
the escrow account (subject to the limitations of paragraph (c)(1)(i) of 
this section), and the amount of the borrower's periodic payments into 
the escrow account (subject to the limitations of paragraph (c)(1)(ii) 
of this section). In conducting the escrow account analysis, the 
servicer must estimate the disbursement amounts according to paragraph 
(c)(7) of this section. Pursuant to paragraph (k) of this section, the 
servicer must use a date on or before the deadline to avoid a penalty as 
the disbursement date for the escrow item and comply with any other 
requirements of paragraph (k) of this section. Upon completing the 
initial escrow account analysis, the servicer must prepare and deliver 
an initial escrow account statement to the borrower, as set forth in 
paragraph (g) of this section. The servicer must use the escrow account 
analysis to determine whether a surplus, shortage, or deficiency exists 
and must make any adjustments to the account pursuant to paragraph (f) 
of this section.
    (3) Subsequent escrow account analyses. For each escrow account, the 
servicer must conduct an escrow account analysis at the completion of 
the escrow account computation year to determine the borrower's monthly 
escrow account payments for the next computation year, subject to the 
limitations of paragraph (c)(1)(ii) of this section. In conducting the 
escrow account analysis, the servicer must estimate the disbursement 
amounts according to paragraph (c)(7) of this section. Pursuant to 
paragraph (k) of this section, the servicer must use a date on or before 
the deadline to avoid a penalty as the disbursement date for the escrow 
item and comply with any other requirements of paragraph (k) of this 
section. The servicer must use the escrow account analysis to determine 
whether a surplus, shortage, or deficiency exists, and must make any 
adjustments to the account pursuant to paragraph (f) of this section. 
Upon completing an escrow account analysis, the servicer must prepare 
and submit an annual escrow account statement to the borrower, as set 
forth in paragraph (i) of this section.
    (4) Acceptable accounting methods to determine escrow limits. The 
following are acceptable accounting methods that servicers may use in 
conducting an escrow account analysis.
    (i) Pre-rule accounts. For pre-rule accounts, servicers may use 
either single-item analysis or aggregate-analysis during the phase-in 
period. In conducting the escrow account analysis, servicers shall use 
``month-end'' accounting. Under month-end accounting, the timing of the 
disbursements and payments within the month is irrelevant. As of the 
conversion date, all pre-rule accounts shall comply with the 
requirements for post-rule accounts in paragraph (c)(4)(ii) of this 
section. During the phase-in period, the transfer of servicing of a pre-
rule account to another servicer does not convert the account to a post-
rule account. After May 24, 1995, refinancing transactions (as defined 
in Sec. 3500.2) shall comply with the requirements for post-rule 
accounts.
    (ii) Post-rule accounts. For post-rule accounts, servicers shall use 
aggregate accounting to conduct an escrow account analysis. In 
conducting the escrow account analysis, servicers shall use ``month-
end'' accounting. Under month-end accounting, the timing of the 
disbursements and payments within the month is irrelevant.
    (5) Cushion. For post-rule accounts, the cushion shall be no greater 
than one-sixth (\1/6\) of the estimated total annual disbursements from 
the escrow account using aggregate analysis accounting. For pre-rule 
accounts, the cushion may not exceed the total of one-sixth of the 
estimated annual disbursements for each escrow account item using 
single-item analysis accounting. In determining the cushion using 
single-item analysis, a servicer

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shall not divide an escrow account item into sub-accounts, even if the 
payee requires installment payments.
    (6) Restrictions on pre-accrual. For pre-rule accounts, a servicer 
shall not require any pre-accrual that results in the escrow account 
balance exceeding the limits of paragraph (c)(1) of this section. In 
addition, if the mortgage documents in a pre-rule account are silent 
about the amount of pre-accrual, the servicer shall not require in 
excess of one month of pre-accrual, subject to the additional 
limitations provided in paragraph (c)(8) of this section. For post-rule 
accounts, a servicer shall not practice pre-accrual.
    (7) Servicer estimates of disbursement amounts. To conduct an escrow 
account analysis, the servicer shall estimate the amount of escrow 
account items to be disbursed. If the servicer knows the charge for an 
escrow item in the next computation year, then the servicer shall use 
that amount in estimating disbursement amounts. If the charge is unknown 
to the servicer, the servicer may base the estimate on the preceding 
year's charge, or the preceding year's charge as modified by an amount 
not exceeding the most recent year's change in the national Consumer 
Price Index for all urban consumers (CPI, all items). In cases of 
unassessed new construction, the servicer may base an estimate on the 
assessment of comparable residential property in the market area.
