[Federal Register Volume 78, Number 251 (Tuesday, December 31, 2013)]
[Rules and Regulations]
[Pages 79730-80365]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-28210]



[[Page 79729]]

Vol. 78

Tuesday,

No. 251

December 31, 2013

Part II





Bureau of Consumer Financial Protection





-----------------------------------------------------------------------





12 CFR Parts 1024 and 1026





Integrated Mortgage Disclosures Under the Real Estate Settlement 
Procedures Act (Regulation X) and the Truth In Lending Act (Regulation 
Z); Final Rule

  Federal Register / Vol. 78 , No. 251 / Tuesday, December 31, 2013 / 
Rules and Regulations  

[[Page 79730]]


-----------------------------------------------------------------------

BUREAU OF CONSUMER FINANCIAL PROTECTION

12 CFR Parts 1024 and 1026

[Docket No. CFPB-2012-0028]
RIN 3170-AA19


Integrated Mortgage Disclosures Under the Real Estate Settlement 
Procedures Act (Regulation X) and the Truth In Lending Act (Regulation 
Z)

AGENCY: Bureau of Consumer Financial Protection.

ACTION: Final rule; official interpretation.

-----------------------------------------------------------------------

SUMMARY: Sections 1098 and 1100A of the Dodd-Frank Wall Street Reform 
and Consumer Protection Act (Dodd-Frank Act) direct the Bureau to 
publish rules and forms that combine certain disclosures that consumers 
receive in connection with applying for and closing on a mortgage loan 
under the Truth in Lending Act and the Real Estate Settlement 
Procedures Act. Consistent with this requirement, the Bureau is 
amending Regulation X (Real Estate Settlement Procedures Act) and 
Regulation Z (Truth in Lending) to establish new disclosure 
requirements and forms in Regulation Z for most closed-end consumer 
credit transactions secured by real property. In addition to combining 
the existing disclosure requirements and implementing new requirements 
imposed by the Dodd-Frank Act, the final rule provides extensive 
guidance regarding compliance with those requirements.

DATES: The rule is effective August 1, 2015.

FOR FURTHER INFORMATION CONTACT: David Friend, Jane Gao, Eamonn K. 
Moran, Nora Rigby, Michael Scherzer, Priscilla Walton-Fein, Shiri Wolf, 
Counsels; Richard B. Horn, Senior Counsel & Special Advisor, Office of 
Regulations, Consumer Financial Protection Bureau, 1700 G Street NW., 
Washington, DC 20552 at (202) 435-7700.

SUPPLEMENTARY INFORMATION:

I. Summary of the Final Rule

A. Background

    For more than 30 years, Federal law has required lenders to provide 
two different disclosure forms to consumers applying for a mortgage. 
The law also has generally required two different forms at or shortly 
before closing on the loan. Two different Federal agencies developed 
these forms separately, under two Federal statutes: the Truth in 
Lending Act (TILA) and the Real Estate Settlement Procedures Act of 
1974 (RESPA). The information on these forms is overlapping and the 
language is inconsistent. Not surprisingly, consumers often find the 
forms confusing. It is also not surprising that lenders and settlement 
agents find the forms burdensome to provide and explain.
    The Dodd-Frank Wall Street Reform and Consumer Protection Act 
(Dodd-Frank Act) directs the Bureau to integrate the mortgage loan 
disclosures under TILA and RESPA sections 4 and 5.\1\ Section 1032(f) 
of the Dodd-Frank Act mandated that the Bureau propose for public 
comment rules and model disclosures that integrate the TILA and RESPA 
disclosures by July 21, 2012.\2\ The Bureau satisfied this statutory 
mandate and issued a proposed rule and forms on July 9, 2012 (the TILA-
RESPA Proposal or the proposal).\3\ To accomplish this, the Bureau 
engaged in extensive consumer and industry research, analysis of public 
comment, and public outreach for more than a year. After issuing the 
proposal, the Bureau conducted a large-scale quantitative validation 
study of its integrated disclosures with 858 consumers, which concluded 
that the Bureau's integrated disclosures had on average statistically 
significant better performance than the current disclosures under TILA 
and RESPA. The Bureau is now finalizing a rule with new, integrated 
disclosures (the TILA-RESPA Final Rule or the final rule).\4\ The final 
rule also provides a detailed explanation of how the forms should be 
filled out and used.
---------------------------------------------------------------------------

    \1\ Dodd-Frank Act sections 1098 & 1100A, codified at 12 U.S.C. 
2603(a) & 15 U.S.C. 1604(b), respectively.
    \2\ 12 U.S.C. 5532(f).
    \3\ See Press release, U.S. Bureau of Consumer Fin. Prot., 
Consumer Financial Protection Bureau proposes ``Know Before You 
Owe'' mortgage forms (July 9, 2012), available at http://www.consumerfinance.gov/pressreleases/consumer-financial-protection-bureau-proposes-know-before-you-owe-mortgage-forms/; see also Blog 
post, U.S. Bureau of Consumer Fin. Prot., Know Before You Owe: 
Introducing our proposed mortgage disclosure forms (July 9, 2012), 
available at http://www.consumerfinance.gov/blog/know-before-you-owe-introducing-our-proposed-mortgage-disclosure-forms/.
    \4\ See part III below for a discussion of the Bureau's 
qualitative testing of prototypes of the forms with more than 100 
consumers, lenders, mortgage brokers, and settlement agents before 
issuing the proposal and its quantitative testing of the forms with 
858 consumers across the country. This part also describes the 
Bureau's outreach efforts, including the panel convened by the 
Bureau to examine ways to minimize the burden of the proposed rule 
on small businesses, as well as the Bureau's handling of the over 
2,800 public comments the Bureau received during the public comment 
period that followed the issuance of the proposal and other 
information on the record.
---------------------------------------------------------------------------

    The first new form (the Loan Estimate) is designed to provide 
disclosures that will be helpful to consumers in understanding the key 
features, costs, and risks of the mortgage for which they are applying. 
This form will be provided to consumers within three business days 
after they submit a loan application. The second form (the Closing 
Disclosure) is designed to provide disclosures that will be helpful to 
consumers in understanding all of the costs of the transaction. This 
form will be provided to consumers three business days before they 
close on the loan.
    The forms use clear language and design to make it easier for 
consumers to locate key information, such as interest rate, monthly 
payments, and costs to close the loan. The forms also provide more 
information to help consumers decide whether they can afford the loan 
and to compare the cost of different loan offers, including the cost of 
the loans over time.
    In developing the new Loan Estimate and Closing Disclosure forms, 
the Bureau has reconciled the differences between the existing forms 
and combined several other mandated disclosures, such as the appraisal 
notice under the Equal Credit Opportunity Act and the servicing 
application disclosure under RESPA. The Bureau also has responded to 
industry complaints of uncertainty about how to fill out the existing 
forms by providing detailed instructions on how to complete the new 
forms.\5\ This should reduce the burden on lenders and others in 
preparing the forms in the future.
---------------------------------------------------------------------------

    \5\ This guidance is provided in the regulations and the 
Official Interpretations, which are in Supplement I.
---------------------------------------------------------------------------

B. Scope of the Final Rule

    The final rule applies to most closed-end consumer mortgages. It 
does not apply to home equity lines of credit, reverse mortgages, or 
mortgages secured by a mobile home or by a dwelling that is not 
attached to real property (in other words, land). The final rule also 
does not apply to loans made by a creditor who makes five or fewer 
mortgages in a year.\6\
---------------------------------------------------------------------------

    \6\ For additional discussion of the scope of the final rule, 
see part V below regarding Sec.  1026.19, Coverage of Integrated 
Disclosure Requirements.
---------------------------------------------------------------------------

C. The Loan Estimate

    The Loan Estimate form replaces two current Federal forms. It 
replaces the Good Faith Estimate designed by the Department of Housing 
and Urban Development (HUD) under RESPA and

[[Page 79731]]

the ``early'' Truth in Lending disclosure designed by the Board of 
Governors of the Federal Reserve System (the Board) under TILA.\7\ The 
final rule and the Official Interpretations (on which creditors and 
other persons can rely) contain detailed instructions as to how each 
line on the Loan Estimate form should be completed.\8\ There are sample 
forms for different types of loan products.\9\ The Loan Estimate form 
also incorporates new disclosures required by Congress under the Dodd-
Frank Act.\10\
---------------------------------------------------------------------------

    \7\ These disclosures are available at http://www.hud.gov/offices/hsg/rmra/res/gfestimate.pdf &http://ecfr.gpoaccess.gov/graphics/pdfs/ec27se91.024.pdf.
    \8\ The requirements for the Loan Estimate are in Sec.  1026.37. 
Additional discussion of this and other sections of the rule is 
provided in the relevant portion of part V below.
    \9\ Appendix H to the final rule provides examples of how to 
fill out these forms for a variety of different loans, including 
loans with fixed or adjustable rates or features such as balloon 
payments and prepayment penalties.
    \10\ For a discussion of these disclosures, see part V.B below.
---------------------------------------------------------------------------

    Provision by mortgage broker. Recognizing that consumers may work 
more closely with a mortgage broker, under the final rule and similar 
to the current rules, either a mortgage broker or creditor is required 
to provide the Loan Estimate form upon receipt of an application by a 
mortgage broker. However, even if the mortgage broker provides the Loan 
Estimate, the creditor remains responsible for complying with all 
requirements concerning provision of the form.\11\
---------------------------------------------------------------------------

    \11\ This provision is in Sec.  1026.19(e)(1)(ii).
---------------------------------------------------------------------------

    Timing. The creditor or broker must give the form to the consumer 
no later than three business days after the consumer applies for a 
mortgage loan.\12\ The final rule contains a definition of what 
constitutes an ``application'' for these purposes, which consists of 
the consumer's name, income, social security number to obtain a credit 
report, the property address, an estimate of the value of the property, 
and the mortgage loan amount sought.\13\
---------------------------------------------------------------------------

    \12\ This provision is in Sec.  1026.19(e)(1)(iii).
    \13\ The definition of ``application'' is in Sec.  1026.2(a)(3).
---------------------------------------------------------------------------

    Limitation on fees. Consistent with current law, the creditor 
generally cannot charge consumers any fees until after the consumers 
have been given the Loan Estimate form and the consumers have 
communicated their intent to proceed with the transaction. There is an 
exception that allows creditors to charge fees to obtain consumers' 
credit reports.\14\
---------------------------------------------------------------------------

    \14\ This provision is in Sec.  1026.19(e)(2)(i).
---------------------------------------------------------------------------

    Disclaimer on early estimates. Creditors and other persons may 
provide consumers with written estimates prior to application. The rule 
requires that any such written estimates contain a disclaimer to 
prevent confusion with the Loan Estimate form. This disclaimer is not 
required for advertisements.\15\
---------------------------------------------------------------------------

    \15\ This provision is in Sec.  1026.19(e)(2)(ii).
---------------------------------------------------------------------------

D. The Closing Disclosure

    The Closing Disclosure form replaces the current form used to close 
a loan, the HUD-1, which was designed by HUD under RESPA. It also 
replaces the revised Truth in Lending disclosure designed by the Board 
under TILA.\16\ The rule and the Official Interpretations (on which 
creditors and other persons can rely) contain detailed instructions as 
to how each line on the Closing Disclosure form should be 
completed.\17\ The Closing Disclosure form contains additional new 
disclosures required by the Dodd-Frank Act and a detailed accounting of 
the settlement transaction.
---------------------------------------------------------------------------

    \16\ These disclosures are available at http://www.hud.gov/offices/adm/hudclips/forms/files/1.pdf & http://ecfr.gpoaccess.gov/graphics/pdfs/ec27se91.024.pdf.
    \17\ The requirements for the Closing Disclosure are in Sec.  
1026.38(a)(3).
---------------------------------------------------------------------------

    Timing. The creditor must give consumers the Closing Disclosure 
form to consumers so that they receive it at least three business days 
before the consumer closes on the loan.\18\ If the creditor makes 
certain significant changes between the time the Closing Disclosure 
form is given and the closing--specifically, if the creditor makes 
changes to the APR above \1/8\ of a percent for most loans (and \1/4\ 
of a percent for loans with irregular payments or periods), changes the 
loan product, or adds a prepayment penalty to the loan--the consumer 
must be provided a new form and an additional three-business-day 
waiting period after receipt of the new form. Less significant changes 
can be disclosed on a revised Closing Disclosure form provided to the 
consumer at or before closing, without delaying the closing.\19\ This 
is a change from the proposal, which would have required that most 
changes cause an additional three-business-day waiting period before 
the consumer could close on the loan. The Bureau received extensive 
public comment raising concerns about this aspect of the proposal, 
especially about its impact to cause frequent closing delays in the 
residential real estate market. In response to the public comments 
received on this issue, the Bureau decided to limit the types of 
changes that will result in an additional three-business-day waiting 
period to the three changes described above. This requirement will 
provide the important protection to consumers of an additional three-
day waiting period for these significant changes, but will not cause 
closing delays for less significant costs that may frequently change.
---------------------------------------------------------------------------

    \18\ This provision is in Sec.  1026.19(f)(1)(ii).
    \19\ This provision is in Sec.  1026.19(f)(2).
---------------------------------------------------------------------------

    Provision of disclosures. Currently, settlement agents are required 
to provide the HUD-1 under RESPA, while creditors are required to 
provide the revised Truth in Lending disclosure under TILA. Under the 
final rule, the creditor is responsible for delivering the Closing 
Disclosure form to the consumer, but creditors may use settlement 
agents to provide the Closing Disclosure, provided that they comply 
with the final rule's requirements for the Closing Disclosure.\20\ The 
final rule acknowledges settlement agents' longstanding involvement in 
the closing of real estate and mortgage loan transactions, as well as 
their preparation and delivery of the HUD-1. The final rule avoids 
creating uncertainty regarding the role of settlement agents and also 
leaves sufficient flexibility for creditors and settlement agents to 
arrive at the most efficient means of preparation and delivery of the 
Closing Disclosure to consumers.
---------------------------------------------------------------------------

    \20\ This provision is in Sec.  1026.19(f)(1).
---------------------------------------------------------------------------

E. Limits on Closing Cost Increases

    Similar to existing law, the final rule restricts the circumstances 
in which consumers can be required to pay more for settlement 
services--the various services required to complete a loan, such as 
appraisals, inspections, etc.--than the amount stated on their Loan 
Estimate form. Unless an exception applies, charges for the following 
services cannot increase: (1) The creditor's or mortgage broker's 
charges for its own services; (2) charges for services provided by an 
affiliate of the creditor or mortgage broker; and (3) charges for 
services for which the creditor or mortgage broker does not permit the 
consumer to shop. Charges for other services can increase, but 
generally not by more than 10 percent, unless an exception applies.\21\
---------------------------------------------------------------------------

    \21\ The limitations and the exceptions discussed below are in 
Sec.  1026.19(e)(3) and (4).
---------------------------------------------------------------------------

    The exceptions include, for example, situations when: (1) The 
consumer asks for a change; (2) the consumer chooses a service provider 
that was not identified by the creditor; (3) information provided at 
application was inaccurate or becomes inaccurate; or (4) the Loan 
Estimate expires. When an exception applies, the creditor generally

[[Page 79732]]

must provide an updated Loan Estimate form within three business days.