    (8) Provisions in mortgage documents. The servicer shall examine the 
mortgage loan documents to determine the applicable cushion and 
limitations on pre-accrual for each escrow account. If the mortgage loan 
documents provide for lower cushion limits or less pre-accrual than this 
section, then the terms of the loan documents apply. Where the terms of 
any mortgage loan document allow greater payments to an escrow account 
than allowed by this section, then this section controls the applicable 
limits. Where the mortgage loan documents do not specifically establish 
an escrow account, whether a servicer may establish an escrow account 
for the loan is a matter for determination by State law. If the mortgage 
loan document is silent on the escrow account limits (for cushion or 
pre-accrual) and a servicer establishes an escrow account under State 
law, then the limitations of this section apply unless State law 
provides for a lower amount. If the loan documents provide for escrow 
accounts up to the RESPA limits, then the servicer may require the 
maximum amounts consistent with this section, unless an applicable State 
law sets a lesser amount.
    (9) Assessments for periods longer than one year. Some escrow 
account items may be billed for periods longer than one year. For 
example, servicers may need to collect flood insurance or water 
purification escrow funds for payment every three years. In such cases, 
the servicer shall estimate the borrower's payments for a full cycle of 
disbursements. For a flood insurance premium payable every 3 years, the 
servicer shall collect the payments reflecting 36 equal monthly amounts. 
For two out of the three years, however, the account balance may not 
reach its low monthly balance because the low point will be on a three-
year cycle, as compared to an annual one. The annual escrow account 
statement shall explain this situation (see example in the HUD Public 
Guidance Document entitled ``Annual Escrow Account Disclosure 
Statement--Example'', available in accordance with Sec. 3500.3).
    (d) Methods of escrow account analysis. Paragraph (c) of this 
section prescribes acceptable accounting methods. The following sets 
forth the steps servicers shall use to determine whether their use of an 
acceptable accounting method conforms with the limitations in 
Sec. 3500.17(c)(1). The steps set forth in this section derive maximum 
limits. Servicers may use accounting procedures that result in lower 
target balances. In particular, servicers may use a cushion less than 
the permissible cushion or no cushion at all. This section does not 
require the use of a cushion.
    (1) Aggregate analysis. (i) When a servicer uses aggregate analysis 
in conducting the escrow account analysis, the target balances may not 
exceed the balances computed according to the following arithmetic 
operations:
    (A) The servicer first projects a trial balance for the account as a 
whole over

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the next computation year (a trial running balance). In doing so the 
servicer assumes that it will make estimated disbursements on or before 
the earlier of the deadline to take advantage of discounts, if 
available, or the deadline to avoid a penalty. The servicer does not use 
pre-accrual on these disbursement dates. The servicer also assumes that 
the borrower will make monthly payments equal to one-twelfth of the 
estimated total annual escrow account disbursements.
    (B) The servicer then examines the monthly trial balances and adds 
to the first monthly balance an amount just sufficient to bring the 
lowest monthly trial balance to zero, and adjusts all other monthly 
balances accordingly.
    (C) The servicer then adds to the monthly balances the permissible 
cushion. The cushion is two months of the borrower's escrow payments to 
the servicer or a lesser amount specified by State law or the mortgage 
document (net of any increases or decreases because of prior year 
shortages or surpluses, respectively).
    (ii) Lowest monthly balance. Under aggregate analysis, the lowest 
monthly target balance for the account shall be less than or equal to 
one-sixth of the estimated total annual escrow account disbursements or 
a lesser amount specified by State law or the mortgage document. The 
target balances that the servicer derives using these steps yield the 
maximum limit for the escrow account. Appendix E to this part 
illustrates these steps.
    (2) Single-item or other non-aggregate analysis method. (i) When a 
servicer uses single-item analysis or any hybrid accounting method in 
conducting an escrow account analysis during the phase-in period, the 
target balances may not exceed the balances computed according to the 
following arithmetic operations:
    (A) The servicer first projects a trial balance for each item over 
the next computation year (a trial running balance). In doing so the 
servicer assumes that it will make estimated disbursements on or before 
the earlier of the deadline to take advantage of discounts, if 
available, or the deadline to avoid a penalty. The servicer does not use 
pre-accrual on these disbursement dates. The servicer also assumes that 
the borrower will make periodic payments equal to one-twelfth of the 
estimated total annual escrow account disbursements.