F. Proposals Not Adopted in the Final Rule

    The proposed rule would have redefined the way the Annual 
Percentage Rate or ``APR'' is calculated. Under the proposal, the APR 
would have encompassed almost all of the up-front costs of the 
loan.\22\ The Bureau explained in the proposal that it believed the 
change would make it easier for consumers to use the APR to compare 
loans and easier for industry to calculate the APR. The proposed rule 
also would have required creditors to keep records of the Loan Estimate 
and Closing Disclosure forms provided to consumers in an electronic, 
machine readable format to make it easier for regulators to monitor 
compliance.\23\
---------------------------------------------------------------------------

    \22\ These proposed revisions are discussed below in part V, in 
the section-by-section analysis of Sec.  1026.4.
    \23\ This proposed provision is discussed below in part V, in 
the section-by-section analysis of Sec.  1026.25.
---------------------------------------------------------------------------

    Based on public comments it received raising implementation and 
cost concerns regarding these two proposals, the Bureau has determined 
not to finalize these provisions in the final rule. The Bureau 
continues to believe these ideas may have benefits for consumers and 
industry, however, and intends to continue following up on both issues. 
For example, the Bureau intends to work closely with industry on 
private data standard initiatives to promote consistency in data 
transmission and storage. After additional study, the Bureau may 
propose rules on either or both topics.
    The Bureau also decided not to require in the final rule a 
disclosure item that had been mandated by the Dodd-Frank Act, but that 
caused confusion at its consumer testing. Specifically, the Dodd-Frank 
Act requires creditors to disclose, in the case of residential mortgage 
loans, ``the approximate amount of the wholesale rate of funds in 
connection with the loan.'' \24\ To implement this requirement, the 
proposal would have required creditors to disclose the approximate cost 
of funds used to make a loan on the Closing Disclosure.\25\ Because 
consumer testing conducted by the Bureau prior to its issuance of the 
proposal suggested that consumers do not understand the disclosure and 
that it would not provide a meaningful benefit to consumers, the Bureau 
alternatively proposed to exempt creditors from the cost of funds 
disclosure requirement.
---------------------------------------------------------------------------

    \24\ 15 U.S.C. 1638(a)(17).
    \25\ This proposed provision is discussed below in part V, in 
the section-by-section analysis of Sec.  1026.38(o)(6).
---------------------------------------------------------------------------

    The Bureau considered the comments it received on this disclosure 
in addition to the consumer testing results. The comments echoed the 
Bureau's concerns regarding consumer confusion from this disclosure, 
and also raised implementation, compliance, and cost concerns. The 
Bureau has decided to exempt creditors from the cost of funds 
disclosure requirement. The Bureau believes this approach will simplify 
the disclosure forms, making them more effective for consumers, and 
reduce compliance burden.\26\
---------------------------------------------------------------------------

    \26\ However, the Bureau is finalizing the Dodd-Frank Act 
requirement to include the total interest percentage disclosure on 
both the Loan Estimate and Closing Disclosure, because consumers at 
the Bureau's consumer testing were able to understand and use the 
total interest percentage disclosure on both the Loan Estimate and 
Closing Disclosure. This proposed provision is discussed below in 
part V, in the section-by-section analyses of Sec. Sec.  
1026.37(l)(3) and 1026.38(o)(5).
---------------------------------------------------------------------------

G. Effective Date

    The final rule is effective on August 1, 2015. The final rule 
applies to transactions for which the creditor or mortgage broker 
receives an application on or after that date, except that new Sec.  
1026.19(e)(2) and the amendments of this final rule to Sec.  
1026.28(a)(1) and the commentary to Sec.  1026.29 become effective on 
that date, without respect to whether an application has been received 
on that date.\27\
---------------------------------------------------------------------------

    \27\ For additional discussion regarding the effective date of 
the final rule, see part VI below.
---------------------------------------------------------------------------

II. Background

A. The Mortgage Market

Overview of the Market and the Mortgage Crisis
    The mortgage market is the single largest market for consumer 
financial products and services in the United States, with 
approximately $9.4 trillion in loans outstanding.\28\ During the last 
decade, the market went through an unprecedented cycle of expansion and 
contraction that was fueled in part by the securitization of mortgages 
and creation of increasingly sophisticated derivative products designed 
to mitigate accompanying risks to investors. So many other parts of the 
American financial system were drawn into mortgage-related activities 
that when the bubble collapsed in 2008, it sparked the most severe 
recession in the United States since the Great Depression.\29\ In the 
last quarter of 2008 and early in 2009, GDP was falling at an annual 
rate of roughly 6 percent.\30\ By the Fall of 2009, unemployment 
reached a peak of 10 percent.\31\ The percentage of loans in the 
foreclosure process reached its peak of 4.63 in both the first and the 
fourth quarters of 2010.\32\ From peak to trough, the fall in housing 
prices is estimated to have resulted in about $7 trillion in household 
wealth losses.\33\ Further, five years after the collapse of Lehman 
Brothers and AIG, the United States continues to grapple with the 
fallout.
---------------------------------------------------------------------------

    \28\ Bd. of Governors of the Fed. Reserve Sys., Flow of Funds, 
Balance Sheets, and Integrated Macroeconomic Accounts (June 2013).
    \29\ See Thomas F. Siems, Branding the Great Recession, Fin. 
Insights, May 13, 2012, Vol. 1 Issue 1 at 3, available at http://www.dallasfed.org/assets/documents/banking/firm/fi/fi1201.pdf 
(stating that the [great recession] ``was the longest and deepest 
economic contraction, as measured by the drop in real GDP, since the 
Great Depression.'').
    \30\ Bureau of Econ. Analysis, U.S. Dep't of Commerce, Real 
Gross Domestic Product (Nov. 7, 2013), available at http://research.stlouisfed.org/fred2/series/GDPC1.
    \31\ Bureau of Labor Statistics, U.S. Dep't of Labor, Labor 
Force Statistics from the Current Population Survey (Nov. 19, 2013), 
available at http://data.bls.gov/timeseries/LNS14000000 (Labor Force 
Statistics from 2003 through 2013).
    \32\ Press Release, Mortg. Bankers Ass'n, Short-term 
Delinquencies Fall to Pre-Recession Levels, Loans in Foreclosure Tie 
All-Time Record in Latest MBA National Delinquency Survey (Feb. 17, 
2011), available at http://www.mortgagebankers.org/NewsandMedia/PressCenter/75706.htm.
    \33\ Bd. Of Governors of the Fed. Reserve Sys., The U.S. Housing 
Market: Current Conditions and Policy Considerations, at 3 (2012), 
available at http://www.federalreserve.gov/publications/other-reports/files/housing-white-paper-20120104.pdf.
---------------------------------------------------------------------------

    The expansion in this market was accompanied by particular economic 
conditions (including an era of low interest rates and rising housing 
prices) and changes within the industry. Interest rates dropped 
significantly--by more than 20 percent--from 2000 through 2003.\34\ 
Housing prices increased dramatically--about 152 percent--between 1997 
and 2006.\35\ Driven by the decrease in interest rates and the increase 
in housing prices, the volume of refinancings increased rapidly, from 
about 2.5 million loans in 2000 to more than 15 million in 2003.\36\
---------------------------------------------------------------------------

    \34\ See U.S. Dep't. of Hous. and Urban Dev., An Analysis of 
Mortgage Refinancing, 2001-2003 (2004), available at 
www.huduser.org/Publications/pdf/MortgageRefinance03.pdf; Souphala 
Chomsisengphet & Anthony Pennington-Cross, The Evolution of the 
Subprime Mortgage Market, 88, No. 1 Fed. Res. Bank of St. Louis 
Review, at 48 (Jan./Feb. 2006), available at http://research.stlouisfed.org/publications/review/article/5019 org/publications/review/article/5019.
    \35\ The Financial Crisis Inquiry Commission, The Financial 
Crisis Inquiry Report at 156 (2011) (FCIC Report), available at 
http://www.gpo.gov/fdsys/pkg/GPO-FCIC/pdf/GPO-FCIC.pdf.
    \36\ An Analysis of Mortgage Refinancing, 2001-2003, at 1.
---------------------------------------------------------------------------

    In the mid-2000s, the market experienced a steady deterioration of 
credit standards in mortgage lending, with evidence that loans were 
made solely against collateral, or even against expected increases in 
the value of

[[Page 79733]]

collateral, and without consideration of ability to repay. This 
deterioration of credit standards was particularly evidenced by the 
growth of ``subprime'' and ``Alt-A'' products.\37\ Subprime products 
were sold primarily to consumers with poor or no credit history, 
although there is evidence that some consumers who would have qualified 
for ``prime'' loans were steered into subprime loans as well.\38\ The 
Alt-A category of loans permitted consumers to take out mortgage loans 
while providing little or no documentation of income or other evidence 
of repayment ability. Because these loans involved additional risk, 
they were typically more expensive to consumers than ``prime'' 
mortgages, although many of them had very low introductory interest 
rates. In 2003, subprime and Alt-A origination volume was about $400 
billion; in 2006, it had reached $830 billion.\39\
---------------------------------------------------------------------------

    \37\ FCIC Report at 88. These products included most notably \2/
28\ and \3/27\ hybrid adjustable rate mortgages (ARMs) and option 
ARM products. Id. at 106. A hybrid ARM is an adjustable rate 
mortgage loan that has a low fixed introductory rate for a certain 
period of time. An option ARM is an adjustable rate mortgage loan 
that has a scheduled loan payment that may result in negative 
amortization for a certain period of time, but that expressly 
permits specified larger payments in the contract or servicing 
documents, such as an interest-only payment or a fully amortizing 
payment. For these loans, the scheduled negatively amortizing 
payment was typically described in marketing and servicing materials 
as the ``optional payment.'' These products were often marketed to 
subprime customers.
    \38\ For example, the Federal Reserve Board on July 18, 2011, 
issued a consent cease and desist order and assessed an $85 million 
civil money penalty against Wells Fargo & Company of San Francisco, 
a registered bank holding company, and Wells Fargo Financial, Inc., 
of Des Moines. The order addresses allegations that Wells Fargo 
Financial employees steered potential prime-eligible consumers into 
more costly subprime loans and separately falsified income 
information in mortgage applications. In addition to the civil money 
penalty, the order requires that Wells Fargo compensate affected 
consumers. See Press Release, Bd. Of Governors of the Fed. Reserve 
Sys. (July 20, 2011), available at http://www.federalreserve.gov/newsevents/press/enforcement/20110720a.htm.
    \39\ Inside Mortgage Fin., 2011 Mortgage Statistical Annual: 
Mortgage Originations by Product, at 20 (2011).
---------------------------------------------------------------------------

    So long as housing prices were continuing to increase, it was 
relatively easy for consumers to refinance their existing loans into 
more affordable products to avoid interest rate resets and other 
adjustments. When housing prices began to decline in 2005, however, 
refinancing became more difficult and delinquency rates on subprime and 
Alt-A products increased dramatically.\40\ More and more consumers, 
especially those with subprime and Alt-A loans, were unable or 
unwilling to make their mortgage payments. An early sign of the 
mortgage crisis was an upswing in early payment defaults--generally 
defined as borrowers being 60 or more days delinquent within the first 
year. Prior to 2006, 1.1 percent of mortgages would end up 60 or more 
days delinquent within the first two years.\41\ Taking a more expansive 
definition of early payment default to include 60 days delinquent 
within the first two years, this figure was double the historic average 
during 2006, 2007 and 2008.\42\ First payment defaults--mortgages taken 
out by consumers who never made a single payment--exceeded 1.5 percent 
of loans in early 2007.\43\ In addition, as the economy worsened, the 
rates of serious delinquency (90 or more days past due or in 
foreclosure) for the subprime and Alt-A products began a steep increase 
from approximately 10 percent in 2006, to 20 percent in 2007, to more 
than 40 percent in 2010.\44\
---------------------------------------------------------------------------

    \40\ FCIC Report at 215-217.
    \41\ CoreLogic's TrueStandings Servicing (reflects first-lien 
mortgage loans) (data service accessible only through paid 
subscription).
    \42\ Id.
    \43\ Id.
    \44\ Id. at 217.
---------------------------------------------------------------------------

    The impact of this level of delinquencies was severe on creditors 
who held loans on their books and on private investors who purchased 
loans directly or through securitized vehicles. Prior to and during the 
bubble, the evolution of the securitization of mortgages attracted 
increasing involvement from financial institutions that were not 
directly involved in the extension of credit to consumers and from 
investors worldwide. Securitization of mortgages allows originating 
creditors to sell off their loans (and reinvest the funds earned in 
making new ones) to investors who want an income stream over time. 
Securitization had been pioneered by what are now called government-
sponsored enterprises (GSEs), including the Federal National Mortgage 
Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation 
(Freddie Mac). But by the early 2000s, large numbers of private 
financial institutions were deeply involved in creating increasingly 
complex mortgage-related investment vehicles through securities and 
derivative products. The private securitization-backed subprime and 
Alt-A mortgage market ground to a halt in 2007 in the face of the 
rising delinquencies on subprime and Alt-A products.\45\
---------------------------------------------------------------------------

    \45\ Id. at 124.
---------------------------------------------------------------------------

    While there remains debate about which market issues definitively 
sparked this crisis, there were several mortgage origination issues 
that pervaded the mortgage lending system prior to the crisis and are 
generally accepted as having contributed to its collapse. First, the 
market experienced a steady deterioration of credit standards in 
mortgage lending, particularly evidenced by the growth of subprime and 
Alt-A loans, which consumers were often unable or unwilling to 
repay.\46\
---------------------------------------------------------------------------

    \46\ FCIC Report at 88.
---------------------------------------------------------------------------

    Second, the mortgage market saw a proliferation of more complex 
mortgage products with terms that were often difficult for consumers to 
understand. These products included most notably \2/28\ and \3/27\ 
Hybrid Adjustable Rate Mortgages and Option ARM products.\47\ These 
products were often marketed to subprime and Alt-A customers. The 
appetite on the part of mortgage investors for such products often 
created inappropriate incentives for mortgage originators to originate 
these more expensive and profitable mortgage products.\48\
---------------------------------------------------------------------------

    \47\ Id. at 106. ``Hybrid Adjustable Rate Mortgage'' is a term 
frequently used to describe adjustable rate mortgage loans that have 
a low fixed introductory rate for a certain period of time. ``Option 
ARM'' is a term frequently used to describe adjustable rate mortgage 
loans that have a scheduled loan payment that may result in negative 
amortization for a certain period of time, but that expressly permit 
specified larger payments in the contract or servicing documents, 
such as an interest-only payment or a fully amortizing payment. For 
these loans, the scheduled negatively amortizing payment was 
typically described in marketing and servicing materials as the 
``optional payment.''
    \48\ Id. at 109.
---------------------------------------------------------------------------

    Third, responsibility for the regulation of consumer financial 
protection laws was spread across seven regulators including the Board, 
HUD, the Office of Thrift Supervision, the Federal Trade Commission, 
the Federal Deposit Insurance Corporation, the Office of the 
Comptroller of the Currency, and the National Credit Union 
Administration. Such a spread in responsibility may have hampered the 
government's ability to coordinate regulatory monitoring and response 
to such issues.\49\
---------------------------------------------------------------------------

    \49\ Id. at 111.
---------------------------------------------------------------------------

    In the wake of this financial crisis, Congress passed the Dodd-
Frank Act to address many of these concerns. In this Act, among other 
things, Congress created the Bureau and consolidated the rulemaking 
authority for many consumer financial protection statutes, including 
the two primary Federal consumer protection statutes governing mortgage 
origination, the Truth in Lending Act (TILA) and the Real Estate 
Settlement Procedures Act (RESPA), in the Bureau.\50\ Congress also 
provided

[[Page 79734]]

the Bureau with supervision authority for certain consumer financial 
protection statutes over certain entities, including insured depository 
institutions with total assets of over $10 billion and their 
affiliates, and certain other non-depository entities, including all 
companies that offer or provide origination, brokerage, or servicing of 
consumer mortgages.\51\
---------------------------------------------------------------------------

    \50\ Sections 1011 and 1021 of the Dodd-Frank Act, 12 U.S.C. 
5491, 5511. The Consumer Financial Protection Act is substantially 
codified at 12 U.S.C. 5481-5603.
    \51\ Sections 1024 through 1026 of title X of the Dodd-Frank 
Act, codified at 12 U.S.C. 5514-5516.
---------------------------------------------------------------------------

    At the same time, Congress significantly amended the statutory 
requirements governing mortgage practices with the intent to restrict 
the practices that contributed to the crisis. For example, in response 
to concerns that some lenders made loans to consumers without 
sufficiently determining their ability to repay, section 1411 of the 
Dodd-Frank Act amended TILA to require that creditors make a reasonable 
and good faith determination, based on verified and documented 
information, that the consumer will have a reasonable ability to repay 
the loan.\52\ Sections 1032(f), 1098, and 1100A of the Dodd-Frank Act 
address concerns that Federal mortgage disclosures did not adequately 
explain to consumers the terms of their loans (particularly complex 
adjustable rate or optional payment loans) by requiring new disclosure 
forms designed to improve consumer understanding of mortgage 
transactions (which is the subject of this final rule).\53\ In 
addition, the Dodd-Frank Act established other new standards concerning 
a wide range of mortgage lending practices, including compensation for 
mortgage originators \54\ and mortgage servicing.\55\ For additional 
information, see the discussion below in part II.F.
---------------------------------------------------------------------------

    \52\ Section 1411 of the Dodd-Frank Act, codified at 15 U.S.C. 
1639c.
    \53\ Section 1032(f) of the Dodd-Frank Act, codified at 12 
U.S.C. 5532(f). Sections 1098 and 1100A of the Dodd-Frank Act amend 
RESPA and TILA, respectively.
    \54\ Sections 1402 through 1405 of the Dodd-Frank Act, codified 
at 15 U.S.C. 1639b.
    \55\ Sections 1418, 1420, 1463, and 1464 of the Dodd-Frank Act, 
codified at 12 U.S.C. 2605; 15 U.S.C. 1638, 1638a, 1639f, & 1639g.
---------------------------------------------------------------------------

Size of the Current Mortgage Origination Market
    Even with the economic downturn and tightening of credit standards, 
approximately $1.9 trillion in mortgage loans were originated in 
2012.\56\ In exchange for an extension of mortgage credit, consumers 
promise to make regular mortgage payments and provide their home or 
real property as collateral. The overwhelming majority of homebuyers 
continue to use mortgage loans to finance at least some of the purchase 
price of their property. In 2012, 93.7 percent of all home purchases 
were financed with a mortgage credit transaction.\57\
---------------------------------------------------------------------------

    \56\ Moody's Analytics, Credit Forecast 2013 (2013) (Credit 
Forecast 2013), available at http://www.economy.com/default.asp 
(reflects first-lien mortgage loans) (data service accessibly only 
through paid subscription).
    \57\ Mortgage Markets Daily, New Houses by Type of Financing, 
available at http://www.mortgagenewsdaily.com/data/financing-type.aspx.
---------------------------------------------------------------------------

    Consumers may obtain mortgage credit to purchase a home, to 
refinance an existing mortgage, to access home equity, or to finance 
home improvement. Purchase loans and refinancings together produced 8.6 
million new first-lien mortgage loan originations in 2012.\58\ The 
proportion of loans that are for purchases as opposed to refinances 
varies with the interest rate environment and other market factors. In 
2012, 72 percent of the market was refinance transactions and 28 
percent was purchase loans, by volume.\59\ Historically the 
distribution has been more even. In 2000, refinances accounted for 44 
percent of the market while purchase loans comprised 56 percent; in 
2005, the two products were split evenly.\60\
---------------------------------------------------------------------------

    \58\ Credit Forecast 2013.
    \59\ Inside Mortgage Fin., Mortgage Originations by Product, in 
Inside Mortgage Finance Issue 2013:08 (Mar. 1, 2013) (Inside 
Mortgage Finance Newsletter).
    \60\ Inside Mortgage Fin., 2012 Mortgage Statistical Annual: 
Mortgage Originations by Product: 2000-2013 Data, at 17 (2012). 
These percentages are based on the dollar amount of the loans.
---------------------------------------------------------------------------

    With a home equity transaction, a homeowner uses his or her equity 
as collateral to secure consumer credit. The credit proceeds can be 
used, for example, to pay for home improvements. Home equity credit 
transactions and home equity lines of credit resulted in an additional 
$41 billion in mortgage loan originations in 2012.\61\
---------------------------------------------------------------------------

    \61\ Inside Mortgage Fin. Newsletter.
---------------------------------------------------------------------------

Shopping for Mortgage Loans
    When shopping for a mortgage loan, research has shown that 
consumers are most concerned about the interest rate and their monthly 
payment.\62\ Consumers may underestimate the possibility that interest 
rates and payments can increase later on, or they may not fully 
understand that this possibility exists. They also may not appreciate 
other costs that could arise later, such as prepayment penalties.\63\ 
This focus on short term costs while underestimating long term costs 
may result in consumers taking out mortgage loans that are more costly 
than they realize.\64\
---------------------------------------------------------------------------

    \62\ ICF Macro Int'l, Summary of Findings: Design and Testing of 
Truth in Lending Disclosures for Closed-End Mortgages, at 6 (July 
2009) (Macro 2009 Closed-End Report), available at http://www.federalreserve.gov/boarddocs/meetings/2009/20090723/Full%20Macro%20CE%20Report.pdf.; see also Kleimann Communication 
Group, Inc., Know Before You Owe: Evolution of the Integrated TILA-
RESPA Disclosures (July 2012), available at http://files.consumerfinance.gov/f/201207_cfpb_report_tila-respa-testing.pdf.
    \63\ James Lacko & Janis Pappalardo, Improving Consumer Mortgage 
Disclosures: An Empirical Assessment of Current and Prototype 
Disclosure Forms, at 26 (2007) (finding borrowers had misunderstood 
key loan features, including the overall cost of the loan, future 
payment amount, ability to refinance, payment of up-front points and 
fees, whether the monthly payment included escrow for taxes and 
insurance, any balloon payment, whether the interest rate had been 
locked, whether the rate was adjustable or fixed, and any prepayment 
penalty), available at http://www.ftc.gov/os/2007/06/P025505MortgageDisclosureReport.pdf.
    \64\ Oren Bar-Gill, The Law, Economics and Psychology of 
Subprime Mortgage Contracts, 94 Cornell L. Rev. 1073, 1079 (2009) 
(discussing how subprime borrowers may not fully understand the loan 
costs due to product complexity and deferral of loan costs into the 
future); id. at 1133 (explaining that borrower underestimation of 
mortgage loan cost distorts their decision to take out a loan, 
resulting in excessive borrowing), available at http://legalworkshop.org/wp-content/uploads/2009/07/cornell-a20090727-bar-gill.pdf.
---------------------------------------------------------------------------

    Research points to a relationship between consumer confusion about 
loan terms and conditions and an increased likelihood of adopting 
higher-cost, higher-risk mortgage loans in the years leading up to the 
mortgage crisis. A study of data from the 2001 Survey of Consumer 
Finances found that some adjustable rate mortgage loan borrowers, 
particularly those with below median income, underestimated or did not 
realize how much their interest rates could change.\65\ These findings 
are consistent with a 2006 Government Accountability Office study, 
which raised concerns that mortgage loan disclosure laws did not 
require specific disclosures for adjustable rate loans.\66\ This 
evidence suggests that borrowers who are not presented with clear, 
understandable information about their mortgage loan offer may lack an 
accurate understanding of the loan costs and risks.
---------------------------------------------------------------------------

    \65\ Brian K. Bucks & Karen M. Pence, Do Borrowers Know their 
Mortgage Terms?, J. of Urb. Econ. (2008), available at http://works.bepress.com/karen_pence/5.
    \66\ U.S. Gov't Accountability Office, GAO-06-1112T, Alternative 
Mortgage Products: Impact on Default Remains Unclear, but Disclosure 
of Risks to Borrowers Could Be Improved (2006), available at http://www.gao.gov/new.items/d061112t.pdf.
---------------------------------------------------------------------------

The Mortgage Origination Process
    Borrowers must go through a mortgage origination process to take 
out

[[Page 79735]]

a mortgage loan. During this process, borrowers have two significant 
factors to consider: the costs that they pay to close the loan, and the 
costs over the life of the loan. For a given consumer seeking a 
mortgage of a given size, both factors can vary significantly, making 
the home purchase or refinance especially complex. Furthermore, for 
purchase transactions and to a much lesser extent for refinances, there 
are many actors involved in a mortgage origination. In addition to the 
lender and the borrower, a single transaction may involve a seller, 
mortgage broker, real estate agent, settlement agent, appraiser, 
multiple insurance providers, and local government clerks' and tax 
offices. These actors typically charge fees or commissions for the 
services they provide. Borrowers learn about the loan costs and the 
sources of those costs through a variety of sources, including 
disclosures provided throughout the mortgage origination process.
    Loan Terms. The loan terms affect how the loan is to be repaid, 
including the type of loan product,\67\ the interest rate, the payment 
amount, and the length of the loan term. Among other things, the type 
of loan product determines whether the interest rate can change and, if 
so, when and by how much. A fixed rate loan sets the interest rate at 
origination, and the rate stays the same until the borrower pays off 
the loan. However, the interest rate on an adjustable rate loan is 
periodically reset based on an interest rate index. This shifting rate 
could change the borrower's monthly payment. Typically, an adjustable 
rate loan will combine both types of rates, so that the interest rate 
is fixed for a certain period of time before adjusting. For example, a 
5/1 adjustable rate loan would have a fixed interest rate for five 
years, and then adjust every year until the loan ends. Any changes in 
the interest rate after the first five years would change the 
borrower's payments. Adjustable rate mortgages accounted for 30 percent 
of mortgage loan volume in 2000, and reached a recent high of 50 
percent in 2004.\68\ By contrast, adjustable rate mortgages accounted 
for only 10 percent of the mortgage loan market in 2012 ; \69\ however, 
there is some early indication that adjustable rate mortgages are 
gaining market share again as interest rates for fixed rate mortgages 
are on the rise: the share of new mortgage applications for adjustable 
rate mortgages rose by 75% (from 4% to 7%) from March to August of 
2013.\70\
---------------------------------------------------------------------------