    (B) The servicer then examines the monthly trial balance for each 
escrow account item and adds to the first monthly balance for each 
separate item an amount just sufficient to bring the lowest monthly 
trial balance for that item to zero, and then adjusts all other monthly 
balances accordingly.
    (C) The servicer then adds the permissible cushion, if any, to the 
monthly balance for the separate escrow account item. The permissible 
cushion is two months of escrow payments for the escrow account item 
(net of any increases or decreases because of prior year shortages or 
surpluses, respectively) or a lesser amount specified by State law or 
the mortgage document.
    (D) The servicer then examines the balances for each item to make 
certain that the lowest monthly balance for that item is less than or 
equal to one-sixth of the estimated total annual escrow account 
disbursements for that item or a lesser amount specified by State law or 
the mortgage document.
    (ii) In performing an escrow account analysis using single-item 
analysis, servicers may account for each escrow account item separately, 
but servicers shall not further divide accounts into sub-accounts, even 
if the payee of a disbursement requires installment payments. The target 
balances that the servicer derives using these steps yield the maximum 
limit for the escrow account. Appendix F to this part illustrates these 
steps.
    (e) Transfer of servicing. (1) If the new servicer changes either 
the monthly payment amount or the accounting method used by the 
transferor (old) servicer, then the new servicer shall provide the 
borrower with an initial escrow account statement within 60 days of the 
date of servicing transfer.
    (i) Where a new servicer provides an initial escrow account 
statement upon the transfer of servicing, the new servicer shall use the 
effective date of the transfer of servicing to establish the new escrow 
account computation year.

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    (ii) Where the new servicer retains the monthly payments and 
accounting method used by the transferor servicer, then the new servicer 
may continue to use the escrow account computation year established by 
the transferor servicer or may choose to establish a different 
computation year using a short-year statement. At the completion of the 
escrow account computation year or any short year, the new servicer 
shall perform an escrow analysis and provide the borrower with an annual 
escrow account statement.
    (2) The new servicer shall treat shortages, surpluses and 
deficiencies in the transferred escrow account according to the 
procedures set forth in Sec. 3500.17(f).
    (3) A pre-rule account remains a pre-rule account upon the transfer 
of servicing to a new servicer so long as the transfer occurs before the 
conversion date.
    (f) Shortages, surpluses, and deficiencies requirements--(1) Escrow 
account analysis. For each escrow account, the servicer shall conduct an 
escrow account analysis to determine whether a surplus, shortage or 
deficiency exists.
    (i) As noted in Sec. 3500.17(c)(2) and (3), the servicer shall 
conduct an escrow account analysis upon establishing an escrow account 
and at completion of the escrow account computation year.
    (ii) The servicer may conduct an escrow account analysis at other 
times during the escrow computation year. If a servicer advances funds 
in paying a disbursement, which is not the result of a borrower's 
payment default under the underlying mortgage document, then the 
servicer shall conduct an escrow account analysis to determine the 
extent of the deficiency before seeking repayment of the funds from the 
borrower under this paragraph (f).
    (2) Surpluses. (i) If an escrow account analysis discloses a 
surplus, the servicer shall, within 30 days from the date of the 
analysis, refund the surplus to the borrower if the surplus is greater 
than or equal to 50 dollars ($50). If the surplus is less than 50 
dollars ($50), the servicer may refund such amount to the borrower, or 
credit such amount against the next year's escrow payments.
    (ii) These provisions regarding surpluses apply if the borrower is 
current at the time of the escrow account analysis. A borrower is 
current if the servicer receives the borrower's payments within 30 days 
of the payment due date. If the servicer does not receive the borrower's 
payment within 30 days of the payment due date, then the servicer may 
retain the surplus in the escrow account pursuant to the terms of the 
mortgage loan documents.
    (iii) After an initial or annual escrow analysis has been performed, 
the servicer and the borrower may enter into a voluntary agreement for 
the forthcoming escrow accounting year for the borrower to deposit funds 
into the escrow account for that year greater than the limits 
established under paragraph (c) of this section. Such an agreement shall 
cover only one escrow accounting year, but a new voluntary agreement may 
be entered into after the next escrow analysis is performed. The 
voluntary agreement may not alter how surpluses are to be treated when 
the next escrow analysis is performed at the end of the escrow 
accounting year covered by the voluntary agreement.