    \67\ Types of loan products include a fixed rate loan, 
adjustable rate loan, and interest-only loan.
    \68\ Inside Mortgage Fin., 2012 Mortgage Statistical Annual: 
Mortgage Originations by Product: 2000-2013 Data, at 17 (2012). 
These percentages are based on the dollar amount of the loans.
    \69\ Inside Mortgage Finance Newsletter.
    \70\ Compare Press Release, Mortgage Bankers Assoc., Mortgage 
Applications Decrease in Latest Weekly MBA Survey (Mar. 6, 2013), 
available at http://www.mbaa.org/NewsandMedia/PressCenter/83653.htm 
with Mortgage Bankers Assoc., Mortgage Applications Decrease in 
Latest Weekly MBA Survey (Aug. 28, 2013), available at http://www.mbaa.org/NewsandMedia/PressCenter/85466.htm.
---------------------------------------------------------------------------

    Borrowers are usually required to make payments on a monthly basis. 
These payments typically are calculated to pay off the entire loan 
balance by the time the loan term ends.\71\ The way a borrower's 
payments affect the amount of the loan balance over time is called 
amortization. Most borrowers take out fully amortizing loans, meaning 
that their payments are applied to both principal and interest so that 
the loan's principal balance will gradually decrease until it is 
completely paid off. The typical 30-year fixed rate loan has fully 
amortizing monthly payments that are calculated to pay off the loan in 
full over 30 years. However, loan amortization can take other forms. An 
interest only loan would require the borrower to make regular payments 
that cover interest but not principal. In some cases, these interest 
only payments end after a period of time (such as five years) and the 
borrower must begin making significantly higher payments that cover 
both interest and principal to amortize the loan over the remaining 
loan term. In other cases, the entire principal balance must be paid 
when the loan becomes due. Similarly, in a balloon loan, monthly 
payments are not fully amortizing, requiring the borrower to pay off a 
portion of the principal balance or the remaining principal balance in 
a larger ``balloon payment'' at specific points in the loan term or at 
the end of the loan term, respectively.
---------------------------------------------------------------------------

    \71\ Some loans may require a large final payment (or 
``balloon'' payment) in addition to monthly payments.
---------------------------------------------------------------------------

    The time period that the borrower has to repay the loan is known as 
the loan term, and is specified in the mortgage contract. Many loans 
are set for a term of 30 years. Depending on the amortization type of 
the loan, it will either be paid in full or have a balance due at the 
end of the term.
    Closing Costs. Closing costs are the costs of completing a mortgage 
transaction, including origination fees, appraisal fees, title 
insurance, taxes, settlement services, and homeowner's insurance. The 
borrower may pay an application or origination fee. Lenders generally 
also require an appraisal as part of the origination process in order 
to determine the value of the home. The appraisal helps the lender 
determine whether the home is valuable enough to act as collateral for 
the mortgage loan. The borrower is generally responsible for the 
appraisal fee, which may be paid at or before closing. Finally, lenders 
typically require borrowers to take out various insurance policies. 
Insurance protects the lender's collateral interest in the property. 
Homeowner's insurance protects against the risk that the home is 
damaged or destroyed, while title insurance protects the lender against 
the risk of claims against the borrower's legal right to the property. 
In addition, the borrower may be required to take out mortgage 
insurance which protects the lender in the event of default.
    Application. In order to obtain a mortgage loan, borrowers must 
first apply through a loan originator that accepts applications for 
mortgage loans. There are two different kinds of such loan originators. 
A retail originator works directly for a mortgage lender. A mortgage 
lender that employs retail originators could be a bank or credit union, 
or it could be a specialized mortgage finance company. Some of these 
mortgage lenders may sell the loan soon after it is originated to an 
investor, and they are referred to as correspondent lenders. The other 
kind of loan originator is a mortgage broker. Mortgage brokers work 
with many different lenders and facilitate the transaction for the 
borrower.
    A loan originator may help borrowers determine what kind of loan 
best suits their needs, and will collect their completed loan 
application. The application includes borrower credit and income 
information, along with information about the home to be purchased. A 
mortgage broker will pass this information on to a lender that will 
evaluate the borrower's credit risk using various factors, as described 
below. Consumers can apply to multiple lenders directly or through a 
mortgage broker in order to compare the loans that they are being 
offered. Once he or she has decided to move forward with the loan, the 
applicant notifies the loan originator or lender. An applicant can 
decide to pursue loans at multiple lenders at one time, but could incur 
fees in connection with each application. The loan originator will wait 
to receive notification from the consumer before taking more 
information from the borrower and giving the consumer's application to 
a loan underwriter.
    Mortgage Application Processing. A loan underwriter reviews the 
application and additional information provided by the borrower, and 
verifies certain information in connection with regulatory 
requirements. The

[[Page 79736]]

underwriter will assess whether the lender should take on the risk of 
making the mortgage loan. In order to make this decision, the 
underwriter considers whether the borrower can repay the loan, and 
whether the home is worth enough to act as collateral for the loan. If 
the underwriter finds that the borrower and the home qualify, the 
underwriter will approve the borrower's mortgage application.
    Depending on the loan terms, including the loan amount, as 
discussed above, lenders may require borrowers to obtain title 
insurance, homeowner's insurance, private mortgage insurance, and other 
services. The borrower may shop for certain closing services on his or 
her own.
    Closing. After being accepted for a mortgage loan, completing any 
closing requirements, and receiving necessary disclosures, the borrower 
can close on the loan. Multiple parties may participate at closing, 
including the borrower, the settlement agent or a notary, and attorneys 
for the borrower, the seller, and the lender.
    The settlement agent ensures that all the closing requirements are 
met, that all closing documents are completed in full, and that all 
fees are collected. The settlement agent makes sure that the borrower 
signs these closing documents, including a promissory note and the 
security instrument. This promissory note is evidence of the loan debt, 
and documents the borrower's promise to pay back the loan. It states 
the terms of the loan, including the interest rate and length. The 
security instrument, in the form of a mortgage, provides the home as 
collateral for the loan. A deed of trust is similar to a mortgage, 
except that a trustee is named to hold title to the property as 
security for the loan. The borrower receives title to the property 
after the loan is paid in full. Both a mortgage and deed of trust allow 
the lender to foreclose and sell the home if the borrower does not 
repay the loan.
    In the case of a purchase loan, the funds to purchase the home and 
pay closing costs are distributed at closing or shortly thereafter. In 
the case of a refinance loan, the funds from the new loan are used to 
pay off the old loan and, in some cases, to pay some or all of the 
closing costs, with any additional amount going to the borrower or to 
pay off other debts. Refinance loans also have closing costs, which may 
be paid by the borrower at closing or, in some cases, rolled into the 
loan amount. In home equity loans, the borrower's funds and the closing 
costs are provided upon closing. A settlement agent makes sure that all 
amounts are given to the appropriate parties. After the closing, the 
settlement agent records the deed at the local government registry.

B. RESPA and Regulation X

    Congress enacted the Real Estate Settlement Procedures Act of 1974 
based on findings that significant reforms in the real estate 
settlement process were needed to ensure that consumers are provided 
with greater and more timely information on the nature and costs of the 
residential real estate settlement process and are protected from 
unnecessarily high settlement charges caused by certain abusive 
practices that Congress found to have developed. 12 U.S.C. 2601(a). 
With respect to RESPA's disclosure requirements, the Act's purpose is 
to provide ``more effective advance disclosure to home buyers and 
sellers of settlement costs.'' 12 U.S.C. 2601(b)(1). In addition to 
providing consumers with appropriate disclosures, the purposes of RESPA 
include, but are not limited to, effecting certain changes in the 
settlement process for residential real estate that will result in (1) 
the elimination of kickbacks or referral fees that Congress found to 
increase unnecessarily the costs of certain settlement services; and 
(2) a reduction in the amounts home buyers are required to place in 
escrow accounts established to insure the payment of real estate taxes 
and insurance. 12 U.S.C. 2601(b). In 1990, Congress amended RESPA by 
adding a new section 6 covering persons responsible for servicing 
mortgage loans and amending statutory provisions related to mortgage 
servicers' administration of borrowers' escrow accounts.\72\
---------------------------------------------------------------------------

    \72\ Public Law 101-625, 104 Stat. 4079 (1990), sections 941-42.
---------------------------------------------------------------------------

    RESPA's disclosure requirements generally apply to ``settlement 
services'' for ``federally related mortgage loans.'' Under the statute, 
the term ``settlement services'' includes any service provided in 
connection with a real estate settlement. 12 U.S.C. 2602(3)(a). The 
term ``federally related mortgage loan'' is broadly defined to 
encompass virtually any purchase money or refinance loan, with the 
exception of temporary financing, that is ``secured by a first or 
subordinate lien on residential real property (including individual 
units of condominiums and cooperatives) designed principally for the 
occupancy of from one to four families . . .'' 12 U.S.C. 2602(1).
    Section 4 of RESPA requires that, in connection with a ``mortgage 
loan transaction,'' a disclosure form that includes a ``real estate 
settlement cost statement'' be prepared and made available to the 
borrower for inspection at or before settlement.\73\ 12 U.S.C. 2603. 
The law further requires that the form ``conspicuously and clearly 
itemize all charges imposed upon the borrower and all charges imposed 
upon the seller in connection with the settlement. . . .'' 12 U.S.C. 
2603(a). Section 5 of RESPA provides for a booklet to help consumers 
applying for federally related mortgage loans to understand the nature 
and costs of real estate settlement services. 12 U.S.C. 2604(a). 
Further, each lender must ``include with the booklet a good faith 
estimate of the amount or range of charges for specific settlement 
services the borrower is likely to incur in connection with the 
settlement . . .'' 12 U.S.C. 2604(c). The booklet and the good faith 
estimate must be provided not later than three business days after the 
lender receives an application, unless the lender denies the 
application for credit before the end of the three-business day period. 
12 U.S.C. 2604(d).
---------------------------------------------------------------------------

    \73\ Prior to the Dodd-Frank Act, section 4 of RESPA applied to 
``all transactions in the United States which involve federally 
related mortgage loans.'' 12 U.S.C. 2603 (2009). However, section 
1098 of the Dodd-Frank Act deleted the reference to ``federally 
related mortgage loan'' in this section and replaced it with 
``mortgage loan transactions.'' The regulation implementing this 
statutory requirement has historically applied and continues to 
apply to ``federally related mortgage loans.'' See 12 CFR 1024.8; 24 
CFR 3500.8 (2010).
---------------------------------------------------------------------------

    Historically, HUD's Regulation X, 24 CFR part 3500, has implemented 
RESPA. On March 14, 2008, after a 10-year investigatory process, HUD 
proposed extensive revisions to the good faith estimate and settlement 
forms required under Regulation X, as well as new accuracy standards 
with respect to the estimates provided to consumers. 73 FR 14030 (Mar. 
14, 2008) (HUD's 2008 RESPA Proposal).\74\ In November 2008, HUD 
finalized the proposed revisions in substantially the same form, 
including new standard good faith estimate and settlement forms, which 
lenders, mortgage brokers, and settlement agents were required to use 
beginning on January 1, 2010. 73 FR 68204 (Nov. 17, 2008) (HUD's 2008 
RESPA Final Rule). HUD's 2008 RESPA Final Rule implemented significant 
changes to the rules regarding the accuracy of the estimates provided 
to consumers. The final rule required redisclosure of the good faith 
estimate form when the actual costs increased beyond a certain 
percentage of the estimated amounts, and permitted such increases only 
under certain specified circumstances.

[[Page 79737]]

73 FR 68240 (amending 24 CFR 3500.7). HUD's 2008 RESPA Final Rule also 
included significant changes to the RESPA disclosure requirements, 
including prohibiting itemization of certain amounts and instead 
requiring the disclosure of aggregate settlement costs; adding loan 
terms, such as whether there is a prepayment penalty and the borrower's 
interest rate and monthly payment; and requiring use of a standard form 
for the good faith estimate. Id. The standard form was developed 
through consumer testing conducted by HUD, which included qualitative 
testing consisting of one-on-one cognitive interviews.\75\ HUD issued 
informal guidance regarding the final rule on its Web site, in the form 
of frequently asked questions \76\ (HUD RESPA FAQs) and bulletins \77\ 
(HUD RESPA Roundups).
---------------------------------------------------------------------------

    \74\ During this 10-year period, in 2002, HUD published a 
proposed rule revising the good faith estimate forms and accuracy 
standards for cost estimates, which it never finalized. 67 FR 49134 
(July 29, 2002).
    \75\ U.S. Dep't. of Hous. and Urban Dev., Summary Report: 
Consumer Testing of the Good Faith Estimate Form (GFE), prepared by 
Kleimann Communication Group, Inc. (2008), available at http://www.huduser.org/publications/pdf/Summary_Report_GFE.pdf.
    \76\ New RESPA Rule FAQs, available at http://portal.hud.gov/hudportal/documents/huddoc?id=resparulefaqs422010.pdf.
    \77\ RESPA Roundup Archive, available at http://portal.hud.gov/hudportal/HUD?src=/program_offices/housing/rmra/res/resroundup.
---------------------------------------------------------------------------

    The Dodd-Frank Act (discussed further in part I.D, below) 
transferred rulemaking authority for RESPA to the Bureau, effective 
July 21, 2011. See sections 1061 and 1098 of the Dodd-Frank Act. 
Pursuant to the Dodd-Frank Act and RESPA, as amended, the Bureau 
published for public comment an interim final rule establishing a new 
Regulation X, 12 CFR part 1024, implementing RESPA. 76 FR 78978 (Dec. 
20, 2011). This rule did not impose any new substantive obligations but 
did make certain technical, conforming, and stylistic changes to 
reflect the transfer of authority and certain other changes made by the 
Dodd-Frank Act. The Bureau's Regulation X took effect on December 30, 
2011. RESPA section 5's requirements of an information booklet and good 
faith estimate of settlement costs (RESPA GFE) are implemented in 
Regulation X by Sec. Sec.  1024.6 and 1024.7, respectively. RESPA 
section 4's requirement of a real estate settlement statement (RESPA 
settlement statement) is implemented by Sec.  1024.8.