    (3) Shortages. (i) If an escrow account analysis discloses a 
shortage of less than one month's escrow account payment, then the 
servicer has three possible courses of action:
    (A) The servicer may allow a shortage to exist and do nothing to 
change it;
    (B) The servicer may require the borrower to repay the shortage 
amount within 30 days; or
    (C) The servicer may require the borrower to repay the shortage 
amount in equal monthly payments over at least a 12-month period.
    (ii) If an escrow account analysis discloses a shortage that is 
greater than or equal to one month's escrow account payment, then the 
servicer has two possible courses of action:
    (A) The servicer may allow a shortage to exist and do nothing to 
change it; or
    (B) The servicer may require the borrower to repay the shortage in 
equal monthly payments over at least a 12-month period.

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    (4) Deficiency. If the escrow account analysis confirms a 
deficiency, then the servicer may require the borrower to pay additional 
monthly deposits to the account to eliminate the deficiency.
    (i) If the deficiency is less than one month's escrow account 
payment, then the servicer:
    (A) May allow the deficiency to exist and do nothing to change it;
    (B) May require the borrower to repay the deficiency within 30 days; 
or
    (C) May require the borrower to repay the deficiency in 2 or more 
equal monthly payments.
    (ii) If the deficiency is greater than or equal to 1 month's escrow 
payment, the servicer may allow the deficiency to exist and do nothing 
to change it or may require the borrower to repay the deficiency in two 
or more equal monthly payments.
    (iii) These provisions regarding deficiencies apply if the borrower 
is current at the time of the escrow account analysis. A borrower is 
current if the servicer receives the borrower's payments within 30 days 
of the payment due date. If the servicer does not receive the borrower's 
payment within 30 days of the payment due date, then the servicer may 
recover the deficiency pursuant to the terms of the mortgage loan 
documents.
    (5) Notice of shortage or deficiency in escrow account. The servicer 
shall notify the borrower at least once during the escrow account 
computation year if there is a shortage or deficiency in the escrow 
account. The notice may be part of the annual escrow account statement 
or it may be a separate document.
    (g) Initial escrow account statement. (1) Submission at settlement, 
or within 45 calendar days of settlement. As noted in 
Sec. 3500.17(c)(2), the servicer shall conduct an escrow account 
analysis before establishing an escrow account to determine the amount 
the borrower shall deposit into the escrow account, subject to the 
limitations of Sec. 3500.17(c)(1)(i). After conducting the escrow 
account analysis for each escrow account, the servicer shall submit an 
initial escrow account statement to the borrower at settlement or within 
45 calendar days of settlement for escrow accounts that are established 
as a condition of the loan.
    (i) The initial escrow account statement shall include the amount of 
the borrower's monthly mortgage payment and the portion of the monthly 
payment going into the escrow account and shall itemize the estimated 
taxes, insurance premiums, and other charges that the servicer 
reasonably anticipates to be paid from the escrow account during the 
escrow account computation year and the anticipated disbursement dates 
of those charges. The initial escrow account statement shall indicate 
the amount that the servicer selects as a cushion. The statement shall 
include a trial running balance for the account.
    (ii) Pursuant to Sec. 3500.17(h)(2), the servicer may incorporate 
the initial escrow account statement into the HUD-1 or HUD-1A settlement 
statement. If the servicer does not incorporate the initial escrow 
account statement into the HUD-1 or HUD-1A settlement statement, then 
the servicer shall submit the initial escrow account statement to the 
borrower as a separate document.
    (2) Time of submission of initial escrow account statement for an 
escrow account established after settlement. For escrow accounts 
established after settlement (and which are not a condition of the 
loan), a servicer shall submit an initial escrow account statement to a 
borrower within 45 calendar days of the date of establishment of the 
escrow account.
    (h) Format for initial escrow account statement. (1) The format and 
a completed example for an initial escrow account statement are set out 
in HUD Public Guidance Documents entitled ``Initial Escrow Account 
Disclosure Statement--Format'' and ``Initial Escrow Account Disclosure 
Statement--Example'', available in accordance with Sec. 3500.3.