C. TILA and Regulation Z

    Congress enacted the Truth in Lending Act based on findings that 
the informed use of credit resulting from consumers' awareness of the 
cost of credit would enhance economic stability and would strengthen 
competition among consumer credit providers. 15 U.S.C. 1601(a). One of 
the purposes of TILA is to provide meaningful disclosure of credit 
terms to enable consumers to compare credit terms available in the 
marketplace more readily and avoid the uninformed use of credit. Id. 
TILA's disclosures differ depending on whether credit is an open-end 
(revolving) plan or a closed-end (installment) loan. TILA also contains 
procedural and substantive protections for consumers.
    TILA's disclosure requirements apply to a ``consumer credit 
transaction'' extended by a ``creditor.'' Under the statute, consumer 
credit means ``the right granted by a creditor to a debtor to defer 
payment of debt or to incur debt and defer its payment,'' where ``the 
party to whom credit is offered or extended is a natural person, and 
the money, property, or services which are the subject of the 
transaction are primarily for personal, family, or household 
purposes.'' 15 U.S.C. 1602(f), (i). A creditor generally is ``a person 
who both (1) regularly extends . . . consumer credit which is payable 
by agreement in more than four installments or for which the payment of 
a finance charge is or may be required, and (2) is the person to whom 
the debt arising from the consumer credit transaction is initially 
payable on the face of the evidence of indebtedness or, if there is no 
such evidence of indebtedness, by agreement.'' 15 U.S.C. 1602(g).
    TILA section 128 requires that, for closed-end credit, the 
disclosures generally be made ``before the credit is extended.'' 15 
U.S.C. 1638(b)(1). For closed-end transactions secured by a consumer's 
dwelling and subject to RESPA, good faith estimates of the disclosures 
are required ``not later than three business days after the creditor 
receives the consumer's written application, which shall be at least 7 
business days before consummation of the transaction.'' 15 U.S.C. 
1638(b)(2)(A). Finally, if the annual percentage rate (APR) disclosed 
in this early TILA disclosure statement becomes inaccurate, ``the 
creditor shall furnish an additional, corrected statement to the 
borrower, not later than 3 business days before the date of 
consummation of the transaction.'' 15 U.S.C. 1638(b)(2)(D).
    Historically, the Board's Regulation Z has implemented TILA. 
Effective July 21, 2011, the Dodd-Frank Act generally transferred 
rulemaking authority for TILA to the Bureau.\78\ See Dodd-Frank Act 
sections 1061 and 1100A.
---------------------------------------------------------------------------

    \78\ Section 1029 of the Dodd-Frank Act excludes from this 
transfer of authority, subject to certain exceptions, any rulemaking 
authority over a motor vehicle dealer that is predominantly engaged 
in the sale and servicing of motor vehicles, the leasing and 
servicing of motor vehicles, or both. 12 U.S.C. 5519.
---------------------------------------------------------------------------

    TILA section 128's requirement that the disclosure statement be 
provided before the credit is extended (final TILA disclosure) is 
implemented in the Bureau's Regulation Z by Sec.  1026.17(b). The 
requirements that a good faith estimate of the disclosure be provided 
within three business days after application and at least seven 
business days prior to consummation (early TILA disclosure) and that a 
corrected disclosure be provided at least three business days before 
consummation (corrected TILA disclosure), as applicable, are 
implemented by Sec.  1026.19(a). The contents of the TILA disclosures, 
as required by TILA section 128, are implemented by Sec.  1026.18.
    On July 30, 2008, Congress enacted the Mortgage Disclosure 
Improvement Act of 2008 (MDIA).\79\ MDIA, in part, amended the timing 
requirements for the early TILA disclosures, requiring that these TILA 
disclosures be provided within three business days after an application 
for a dwelling-secured closed-end mortgage loan also subject to RESPA 
is received and before the consumer has paid any fee (other than a fee 
for obtaining the consumer's credit history).\80\
---------------------------------------------------------------------------

    \79\ MDIA is contained in sections 2501 through 2503 of the 
Housing and Economic Recovery Act of 2008, Public Law 110-289, 
enacted on July 30, 2008. MDIA was later amended by the Emergency 
Economic Stabilization Act of 2008, Public Law 110-343, enacted on 
October 3, 2008.
    \80\ MDIA codified some requirements previously adopted by the 
Board in a July 2008 final rule. 73 FR 44522 (July 30, 2008) (HOEPA 
Final Rule). To ease discussion, the description of MDIA's 
disclosure requirements includes the requirements of the 2008 HOEPA 
Final Rule.
---------------------------------------------------------------------------

    Creditors also must mail or deliver these early TILA disclosures at 
least seven business days before consummation and provide corrected 
disclosures if the disclosed APR changes in excess of a specified 
tolerance. The consumer must receive the corrected disclosures no later 
than three business days before consummation. The Board implemented 
these MDIA requirements in final rules published May 19, 2009, which 
became effective July 30, 2009, as required by the statute. 74 FR 23289 
(May 19, 2009) (MDIA Final Rule).
    MDIA also requires disclosure of payment examples if the loan's 
interest rate or payments can change, along with a statement that there 
is no guarantee the consumer will be able to refinance

[[Page 79738]]

the transaction in the future. Under the statute, these provisions of 
MDIA became effective on January 30, 2011. The Board worked to 
implement these provisions of MDIA at the same time that it was 
completing work on a several year review of Regulation Z's provisions 
concerning home-secured credit. As a result, the Board issued two sets 
of proposals approximately one year apart. On August 26, 2009, the 
Board published proposed amendments to Regulation Z containing 
comprehensive changes to the disclosures for closed-end credit secured 
by real property or a consumer's dwelling, including revisions to the 
format and content of the disclosures implementing MDIA's payment 
examples and refinance statement requirements, and several new 
requirements. 74 FR 43232 (Aug. 26, 2009) (2009 Closed-End Proposal).
    For the 2009 Closed-End Proposal, the Board developed several new 
model disclosure forms through consumer testing consisting of focus 
groups and one-on-one cognitive interviews.\81\ In addition, the 2009 
Closed-End Proposal proposed an extensive revision to the definition of 
``finance charge'' that would replace the ``some fees in, some fees 
out'' approach for determining the finance charge with a simpler, more 
inclusive ``all-in'' approach. The proposed definition of ``finance 
charge'' would include a fee or charge if it is (1) ``payable directly 
or indirectly by the consumer'' to whom credit is extended, and (2) 
``imposed directly or indirectly by the creditor as an incident to or a 
condition of the extension of credit.'' The finance charge would 
continue to exclude fees or charges paid in comparable cash 
transactions.\82\
---------------------------------------------------------------------------

    \81\ Bd. of Governors of the Fed. Reserve Sys., Summary of 
Findings: Design and Testing of Truth in Lending Disclosures for 
Closed-End Mortgages, prepared by Macro International, Inc. (July 
16, 2009) (Macro 2009 Closed-End Report), available at http://www.federalreserve.gov/boarddocs/meetings/2009/20090723/Full%20Macro%20CE%20Report.pdf.
    \82\ As discussed in the section-by-section analysis of the 
proposed amendments to Sec.  1026.4 in part VI, in response to 
concerns about the effect of an ``all-in'' finance charge on the 
higher-priced and HOEPA coverage thresholds in Sec. Sec.  1026.35 
and 1026.32, respectively, the Board proposed to implement a 
different ``transaction coverage rate'' for higher-priced coverage 
and to retain the existing ``some fees in, some fees out'' treatment 
of certain charges in the definition of points and fees for purposes 
of determining HOEPA coverage. See 76 FR 27390, 27411-12 (May 11, 
2011); 76 FR 11598, 11608-09 (Mar. 2, 2011); 75 FR 58539, 58636-38, 
58660-61 (Sept. 24, 2010).
---------------------------------------------------------------------------

    On September 24, 2010, the Board published an interim final rule to 
implement MDIA's payment example and refinance statement requirements. 
75 FR 58470 (Sept. 24, 2010) (MDIA Interim Rule). The Board's MDIA 
Interim Rule effectively adopted those aspects of the 2009 Closed-End 
Proposal that implemented these MDIA requirements, without adopting 
that proposal's other provisions, which were not subject to the same 
January 30, 2011 statutory effective date. The Board later issued 
another interim final rule to make certain clarifying changes to the 
provisions of the MDIA Interim Rule. 75 FR 81836 (Dec. 29, 2010).
    On September 24, 2010, the Board also proposed further amendments 
to Regulation Z regarding rescission rights, disclosure requirements in 
connection with modifications of existing mortgage loans, and 
disclosures and requirements for reverse mortgage loans. This proposal 
was the second stage of the comprehensive review conducted by the Board 
of TILA's rules for home-secured credit. 75 FR 58539 (Sept. 24, 2010) 
(2010 Mortgage Proposal).
    The Board also began, on September 24, 2010, issuing proposals 
implementing the Dodd-Frank Act, which had been signed on July 21, 
2010. The Board issued a proposed rule implementing section 1461 of the 
Dodd-Frank Act, which, in part, adjusts the rate threshold for 
determining whether escrow accounts are required for ``jumbo loans,'' 
whose principal amounts exceed the maximum eligible for purchase by 
Freddie Mac.\83\ 75 FR 58505 (Sept. 24, 2010). On March 2, 2011, the 
Board proposed amendments to Regulation Z implementing other 
requirements of sections 1461 and 1462 of the Dodd-Frank Act, which 
added new substantive and disclosure requirements regarding escrow 
accounts to TILA. 76 FR 11598 (March 2, 2011) (2011 Escrows Proposal). 
Sections 1461 and 1462 of the Dodd-Frank Act added section 129D to 
TILA, which substantially codifies requirements that the Board had 
previously adopted in Regulation Z regarding escrow requirements for 
higher-priced mortgage loans (including the revised rate threshold for 
``jumbo loans'' described above), but also adds disclosure 
requirements, and lengthens the period for which escrow accounts are 
required.
---------------------------------------------------------------------------

    \83\ The Board finalized this proposal effective April 1, 2011. 
76 FR 11319 (Mar. 2, 2011).
---------------------------------------------------------------------------

    On May 11, 2011, the Board proposed amendments to Regulation Z to 
implement section 1411 of the Dodd-Frank Act, which amends TILA to 
prohibit creditors from making mortgage loans without regard to the 
consumer's repayment ability. 76 FR 27390 (May 11, 2011) (2011 ATR 
Proposal). Section 1411 of the Dodd-Frank Act adds section 129C to 
TILA, codified at 15 U.S.C. 1639c, which prohibits a creditor from 
making a mortgage loan unless the creditor makes a reasonable and good 
faith determination, based on verified and documented information, that 
the consumer will have a reasonable ability to repay the loan, 
including any mortgage-related obligations (such as property taxes).
    As noted above, effective July 21, 2011, the Dodd-Frank Act 
generally transferred rulemaking authority for TILA to the Bureau. See 
Dodd-Frank Act sections 1061 and 1100A. Along with this authority, the 
Bureau assumed responsibility for the proposed rules discussed above. 
Pursuant to the Dodd-Frank Act and TILA, as amended, the Bureau 
published for public comment an interim final rule establishing a new 
Regulation Z, 12 CFR part 1026, implementing TILA (except with respect 
to persons excluded from the Bureau's rulemaking authority by section 
1029 of the Dodd-Frank Act). 76 FR 79768 (Dec. 22, 2011). This rule did 
not impose any new substantive obligations but did make certain 
technical, conforming, and stylistic changes to reflect the transfer of 
authority and certain other changes made by the Dodd-Frank Act. The 
Bureau's Regulation Z took effect on December 30, 2011.