    (2) Incorporation of initial escrow account statement into HUD-1 or 
HUD-1A settlement statement. Pursuant to Sec. 3500.9(a)(11), a servicer 
may add the initial escrow account statement to the HUD-1 or HUD-1A 
settlement statement. The servicer may include the initial escrow 
account statement in the basic text or may attach the initial

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escrow account statement as an additional page to the HUD-1 or HUD-1A 
settlement statement.
    (3) Identification of payees. The initial escrow account statement 
need not identify a specific payee by name if it provides sufficient 
information to identify the use of the funds. For example, appropriate 
entries include: county taxes, hazard insurance, condominium dues, etc. 
If a particular payee, such as a taxing body, receives more than one 
payment during the escrow account computation year, the statement shall 
indicate each payment and disbursement date. If there are several taxing 
authorities or insurers, the statement shall identify each taxing body 
or insurer (e.g., ``City Taxes'', ``School Taxes'', ``Hazard 
Insurance'', or ``Flood Insurance,'' etc.).
    (i) Annual escrow account statements. For each escrow account, a 
servicer shall submit an annual escrow account statement to the borrower 
within 30 days of the completion of the escrow account computation year. 
The servicer shall also submit to the borrower the previous year's 
projection or initial escrow account statement. The servicer shall 
conduct an escrow account analysis before submitting an annual escrow 
account statement to the borrower.
    (1) Contents of annual escrow account statement. The annual escrow 
account statement shall provide an account history, reflecting the 
activity in the escrow account during the escrow account computation 
year, and a projection of the activity in the account for the next year. 
In preparing the statement, the servicer may assume scheduled payments 
and disbursements will be made for the final 2 months of the escrow 
account computation year. The annual escrow account statement must 
include, at a minimum, the following (the items in paragraphs (i)(1)(i) 
through (i)(1)(iv) must be clearly itemized):
    (i) The amount of the borrower's current monthly mortgage payment 
and the portion of the monthly payment going into the escrow account;
    (ii) The amount of the past year's monthly mortgage payment and the 
portion of the monthly payment that went into the escrow account;
    (iii) The total amount paid into the escrow account during the past 
computation year;
    (iv) The total amount paid out of the escrow account during the same 
period for taxes, insurance premiums, and other charges (as separately 
identified);
    (v) The balance in the escrow account at the end of the period;
    (vi) An explanation of how any surplus is being handled by the 
servicer;
    (vii) An explanation of how any shortage or deficiency is to be paid 
by the borrower; and
    (viii) If applicable, the reason(s) why the estimated low monthly 
balance was not reached, as indicated by noting differences between the 
most recent account history and last year's projection. HUD Public 
Guidance Documents entitled ``Annual Escrow Account Disclosure 
Statement--Format'' and ``Annual Escrow Account Disclosure Statement--
Example'' set forth an acceptable format and methodology for conveying 
this information.
    (2) No annual statements in the case of default, foreclosure, or 
bankruptcy. This paragraph (i)(2) contains an exemption from the 
provisions of Sec. 3500.17(i)(1). If at the time the servicer conducts 
the escrow account analysis the borrower is more than 30 days overdue, 
then the servicer is exempt from the requirements of submitting an 
annual escrow account statement to the borrower under Sec. 3500.17(i). 
This exemption also applies in situations where the servicer has brought 
an action for foreclosure under the underlying mortgage loan, or where 
the borrower is in bankruptcy proceedings. If the servicer does not 
issue an annual statement pursuant to this exemption and the loan 
subsequently is reinstated or otherwise becomes current, the servicer 
shall provide a history of the account since the last annual statement 
(which may be longer than 1 year) within 90 days of the date the account 
became current.
    (3) Delivery with other material. The servicer may deliver the 
annual escrow account statement to the borrower with other statements or 
materials, including the Substitute 1098, which is provided for federal 
income tax purposes.

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    (4) Short year statements. A servicer may issue a short year annual 
escrow account statement (``short year statement'') to change one escrow 
account computation year to another. By using a short year statement a 
servicer may adjust its production schedule or alter the escrow account 
computation year for the escrow account.
    (i) Effect of short year statement. The short year statement shall 
end the ``escrow account computation year'' for the escrow account and 
establish the beginning date of the new escrow account computation year. 
The servicer shall deliver the short year statement to the borrower 
within 60 days from the end of the short year.
    (ii) Short year statement upon servicing transfer. Upon the transfer 
of servicing, the transferor (old) servicer shall submit a short year 
statement to the borrower within 60 days of the effective date of 
transfer.