D. The History of Integration Efforts

    For more than 30 years, TILA and RESPA have required creditors and 
settlement agents to give consumers who apply for and obtain a mortgage 
loan different but overlapping disclosure forms regarding the loan's 
terms and costs. This duplication has long been recognized as 
inefficient and confusing for both consumers and industry.
    Previous efforts to develop a combined TILA and RESPA disclosure 
form were fueled by the amount, complexity, and overlap of information 
in the disclosures. On September 30, 1996, Congress enacted the 
Economic Growth and Regulatory Paperwork Reduction Act of 1996,\84\ 
which required the Board and HUD to ``simplify and improve the 
disclosures applicable to the transactions under [TILA and RESPA], 
including the timing of the disclosures; and to provide a single format 
for such disclosures which will satisfy the requirements of each such 
Act with respect to such transactions.'' \85\ If the agencies found 
that legislative action might be necessary or appropriate to simplify 
and unify the disclosures, they were to submit a report to Congress 
containing recommendations for such action. In the

[[Page 79739]]

same legislation, Congress added exemption authority in TILA section 
105(f) for classes of transactions for which, in the determination of 
the Board (now the Bureau), coverage under all or part of TILA does not 
provide a meaningful benefit to consumers in the form of useful 
information or protection.\86\
---------------------------------------------------------------------------

    \84\ Public Law 104-208, 110 Stat. 3009 (1996).
    \85\ Id., section 2101.
    \86\ Id., section 2102(b).
---------------------------------------------------------------------------

    The Board and HUD did not propose an integrated disclosure pursuant 
to this legislation. Instead, in July 1998, the Board and HUD issued a 
``Joint Report to the Congress Concerning Reform to the Truth in 
Lending Act and the Real Estate Settlement Procedures Act'' (Board-HUD 
Joint Report).\87\ The Board-HUD Joint Report concluded that 
``meaningful change could come only through legislation'' and provided 
Congress with the Board's and HUD's recommendations for revising TILA 
and RESPA.
---------------------------------------------------------------------------

    \87\ Bd. of Governors of the Fed. Reserve Sys. And U.S. Dep't of 
Hous. and Urban Dev., Joint Report to the Congress Concerning Reform 
to the Truth in Lending Act and the Real Estate Settlement 
Procedures Act (1998), available at http://www.federalreserve.gov/boarddocs/rptcongress/tila.pdf.
---------------------------------------------------------------------------

    The agencies recommended a number of amendments to TILA and RESPA 
in the report, such as amendment of TILA's definition of ``finance 
charge'' to eliminate the ``some fees in, some fees out'' approach and 
instead include ``all costs the consumer is required to pay in order to 
close the loan, with limited exceptions''; the amendment of RESPA to 
require either the guaranteeing of closing costs on the GFE or 
estimates that are subject to an accuracy standard; and provision of 
the final TILA disclosure and settlement statement three days before 
closing, so that consumers would be able to study the disclosures in an 
unpressured environment.
    The Board-HUD Joint Report also recommended several additional 
changes to the TILA disclosures. In particular, the report recommended 
significant revisions to the ``Fed Box,'' which is the tabular 
disclosure provided to consumers in the early and final TILA 
disclosures under Regulation Z containing the APR, the finance charge 
(which is intended to be the cost of credit expressed as a dollar 
amount), the amount financed (which is intended to reflect the loan 
proceeds available to the consumer), and the total of payments (which 
is the dollar amount of the transaction over the loan term, including 
principal and finance charges).\88\ The report recommended, among other 
things, eliminating the amount financed from the disclosure for 
mortgage loans because it probably was not useful to consumers in 
understanding mortgage loans. The report also recommended adding 
disclosure of the total closing costs in the Fed Box, citing focus 
groups conducted by the Board in which participants stated that 
disclosure of the amount needed to close the loan would be useful.
---------------------------------------------------------------------------

    \88\ See, e.g., Regulation Z, 12 CFR part 1026 app. H-2 Loan 
Model Form.
---------------------------------------------------------------------------

    The Board-HUD Joint Report did not result in legislative action. 
Eleven years later, and four months before the revised RESPA 
disclosures under HUD's 2008 RESPA Final Rule were to become mandatory, 
the Board published the 2009 Closed-End Proposal, which proposed 
significant revisions to the TILA disclosures and stated that the Board 
would work with HUD towards integrating the two disclosure regimes. The 
proposal stated that ``the Board anticipates working with [HUD] to 
ensure that TILA and [RESPA] disclosures are compatible and 
complementary, including potentially developing a single disclosure 
form that creditors could use to combine the initial disclosures 
required under TILA and RESPA.'' \89\ The proposal stated that consumer 
testing would be used to ensure consumers could understand and use the 
combined disclosures. However, only ten months later in July 2010, the 
Dodd-Frank Act was enacted by Congress, which transferred rulemaking 
authority under both TILA and RESPA to the Bureau and, as described 
below in part II.E, under sections 1032(f), 1098, and 1100A, mandated 
that the Bureau establish a single disclosure scheme under TILA and 
RESPA and propose for public comment rules and model disclosures that 
integrate the TILA and RESPA disclosures by July 21, 2012. 12 U.S.C. 
2603(a), 5532(f); 15 U.S.C. 1604(b).
---------------------------------------------------------------------------

    \89\ 74 FR 43232, 43233.
---------------------------------------------------------------------------

    The Bureau issued proposed integrated disclosure forms and rules 
for public comment on July 9, 2012 (the TILA-RESPA Proposal or 
proposal).\90\ The TILA-RESPA Proposal provided for a bifurcated 
comment process. Comments regarding the proposed amendments to Sec.  
1026.1(c) were required to have been received on or before September 7, 
2012. For all other proposed amendments and comments pursuant to the 
Paperwork Reduction Act, comments were required to have been received 
on or before November 6, 2012.\91\ Now, more than 17 years after 
Congress first directed the Board and HUD to integrate the disclosures 
under TILA and RESPA, the Bureau publishes this final rule.
---------------------------------------------------------------------------

    \90\ See the Bureau's press release Consumer Financial 
Protection Bureau proposes ``Know Before You Owe'' mortgage forms 
(July 9, 2012), available at http://www.consumerfinance.gov/pressreleases/consumer-financial-protection-bureau-proposes-know-before-you-owe-mortgage-forms/; the Bureau's blog post Know Before 
You Owe: Introducing our proposed mortgage disclosure forms (July 9, 
2012), available at http://www.consumerfinance.gov/blog/know-before-you-owe-introducing-our-proposed-mortgage-disclosure-forms/.
    \91\ In its initial Federal Register notice, the Bureau also 
applied the September 7, 2012 deadline to comments on the proposed 
amendments to the definition of finance charge in Sec.  1026.4. On 
August 31, 2012, however, the Bureau issued a notice extending the 
deadline for such comments to November 6, 2012. See the Bureau's 
blog post, More time for comments on proposed changes to the 
definition of the finance charge (Aug. 31, 2012), available at 
http://www.consumerfinance.gov/blog/more-time-for-comments-on-proposed-changes-to-the-definition-of-the-finance-charge/. The 
extension was published in the Federal Register on September 6, 
2012. See 77 FR 54843 (Sept. 6, 2012). It did not change the comment 
period for any other aspects of the TILA-RESPA Proposal, which, as 
noted above, closed on November 6, 2012.
---------------------------------------------------------------------------

E. The Dodd-Frank Act

    As noted above, RESPA and TILA historically have been implemented 
by regulations of HUD and the Board, respectively, and the Dodd-Frank 
Act consolidated most of this rulemaking authority in the Bureau. In 
addition, the Dodd-Frank Act amended both statutes to mandate that the 
Bureau establish a single disclosure scheme for use by lenders or 
creditors in complying comprehensively with the disclosure requirements 
discussed above. Section 1098(2) of the Dodd-Frank Act amended RESPA 
section 4(a) to require that the Bureau ``publish a single, integrated 
disclosure for mortgage loan transactions (including real estate 
settlement cost statements) which includes the disclosure requirements 
of this section and section 5, in conjunction with the disclosure 
requirements of [TILA] that, taken together, may apply to a transaction 
that is subject to both or either provisions of law.'' 12 U.S.C. 
2603(a). Similarly, section 1100A(5) of the Dodd-Frank Act amended TILA 
section 105(b) to require that the Bureau ``publish a single, 
integrated disclosure for mortgage loan transactions (including real 
estate settlement cost statements) which includes the disclosure 
requirements of this title in conjunction with the disclosure 
requirements of [RESPA] that, taken together, may apply to a 
transaction that is subject to both or either provisions of law.'' 15 
U.S.C. 1604(b).
    The amendments to RESPA and TILA mandating a ``single, integrated 
disclosure'' are among numerous conforming amendments to existing

[[Page 79740]]

Federal laws found in subtitle H of the Consumer Financial Protection 
Act of 2010.\92\ Subtitle C of the Consumer Financial Protection Act, 
``Specific Bureau Authorities,'' codified at 12 U.S.C. chapter 53, 
subchapter V, part C, contains a similar provision. Specifically, 
section 1032(f) of the Dodd-Frank Act provides that, by July 21, 2012, 
the Bureau ``shall propose for public comment rules and model 
disclosures that combine the disclosures required under [TILA] and 
sections 4 and 5 of [RESPA] into a single, integrated disclosure for 
mortgage loan transactions covered by those laws, unless the Bureau 
determines that any proposal issued by the [Board] and [HUD] carries 
out the same purpose.'' 12 U.S.C. 5532(f). The Bureau issued the TILA-
RESPA Proposal pursuant to that mandate and the parallel mandates 
established by the conforming amendments to RESPA and TILA, discussed 
above.
---------------------------------------------------------------------------

    \92\ The Consumer Financial Protection Act is title X, ``Bureau 
of Consumer Financial Protection,'' of the Dodd-Frank Act, Public 
Law 111-203, 124 Stat. 1376 (2010), sections 1001-1100H. In the 
Consumer Financial Protection Act, Congress established the Bureau 
and its powers and authorities, transferred to the Bureau various 
existing functions of other agencies, mandated certain regulatory 
improvements, and prescribed other requirements and conforming 
amendments. Subtitle H, ``Conforming Amendments,'' is the last 
subtitle and consists of sections 1081-1100H. Certain titles of the 
Dodd-Frank Act are codified at 12 U.S.C. chapter 53. Subtitles A 
through G (but not H) of title X are codified at 12 U.S.C. chapter 
53, subchapter V, parts A through G. Thus, the Consumer Financial 
Protection Act is substantially codified at 12 U.S.C. 5481-5603.
---------------------------------------------------------------------------

F. Other Rulemakings

    In January 2013, the Bureau issued several other rulemakings 
relating to mortgage credit to implement requirements of the Dodd-Frank 
Act (the Title XIV Rulemakings), and throughout 2013 has issued 
proposed and final rules to amend the rulemakings based on public 
feedback:
    HOEPA: On January 10, 2013, the Bureau issued a final rule 
implementing certain Dodd-Frank Act requirements that expand 
protections for ``high-cost'' mortgage loans under HOEPA, pursuant to 
TILA sections 103(bb) and 129, as amended by Dodd-Frank Act sections 
1431 through 1433 (2013 HOEPA Final Rule).\93\ 15 U.S.C. 1602(bb) and 
1639. The rule implements certain Title XIV requirements concerning 
homeownership counseling, including a requirement that lenders provide 
lists of homeownership counselors to applicants for federally related 
mortgage loans, pursuant to RESPA section 5(c), as amended by Dodd-
Frank Act section 1450. 12 U.S.C. 2604(c). On November 8, 2013, the 
Bureau issued a final interpretive rule providing lenders with 
additional instructions on complying with the 2013 HOEPA Final Rule 
requirements.\94\
---------------------------------------------------------------------------

    \93\ 78 FR 6855 (Jan. 31, 2013), finalizing a proposal issued on 
July 9, 2012 (77 FR 54844 (Aug. 15, 2012) (2012 HOEPA Proposal)).
    \94\ Homeownership Counseling Organizations Lists Interpretive 
Rule (Nov. 8, 2013), available at http://files.consumerfinance.gov/f/201311_cfpb_interpretive-rule_homeownership-counseling-organizations-lists.pdf; see also Homeownership Counseling list 
requirements, CFPB Bulletin 2013-13 (Nov. 8, 2013), available at 
http://files.consumerfinance.gov/f/201311_cfpb_bulletin_homeownership-counseling-list-requirements.pdf.
---------------------------------------------------------------------------

    Servicing: On January 17, 2013, the Bureau issued the Real Estate 
Settlement Procedures Act (Regulation X) and Truth in Lending Act 
(Regulation Z) Mortgage Servicing Final Rules (2013 Mortgage Servicing 
Final Rules).\95\ These rules implement Dodd-Frank Act requirements 
regarding force-placed insurance, error resolution, information 
requests, and payment crediting, as well as requirements for mortgage 
loan periodic statements and adjustable rate mortgage reset 
disclosures, pursuant to sections 6 of RESPA and 128, 128A, 129F, and 
129G of TILA, as amended or established by Dodd-Frank Act sections 
1418, 1420, 1463, and 1464. 12 U.S.C. 2605; 15 U.S.C. 1638, 1638a, 
1639f, and 1639g. These rules establish: (1) Early intervention for 
troubled and delinquent borrowers, and loss mitigation procedures, 
pursuant to the Bureau's authority under section 6 of RESPA, as amended 
by Dodd-Frank Act section 1463; (2) obligations for mortgage servicers 
that the Bureau found to be appropriate to carry out the consumer 
protection purposes of RESPA, as well as its authority under section 
19(a) of RESPA to prescribe rules necessary to achieve the purposes of 
RESPA; and (3) requirements for general servicing standards, policies, 
and procedures and continuity of contact, pursuant to the Bureau's 
authority under section 19(a) of RESPA.
---------------------------------------------------------------------------

    \95\ 78 FR 10901 (Feb. 14, 2013), amending Regulation Z (2013 
TILA Mortgage Servicing Final Rule), and 78 FR 10695 (Feb. 14, 
2013), amending Regulation X (2013 RESPA Mortgage Servicing Final 
Rule). These rules finalized proposals issued on August 20, 2012 (77 
FR 57317 (Sept. 17, 2012), proposing amendments to Regulation Z 
(2012 TILA Mortgage Servicing Proposal) and 77 FR 57200 (Sept. 17, 
2012), proposing amendments to Regulation X (2012 RESPA Mortgage 
Servicing Proposal)).
---------------------------------------------------------------------------

    Loan Originator Compensation: On January 20, 2013, the Bureau 
issued a final rule to implement provisions of the Dodd-Frank Act 
requiring certain creditors and loan originators to meet certain duties 
of care, pursuant to TILA sections 129B and 129C as established by 
Dodd-Frank Act sections 1402, 1403, and 1414(a) (2013 Loan Originator 
Final Rule).\96\ 15 U.S.C. 1639b, 1639c. The rule sets forth certain 
qualification requirements; requires the establishment of certain 
compliance procedures by depository institutions; prohibits loan 
originators, creditors, and their affiliates from receiving 
compensation in various forms and from sources other than the consumer 
(with specified exceptions); and establishes restrictions on mandatory 
arbitration and the financing of single-premium credit insurance. On 
May 29, 2013, the Bureau issued a final rule delaying the effective 
date of a prohibition on creditors financing credit insurance premiums 
in connection with certain consumer credit transactions secured by a 
dwelling from its original effective date of June 1, 2013 to January 
10, 2014.\97\ The delay is meant to permit the Bureau to clarify the 
provision's applicability to transactions other than those in which a 
lump-sum premium is added to the loan amount at closing.
---------------------------------------------------------------------------

    \96\ 78 FR 11279 (Feb. 15, 2013), finalizing a proposal issued 
on August 17, 2012 (77 FR 55271 (Sept. 7, 2012) (2012 Loan 
Originator Proposal)).
    \97\ 78 FR 32547 (May 31, 2013), finalizing a proposal to delay 
the effective date of the prohibition issued May 7, 2013 (78 FR 
27308 (May 10, 2013)).
---------------------------------------------------------------------------

    Appraisals: On January 18, 2013, the Bureau, jointly with Federal 
prudential regulators and other Federal agencies (the Agencies), issued 
a final rule to implement Dodd-Frank Act requirements concerning 
appraisals for higher-risk mortgages, pursuant to TILA section 129H as 
established by Dodd-Frank Act section 1471 (2013 Interagency Appraisals 
Final Rule).\98\ 15 U.S.C. 1639h. For mortgages with an annual 
percentage rate that exceeds the average prime offer rate by a 
specified percentage, the final rule requires creditors to obtain an 
appraisal or appraisals meeting certain specified standards, provide 
applicants with a notification regarding the use of the appraisals, and 
give applicants a copy of the written appraisals used. On July 10, 
2013, the Agencies issued a proposal to amend the final rule to provide 
exemptions for: (1) Transactions secured by existing manufactured homes 
and not land; (2) certain ``streamlined'' refinancings; and (3) 
transactions of $25,000 or less.\99\
---------------------------------------------------------------------------

    \98\ 78 FR 10637 (Feb. 13, 2013), finalizing a proposal issued 
on September 5, 2012 (77 FR 54721 (Sept. 9, 2012) (2012 Interagency 
Appraisals Proposal)).
    \99\ 78 FR 48548 (Aug. 8, 2013).
---------------------------------------------------------------------------

    On the same day it issued the 2013 Interagency Appraisal Final 
Rule, the Bureau issued a final rule to implement section 701(e) of the 
Equal Credit Opportunity Act (ECOA), as amended

[[Page 79741]]

by Dodd-Frank Act section 1474 (2013 ECOA Appraisals Final Rule). 15 
U.S.C. 1691(e). That rule requires that creditors provide applicants 
with a free copy of written appraisals and valuations developed in 
connection with applications for loans secured by a first lien on a 
dwelling and notify applicants in writing that copies of appraisals 
will be provided to them promptly.
    Ability to Repay: On January 10, 2013, the Bureau finalized a 
proposal issued by the Board to implement provisions of the Dodd-Frank 
Act (1) requiring creditors to determine that a consumer has a 
reasonable ability to repay covered mortgage loans and establishing 
standards for compliance, and (2) establishing certain limitations on 
prepayment penalties, pursuant to TILA sections 129C as established by 
Dodd-Frank Act sections 1411, 1412, and 1414 (2013 ATR Final 
Rule).\100\ 15 U.S.C. 1639c. Concurrent with the issuance of the 2013 
ATR Final Rule, the Bureau issued a concurrent proposed rule amending 
certain aspects of the 2013 ATR Final Rule (2013 ATR Concurrent 
Proposal), which proposal was finalized on May 29, 2013 (May 2013 ATR 
Final Rule).\101\ That rule provides exemptions for certain nonprofit 
creditors and certain homeownership stabilization programs, provides an 
additional definition of a ``qualified mortgage'' for certain loans 
made and held in portfolio by small creditors, and modifies the 
requirements regarding the inclusion of loan originator compensation in 
the points and fees calculation.
---------------------------------------------------------------------------

    \100\ 78 FR 6407 (Jan. 30, 2013), finalizing a proposal issued 
by the Board on May 11, 2011 (76 FR 27389 (May 11, 2011) (2011 Board 
Ability to Repay Proposal)).
    \101\ 78 FR 35429 (Jun. 12, 2013), finalizing the concurrent 
proposal issued on January 10, 2013 (78 FR 6622 (Jan. 30, 2013)).
---------------------------------------------------------------------------

    Escrows: On January 10, 2013, the Bureau finalized a proposal 
issued by the Board to implement provisions of the Dodd-Frank Act that 
require escrow accounts to be established for higher-priced mortgage 
loans and to create an exemption for certain loans held by creditors 
operating predominantly in rural or underserved areas, pursuant to TILA 
section 129D as established by Dodd-Frank Act section 1461 (2013 
Escrows Final Rule).\102\ 15 U.S.C. 1639d. On April 18, 2013, the 
Bureau published a proposal setting forth certain clarifying and 
technical amendments to the 2013 Escrows Final Rule, including a 
clarification of how to determine whether a county is considered 
``rural'' or ``underserved.'' \103\ The final rule was published on May 
23, 2013.\104\
---------------------------------------------------------------------------

    \102\ 78 FR 4726 (Jan. 22, 2013), finalizing a proposal issued 
by the Board on March 2, 2011 (76 FR 11597 (Mar. 2, 2011)).
    \103\ 78 FR 23171 (Apr. 18, 2013).
    \104\ 78 FR 30739 (May 23, 2013).
---------------------------------------------------------------------------

    In addition to the foregoing, the Bureau proposed and finalized 
three additional sets of amendments to the Title XIV Rulemakings. The 
first set of amendments, proposed in April 2013 and published on July 
24, 2013, clarify, correct, or amend provisions on the relation to 
State law of Regulation X's servicing provisions; implementation dates 
for adjustable rate mortgage servicing; exclusions from requirements on 
higher-priced mortgage loans; the small servicer exemption from certain 
servicing rules; the use of government-sponsored enterprise and Federal 
agency purchase, guarantee or insurance eligibility for determining 
qualified mortgage status; and the determination of debt and income for 
purposes of originating qualified mortgages.\105\
---------------------------------------------------------------------------

    \105\ 78 FR 44685 (July 24, 2013), finalizing a proposal issued 
on April 19, 2013 (78 FR 25638 (May 2, 2013)).
---------------------------------------------------------------------------

    The second set of amendments, proposed on June 21, 2013, was 
published on October 1, 2013.\106\ These amendments focus primarily on 
clarifying, revising, or amending provisions on loss mitigation 
procedures under Regulation X's servicing provisions; amounts counted 
as loan originator compensation to retailers of manufactured homes and 
their employees for purposes of applying points and fees thresholds 
under the Home Ownership and Equity Protection Act and the Ability-to-
Repay rules in Regulation Z; exemptions available to creditors that 
operate predominantly in ``rural or underserved'' areas for various 
purposes under the mortgage regulations; application of the loan 
originator compensation rules to bank tellers and similar staff; and 
the prohibition on creditor-financed credit insurance. The amendments 
also adjusted the effective dates for certain provisions of the loan 
originator compensation rules, and incorporated technical and wording 
changes for clarification purposes to Regulations B, X, and Z.
---------------------------------------------------------------------------

    \106\ 78 FR 60382 (Oct. 1, 2013); 78 FR 39902 (Jul. 2, 2013).
---------------------------------------------------------------------------

    The third set of amendments was published on October 23, 2013.\107\ 
These amendments focus primarily on clarifying the specific disclosures 
that must be provided before counseling for high-cost mortgages can 
occur, and proper compliance regarding servicing requirements when a 
consumer is in bankruptcy or sends a cease communication request under 
the Fair Debt Collection Practices Act. The rule also makes technical 
corrections to provisions of the other Title XIV Rulemakings.
---------------------------------------------------------------------------

    \107\ 78 FR 62993 (Oct. 23, 2013).
---------------------------------------------------------------------------

    The Bureau regards the foregoing rulemakings as components of a 
larger undertaking; many of them intersect with one or more of the 
others. Accordingly, the Bureau has carefully coordinated the 
development and implementation of the proposals and final rules 
identified above in an effort to facilitate compliance. As an example, 
in developing the TILA-RESPA Proposal and Final Rule, the Bureau took 
care to ensure common terms, such as ``prepayment penalty'' and 
``balloon payment'' are defined consistent with the Title XIV 
Rulemakings, as described in more detail below. In addition, each 
rulemaking includes regulatory provisions to implement the various 
Dodd-Frank Act mandates and to ensure that the overall undertaking is 
accomplished efficiently and that it ultimately yields a regulatory 
scheme for mortgage credit that achieves the statutory purposes set 
forth by Congress, while avoiding unnecessary burdens on industry.

III. Summary of the Rulemaking Process

    As noted above, the Dodd-Frank Act established two goals for this 
rulemaking: ``to facilitate compliance with the disclosure requirements 
of [TILA and RESPA]'' and ``to aid the borrower or lessee in 
understanding the transaction by utilizing readily understandable 
language to simplify the technical nature of the disclosures.'' Dodd-
Frank Act sections 1098, 1100A; 12 U.S.C. 2603(a), 15 U.S.C. 1604(b). 
Further, the Bureau has a specific mandate and authority from Congress 
to promote consumer comprehension of financial transactions through 
clear disclosures. Section 1021(a) of the Dodd-Frank Act directs the 
Bureau to ``implement . . . Federal consumer financial law consistently 
for the purpose of ensuring,'' inter alia, that ``markets for consumer 
financial products and services are fair, transparent, and 
competitive.'' 12 U.S.C. 5511(a). Section 1021(b) of the Dodd-Frank 
Act, in turn, authorizes the Bureau as part of its core mission to 
exercise its authority to ensure that, with respect to consumer 
financial products and services, ``consumers are provided with timely 
and understandable information to make responsible decisions about 
financial transactions.'' 12 U.S.C. 5511(b). Consistent with these 
goals and in preparation for proposing integrated rules and forms, the 
Bureau conducted

[[Page 79742]]

a multifaceted information gathering campaign, including researching 
how consumers interact with and understand information, testing of 
prototype forms, developing interactive online tools to gather public 
feedback, and hosting roundtable discussions, teleconferences, and 
meetings with consumer advocacy groups, industry stakeholders, and 
other government agencies.

A. Early Stakeholder Outreach & Prototype Form Design

    In September 2010, the Bureau began meeting with consumer 
advocates, other banking agencies, community banks, credit unions, 
settlement agents, and other industry representatives. This outreach 
helped the Bureau better understand the issues that consumers and 
industry face when they use the current TILA and RESPA disclosures. For 
example, as part of this outreach, in December 2010, the Bureau held a 
mortgage disclosure symposium that brought together consumer advocacy 
groups, industry representatives, marketing professionals, designers, 
and other interested parties to discuss various possible concepts and 
approaches for integrating the disclosures.
    At the same time, the Bureau began to research how consumers 
interact with and understand information. Given the complexities and 
variability of mortgage loan transactions and their underlying real 
estate transactions, the Bureau understood that the integrated 
disclosures would have to convey a large amount of complex and 
technical information to consumers in a manner that they could use and 
understand. Considering that, in January 2011, the Bureau contracted 
with a communication, design, consumer testing, and research firm, 
Kleimann Communication Group, Inc. (Kleimann), which specializes in 
consumer financial disclosures. Kleimann has been hired by other 
Federal agencies to perform similar design and qualitative testing work 
in connection with other financial disclosure forms. For example, the 
Federal Trade Commission and the Federal banking agencies contracted 
with Kleimann to design and conduct consumer testing for revised model 
privacy disclosures.\108\ Also, HUD contracted with Kleimann to assist 
in the design and consumer testing for its revised RESPA GFE and RESPA 
settlement statement forms.\109\
---------------------------------------------------------------------------

    \108\ 72 FR 14940, 14944 (Mar. 29, 2007); 74 FR 62890, 62893 
(Dec. 1, 2009).
    \109\ 73 FR 14030, 14043 (Mar. 14, 2008); 73 FR 68204, 68265 
(Nov. 17, 2008).
---------------------------------------------------------------------------

    The Bureau and Kleimann reviewed relevant research and the work of 
other Federal financial services regulatory agencies to inform the 
Bureau's design of the prototype integrated disclosures. One of the 
findings of this research was that there is a significant risk to 
consumers of experiencing ``information overload'' when the volume or 
complexity of information detracts from the consumer decision-making 
processes. ``Information overload'' has often been cited as a problem 
with financial disclosures.\110\ Researchers suggest that there should 
be a balance between the types and amount of information in the 
disclosures, because too much information has the potential to detract 
from consumers' decision-making processes.\111\ In its 2009 Closed-End 
Proposal, the Board cited a reduction in ``information overload'' as 
one of the potential benefits of its plan to harmonize the TILA and 
RESPA disclosures in collaboration with HUD.\112\ The Board's consumer 
testing in connection with its 2009 Closed-End Proposal found that when 
participants were asked what was most difficult about their mortgage 
experience, the most frequent answer was the amount of paperwork.\113\ 
HUD also stated that one of its guiding principles for HUD's 2008 RESPA 
Proposal was that ``the [mortgage loan settlement process] can be 
improved with simplification of disclosures and better borrower 
information,'' the complexity of which caused many problems with the 
process.\114\
---------------------------------------------------------------------------

    \110\ See e.g., Debra Pogrund Stark and Jessica M. Choplin, A 
Cognitive and Social Psychological Analysis of Disclosure Laws and 
Call for Mortgage Counseling to Prevent Predatory Lending, 16 Psych. 
Pub. Pol. and L. 85, 96 (2010); Paula J. Dalley, The Use and Misuse 
of Disclosure as a Regulatory System, 34 Fla. St. U.L. Rev. 1089, 
1115 (2007); Patricia A. McCoy, The Middle-Class Crunch: Rethinking 
Disclosure in a World of Risk-Based Pricing, 44 Harv. J. on Legis. 
123, 133 (2007); Lauren E. Willis, Decisionmaking and The Limits of 
Disclosure: The Problem of Predatory Lending: Price, 65 Md. L. Rev. 
707, 766 (2006); Troy A. Paredes, After the Sarbanes-Oxley Act: The 
Future Disclosure System: Blinded by the Light: Information Overload 
and its Consequences for Securities Regulation, 81 Wash. U. L. Q. 
417 (2003); William N. Eskridge, Jr., One Hundred Years of 
Ineptitude: The Need for Mortgage Rules Consonant with the Economic 
and Psychological Dynamics of the Home Sale and Loan Transaction, 70 
Va. L. Rev. 1083, 1133 (1984).
    \111\ John Kozup & Jeanne M. Hogarth, Financial Literacy, Public 
Policy, and Consumers' Self-Protection-More Questions, Fewer 
Answers, 42 Journal of Consumer Affairs 2, 127 (2008).
    \112\ 74 FR 43232, 43234.
    \113\ See Macro 2009 Closed-End Report at 19. For additional 
discussion regarding information overload, see the section-by-
section analysis of proposed Sec.  1026.37(l).
    \114\ 73 FR 14030, 14031.
---------------------------------------------------------------------------

    The potential for ``information overload'' was also cited by 
Congress as one of the reasons it amended the TILA disclosures in the 
Truth-in-Lending Simplification and Reform Act of 1980.\115\ According 
to the Senate Committee on Banking, Housing and Urban Affairs, this 
legislation arose in part because:
---------------------------------------------------------------------------

    \115\ Public Law 96-221, 94 Stat 132 (1980).