    (iii) Short year statement upon loan payoff. If a borrower pays off 
a mortgage loan during the escrow account computation year, the servicer 
shall submit a short year statement to the borrower within 60 days after 
receiving the pay-off funds.
    (j) Formats for annual escrow account statement. The formats and 
completed examples for annual escrow account statements using single-
item analysis (pre-rule accounts) and aggregate analysis are set out in 
HUD Public Guidance Documents entitled ``Annual Escrow Account 
Disclosure Statement--Format'' and ``Annual Escrow Account Disclosure 
Statement--Example''.
    (k) Timely payments. (1) If the terms of any federally related 
mortgage loan require the borrower to make payments to an escrow 
account, the servicer must pay the disbursements in a timely manner, 
that is, on or before the deadline to avoid a penalty, as long as the 
borrower's payment is not more than 30 days overdue.
    (2) The servicer must advance funds to make disbursements in a 
timely manner as long as the borrower's payment is not more than 30 days 
overdue. Upon advancing funds to pay a disbursement, the servicer may 
seek repayment from the borrower for the deficiency pursuant to 
paragraph (f) of this section.
    (3) For the payment of property taxes from the escrow account, if a 
taxing jurisdiction offers a servicer a choice between annual and 
installment disbursements, the servicer must also comply with this 
paragraph (k)(3). If the taxing jurisdiction neither offers a discount 
for disbursements on a lump sum annual basis nor imposes any additional 
charge or fee for installment disbursements, the servicer must make 
disbursements on an installment basis. If, however, the taxing 
jurisdiction offers a discount for disbursements on a lump sum annual 
basis or imposes any additional charge or fee for installment 
disbursements, the servicer may at the servicer's discretion (but is not 
required by RESPA to), make lump sum annual disbursements in order to 
take advantage of the discount for the borrower or avoid the additional 
charge or fee for installments, as long as such method of disbursement 
complies with paragraphs (k)(1) and (k)(2) of this section. HUD 
encourages, but does not require, the servicer to follow the preference 
of the borrower, if such preference is known to the servicer.
    (4) Notwithstanding paragraph (k)(3) of this section, a servicer and 
borrower may mutually agree, on an individual case basis, to a different 
disbursement basis (installment or annual) or disbursement date for 
property taxes from that required under paragraph (k)(3) of this 
section, so long as the agreement meets the requirements of paragraphs 
(k)(1) and (k)(2) of this section. The borrower must voluntarily agree; 
neither loan approval nor any term of the loan may be conditioned on the 
borrower's agreeing to a different disbursement basis or disbursement 
date.
    (l) System of recordkeeping. (1) Each servicer shall keep records, 
which may involve electronic storage, microfiche storage, or any method 
of computerized storage, so long as the information is easily 
retrievable, reflecting the servicer's handling of each borrower's 
escrow account. The servicer's records shall include, but not be limited 
to, the payment of amounts into and from the escrow account and the 
submission of initial and annual escrow account statements to the 
borrower.
    (2) The servicer responsible for servicing the borrower's escrow 
account

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shall maintain the records for that account for a period of at least 
five years after the servicer last serviced the escrow account.
    (3) A servicer shall provide the Secretary with information 
contained in the servicer's records for a specific escrow account, or 
for a number or class of escrow accounts, within 30 days of the 
Secretary's written request for the information. The servicer shall 
convert any information contained in electronic storage, microfiche or 
computerized storage to paper copies for review by the Secretary.
    (i) To aid in investigations, the Secretary may also issue an 
administrative subpoena for the production of documents, and for the 
testimony of such witnesses as the Secretary deems advisable.
    (ii) If the subpoenaed party refuses to obey the Secretary's 
administrative subpoena, the Secretary is authorized to seek a court 
order requiring compliance with the subpoena from any United States 
district court. Failure to obey such an order of the court may be 
punished as contempt of court.
    (4) Borrowers may seek information contained in the servicer's 
records by complying with the provisions set forth in 12 U.S.C. 2605(e) 
and Sec. 3500.21(f).
    (5) After receiving a request (by letter or subpoena) from the 
Department for information relating to whether a servicer submitted an 
escrow account statement to the borrower, the servicer shall respond 
within 30 days. If the servicer is unable to provide the Department with 
such information, the Secretary shall deem that lack of information to 
be evidence of the servicer's failure to submit the statement to the 
borrower.
    (m) Penalties. (1) A servicer's failure to submit to a borrower an 
initial or annual escrow account statement meeting the requirements of 
this part shall constitute a violation of section 10(d) of RESPA (12 
U.S.C. 2609(d)) and this section. For each such violation, the Secretary 
shall assess a civil penalty of 55 dollars ($55), except that the total 
of the assessed penalties shall not exceed $110,000 for any one servicer 
for violations that occur during any consecutive 12-month period.
    (2) Violations described in paragraph (m)(1) of this section do not 
require any proof of intent. However, if a lender or servicer is shown 
to have intentionally disregarded the requirements that it submit the 
escrow account statement to the borrower, then the Secretary shall 
assess a civil penalty of $110 for each violation, with no limit on the 
total amount of the penalty.
    (n) Civil penalties procedures. The following procedures shall apply 
whenever the Department seeks to impose a civil money penalty for 
violation of section 10(c) of RESPA (12 U.S.C. 2609(c)):
    (1) Purpose and scope. This paragraph (n) explains the procedures by 
which the Secretary may impose penalties under 12 U.S.C. 2609(d). These 
procedures include administrative hearings, judicial review, and 
collection of penalties. This paragraph (n) governs penalties imposed 
under 12 U.S.C. 2609(d) and, when noted, adopts those portions of 24 CFR 
part 30 that apply to all other civil penalty proceedings initiated by 
the Secretary.
    (2) Authority. The Secretary has the authority to impose civil 
penalties under section 10(d) of RESPA (12 U.S.C. 2609(d)).
    (3) Notice of intent to impose civil money penalties. Whenever the 
Secretary intends to impose a civil money penalty for violations of 
section 10(c) of RESPA (12 U.S.C. 2609(c)), the responsible program 
official, or his or her designee, shall serve a written Notice of Intent 
to Impose Civil Money Penalties (Notice of Intent) upon any servicer on 
which the Secretary intends to impose the penalty. A copy of the Notice 
of Intent must be filed with the Chief Docket Clerk, Office of 
Administrative Law Judges, at the address provided in the Notice of 
Intent. The Notice of Intent will provide:
    (i) A short, plain statement of the facts upon which the Secretary 
has determined that a civil money penalty should be imposed, including a 
brief description of the specific violations under 12 U.S.C. 2609(c) 
with which the servicer is charged and whether such violations are 
believed to be intentional or unintentional in nature, or a combination 
thereof;
    (ii) The amount of the civil money penalty that the Secretary 
intends to

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impose and whether the limitations in 12 U.S.C. 2609(d)(1), apply;
    (iii) The right of the servicer to a hearing on the record to appeal 
the Secretary's preliminary determination to impose a civil penalty;
    (iv) The procedures to appeal the penalty;
    (v) The consequences of failure to appeal the penalty; and
    (vi) The name, address, and telephone number of the representative 
of the Department, and the address of the Chief Docket Clerk, Office of 
Administrative Law Judges, should the servicer decide to appeal the 
penalty.
    (4) Appeal procedures. (i) Answer. To appeal the imposition of a 
penalty, a servicer shall, within 30 days after receiving service of the 
Notice of Intent, file a written Answer with the Chief Docket Clerk, 
Office of Administrative Law Judges, Department of Housing and Urban 
Development, at the address provided in the Notice of Intent. The Answer 
shall include a statement that the servicer admits, denies, or does not 
have (and is unable to obtain) sufficient information to admit or deny 
each allegation made in the Notice of Intent. A statement of lack of 
information shall have the effect of a denial. Any allegation that is 
not denied shall be deemed admitted. Failure to submit an Answer within 
the required period of time will result in a decision by the 
Administrative Law Judge based upon the Department's submission of 
evidence in the Notice of Intent.
    (ii) Submission of evidence. A servicer that receives the Notice of 
Intent has a right to present evidence. Evidence must be submitted 
within 45 calendar days from the date of service of the Notice of 
Intent, or by such other time as may be established by the 
Administrative Law Judge (ALJ). The servicer's failure to submit 
evidence within the required period of time will result in a decision by 
the Administrative Law Judge based upon the Department's submission of 
evidence in the Notice of Intent. The servicer may present evidence of 
the following:
    (A) The servicer did submit the required escrow account statement(s) 
to the borrower(s); or
    (B) Even if the servicer did not submit the required statement(s), 
that the failure was not the result of an intentional disregard of the 
requirements of RESPA (for purposes of determining the penalty).
    (iii) Review of the record. The Administrative Law Judge will review 
the evidence submitted by the servicer, if any, and that submitted by 
the Department. The Administrative Law Judge shall make a determination 
based upon a review of the written record, except that the 
Administrative Law Judge may order an oral hearing if he or she finds 
that the determination turns on the credibility or veracity of a 
witness, or that the matter cannot be resolved by review of the 
documentary evidence. If the Administrative Law Judge decides that an 
oral hearing is appropriate, then the procedural rules set forth at 24 
CFR part 30 shall apply, to the extent that they are not inconsistent 
with this section.
    (iv) Burden of proof. The burden of proof or the burden of going 
forward with the evidence shall be upon the proponent of an action. The 
Department's submission of evidence that the servicer's system of 
records lacks information that the servicer submitted the escrow account 
statement(s) to the borrower(s) shall satisfy the Department's burden. 
Upon the Department's presentation of evidence of this lack of 
information in the servicer's system of records, the burden of proof 
shifts from the Secretary to the servicer to provide evidence that it 
submitted the statement(s) to the borrower.
    (v) Standard of proof. The standard of proof shall be the 
preponderance of the evidence.
    (5) Determination of the Administrative Law Judge. (i) Following the 
hearing or the review of the written record, the Administrative Law 
Judge shall issue a decision that shall contain findings of fact, 
conclusions of law, and the amount of any penalties imposed. The 
decision shall include a determination of whether the servicer has 
failed to submit any required statements and, if so, whether the 
servicer's failure was the result of an intentional disregard for the 
law's requirements.
    (ii) The Administrative Law Judge shall issue the decision to all 
parties within 30 days of the submission of the

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evidence or the post-hearing briefs, whichever is the last to occur.
    (iii) The decision of the Administrative Law Judge shall constitute 
the final decision of the Department and shall be final and binding on 
the parties.
    (6) Judicial review. (i) A person against whom the Department has 
imposed a civil money penalty under this part may obtain a review of the 
Department's final decision by filing a written petition for a review of 
the record with the appropriate United States district court.
    (ii) The petition must be filed within 30 days after the decision is 
filed with the Chief Docket Clerk, Office of Administrative Law Judges.
    (7) Collection of penalties. (i) If any person fails to comply with 
the Department's final decision imposing a civil money penalty, the 
Secretary, if the time for judicial review of the decision has expired, 
may request the Attorney General to bring an action in an appropriate 
United States district court to obtain a judgment against the person 
that has failed to comply with the Department's final decision.
    (ii) In any such collection action, the validity and appropriateness 
of the Department's final decision imposing the civil penalty shall not 
be subject to review in the district court.
    (iii) The Secretary may obtain such other relief as may be 
available, including attorney fees and other expenses in connection with 
the collection action.
    (iv) Interest on and other charges for any unpaid penalty may be 
assessed in accordance with 31 U.S.C. 3717.
    (8) Offset. In addition to any other rights as a creditor, the 
Secretary may seek to collect a civil money penalty through 
administrative offset.
    (9) At any time before the decision of the Administrative Law Judge, 
the Secretary and the servicer may enter into an administrative 
settlement. The settlement may include provisions for interest, 
attorney's fees, and costs related to the proceeding. Such settlement 
will terminate the appearance before the Administrative Law Judge.
    (o) Discretionary payments. Any borrower's discretionary payment 
(such as credit life or disability insurance) made as part of a monthly 
mortgage payment is to be noted on the initial and annual statements. If 
a discretionary payment is established or terminated during the escrow 
account computation year, this change should be noted on the next annual 
statement. A discretionary payment is not part of the escrow account 
unless the payment is required by the lender, in accordance with the 
definition of ``settlement service'' in Sec. 3500.2, or the servicer 
chooses to place the discretionary payment in the escrow account. If a 
servicer has not established an escrow account for a federally related 
mortgage loan and only receives payments for discretionary items, this 
section is not applicable.

(Approved by the Office of Management and Budget under control number 
2502-0501)

[61 FR 13233, Mar. 26, 1996, as amended at 61 FR 46510, Sept. 3, 1996; 
61 FR 50219, Sept. 24, 1996; 61 FR 58476, Nov. 15, 1996; 63 FR 3236, 
Jan. 21, 1998]