    During its hearings the Consumer Affairs Subcommittee heard 
testimony from a leading psychologist who has studied the problem of 
`informational overload.' The Subcommittee learned that judging from 
consumer tests in other areas, the typical disclosure statement 
utilized today by creditors is not an effective communication 
device. Most disclosure statements are lengthy, written in 
legalistic fine print, and have essential Truth in Lending 
disclosures scattered among various contractual terms. The result is 
a piece of paper which appears to be `just another legal document' 
instead of the simple, concise disclosure form Congress 
intended.\116\
---------------------------------------------------------------------------

    \116\ Public Law 96-221, Depository Institutions Deregulation 
and Monetary Control Act of 1980, Senate Report No. 96073 (Apr. 24, 
1979).

    Based on this research, the Bureau is particularly mindful of the 
risk of information overload, especially considering the large volume 
of other information and paperwork consumers are required to process 
throughout the mortgage loan and real estate transaction.
    The Bureau began development of the integrated disclosures with 
certain design objectives. Considering that the quantity of information 
both on the disclosures and in other paperwork throughout the mortgage 
loan and real estate transaction may increase the risk of information 
overload, the Bureau began development of the integrated disclosures 
with the objective of creating a graphic design that used as few words 
as possible when presenting the key loan and cost information. The 
Bureau's purpose for such a design was to make the information readily 
visible so that consumers could quickly and easily find the information 
they were seeking, without being confronted with large amounts of text. 
Accordingly, the Bureau decided to limit the content of the disclosures 
to loan terms, cost information, and certain textual disclosures and to 
exclude educational material. The Bureau understood that consumers 
would receive educational materials required under applicable law, such 
as the Special Information Booklet required by section 5 of RESPA, 
through other means. In addition, the Bureau anticipated that it would 
provide additional educational information and tools on its Web site 
and place a Web site link on the integrated disclosures directing 
consumers to that site, which

[[Page 79743]]

would obviate the need to place educational material directly on the 
disclosures.
    The Bureau believed and continues to believe that the design should 
highlight on the first page the most important loan information that 
consumers readily understand and use to evaluate and compare loans, 
placing more detailed and technical information later in the 
disclosure. With such a design, the first page could potentially be 
used by some consumers as a one-page mortgage shopping sheet. In 
addition, the Bureau believed the design should use plain language and 
limit the use of technical, statutory, or complex financial terms 
wherever possible.
    The Bureau believes these design objectives best satisfy the 
purposes of the integrated disclosures set forth by Dodd-Frank Act 
sections 1098 and 1100A, as well as the Bureau's mandate under Dodd-
Frank Act section 1021(b) to ensure that consumers are provided with 
``understandable information'' to enable them to make responsible 
decisions about financial transactions.
    From January through May 2011, the Bureau and Kleimann developed a 
plan to design integrated disclosure prototypes and conduct qualitative 
usability testing, consisting of one-on-one cognitive interviews. The 
Bureau and Kleimann worked collaboratively on developing the 
qualitative testing plan and several prototype forms for the disclosure 
to be provided in connection with a consumer's application integrating 
the RESPA GFE and the early TILA disclosure (the Loan Estimate). The 
Bureau planned to develop the disclosure provided in connection with 
the closing of the mortgage loan that integrates the RESPA settlement 
statement and the final TILA disclosure (the Closing Disclosure) after 
development and testing of the prototype design for the Loan Estimate. 
Although qualitative testing is commonly used by Federal agencies to 
evaluate the effectiveness of disclosures prior to issuing a proposal, 
the qualitative testing plan developed by the Bureau and Kleimann was 
unique in that the Bureau conducted qualitative testing with industry 
participants as well as consumers. Each round of qualitative testing 
included at least two industry participants, including lenders from 
several different types of depository institutions (including credit 
unions and community banks) and non-depository institutions (mortgage 
companies and mortgage brokers) and, for the Closing Disclosure, 
settlement agents.

B. Pre-Proposal Prototype Testing and the Know Before You Owe (KBYO) 
Project

    In May 2011, the Bureau selected two initial prototype designs of 
the Loan Estimate, which were used in qualitative testing interviews in 
Baltimore, Maryland. In these interviews, consumers were asked to work 
through the prototype forms while conveying their impressions, and were 
also asked a series of questions designed to assess whether the forms 
presented information in a format that enabled them to understand and 
compare the mortgage loans presented to them. These questions ranged 
from the highly specific (e.g., asking whether the consumer could 
identify the loan payment in year 10 of a 30-year, adjustable rate 
loan) to the highly general (e.g., asking consumers to choose the loan 
that best met their needs).\117\ Industry participants were asked to 
use the prototype forms to explain mortgage loans as they would to a 
consumer and to identify implementation issues and areas for 
improvement.
---------------------------------------------------------------------------

    \117\ The consumers who participated in these interviews had 
varying levels of education (from consumers with less than a high 
school education to consumers with graduate degrees) and varying 
levels of experience with the home buying and mortgage loan process 
(from consumers who never owned a home to consumers who had been 
through the home buying and mortgage loan process before).
---------------------------------------------------------------------------

    At the same time, to supplement its qualitative testing, the Bureau 
launched an initiative, which it titled ``Know Before You Owe,'' to 
obtain additional public feedback on the prototype disclosure 
forms.\118\ The Bureau believed this would provide an opportunity to 
obtain a large amount of feedback from a broad base of consumers and 
industry respondents around the country. This initiative consisted of 
either publishing and obtaining feedback on the prototype designs 
through an interactive tool on the Bureau's Web site or posting the 
prototypes to the Bureau's blog on its Web site and providing an 
opportunity for the public to email feedback directly to the Bureau. 
Individual consumers, loan officers, mortgage brokers, settlement 
agents, and others provided feedback based on their own experiences 
with the mortgage loan process by commenting on specific sections of 
the form, prioritizing information presented on the form, and/or 
identifying additional information that should be included.\119\
---------------------------------------------------------------------------

    \118\ See http://www.consumerfinance.gov/knowbeforeyouowe/.
    \119\ Examples of consumer and industry responses to the 
prototypes of the disclosures can be seen in the CFPB blog, 
including at: www.consumerfinance.gov/know-before-you-owe-go; 
www.consumerfinance.gov/13000-lessons-learned; and 
www.consumerfinance.gov/know-before-you-owe-its-closing-time.
---------------------------------------------------------------------------

    From May to October 2011, Kleimann and the Bureau conducted a 
series of five rounds of qualitative testing of different iterations of 
the Loan Estimate with consumer and industry participants. In addition 
to Baltimore, Maryland, this testing was conducted in Los Angeles, 
California; Chicago, Illinois; Springfield, Massachusetts; and 
Albuquerque, New Mexico. Each round focused on a different aspect of 
the integrated disclosure, such as the overall design, the disclosure 
of closing costs, and the disclosure of loan payments over the term of 
the loan. The overall goal of this qualitative testing was to ensure 
that the forms enabled consumers to understand and compare the terms 
and costs of the loan.
    After each round of testing, Kleimann analyzed and reported to the 
Bureau on the results of the testing. Based on these results and the 
supplemental feedback received through the KBYO process, the Bureau 
would revise the prototype disclosure forms for the subsequent rounds 
of testing. This iterative process helped the Bureau develop forms that 
better enable consumers to understand and compare mortgage loans and 
assist industry in complying with the law. For a detailed discussion of 
this testing, see the report prepared by Kleimann, Know Before You Owe: 
Evolution of the Integrated TILA-RESPA Disclosures (Kleimann Testing 
Report), which the Bureau posted on its Web site and on Regulations.gov 
in connection with the TILA-RESPA Proposal.\120\
---------------------------------------------------------------------------

    \120\ Kleimann Communication Group, Inc., Know Before You Owe: 
Evolution of the Integrated TILA-RESPA Disclosures (July 2012), 
available at http://files.consumerfinance.gov/f/201207_cfpb_report_tila-respa-testing.pdf.
---------------------------------------------------------------------------

    After completion of the qualitative testing that focused solely on 
the Loan Estimate, the Bureau and Kleimann began work on the prototype 
designs for the Closing Disclosure. From November 2011 through March 
2012, the Bureau and Kleimann conducted five rounds of qualitative 
testing of different iterations of the Closing Disclosure with consumer 
and industry participants. This testing was conducted in five different 
cities across the country: Des Moines, Iowa; Birmingham, Alabama; 
Philadelphia, Pennsylvania; Austin, Texas; and Baltimore, Maryland.
    Similar to the qualitative testing of the Loan Estimate, the Bureau 
revised the prototype Closing Disclosure forms after each round based 
on the results Kleimann provided to the Bureau and

[[Page 79744]]

the supplemental feedback received from the KBYO process. The Bureau 
focused on several aspects of the prototypes during each round, such as 
the settlement disclosures adapted from the HUD-1, new disclosure items 
required under title XIV of the Dodd-Frank Act, and tables to help 
identify changes in the information disclosed in the initial Loan 
Estimate. The overall goal of the qualitative testing of the Closing 
Disclosure was to ensure that the forms enabled consumers to understand 
their actual terms and costs, and to compare the Closing Disclosure 
with the Loan Estimate to identify changes. Accordingly, several rounds 
included testing of different iterations of the Loan Estimate with the 
Closing Disclosure.
    Overall, the Bureau performed qualitative testing with 92 consumer 
participants and 22 industry participants, for a total of 114 
participants. In addition, through the Bureau's KBYO initiative, the 
Bureau received over 150,000 visits to the KBYO Web site and over 
27,000 public comments and emails about the prototype disclosures.

C. Proposal Stakeholder Outreach

    While developing the proposed forms and rules to integrate the 
disclosures, and throughout its qualitative testing of the prototype 
disclosure forms, the Bureau continued to conduct extensive outreach to 
consumer advocacy groups, other regulatory agencies, and industry 
representatives and trade associations. The Bureau held meetings with 
individual stakeholders upon request, and also invited stakeholders to 
meetings in which individual views of each stakeholder could be heard. 
The Bureau conducted these meetings with a wide range of stakeholders 
that may be affected by the integrated disclosures, even if not 
directly regulated by the final rule. The meetings included community 
banks, credit unions, thrifts, mortgage companies, mortgage brokers, 
settlement agents, settlement service providers, software providers, 
appraisers, not-for-profit consumer and housing groups, and government 
and quasi-governmental agencies. Many of the persons attending these 
meetings represented small business entities from different parts of 
the country. In addition to these meetings, after each round of 
qualitative testing, in response to the Bureau's posting of the 
prototype integrated disclosures on the KBYO Web site, the Bureau 
received numerous letters from individuals, consumer advocates, 
financial services providers, and trade associations, which provided 
the Bureau with additional feedback on the prototype disclosure forms.
    In preparing the TILA-RESPA Proposal, the Bureau also considered 
comments provided in response to its December 2011 request for 
information regarding streamlining of regulations for which rulemaking 
authority was inherited by the CFPB from other Federal agencies, 
including TILA and RESPA. 76 FR 75825 (Dec. 5, 2011) (2011 Streamlining 
RFI). That request for information specifically sought public comment 
on provisions of the inherited regulations that the Bureau should make 
the highest priority for updating, modifying, or eliminating because 
they are outdated, unduly burdensome, or unnecessary, and sought 
suggestions for practical measures to make compliance with the 
regulations easier. Several commenters requested that the Bureau 
reconcile inconsistencies in the terminology and requirements of 
Regulations X and Z. Wherever possible, the Bureau proposed to do so in 
the TILA-RESPA Proposal. In addition, other relevant comments received 
in response to the 2011 Streamlining RFI were addressed in the TILA-
RESPA Proposal and are addressed below.

D. Small Business Review Panel

    In February 2012, the Bureau convened a Small Business Review Panel 
with the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) and the Administrator of the Office of Information 
and Regulatory Affairs within the Office of Management and Budget 
(OMB).\121\ As part of this process, the Bureau prepared an outline of 
the proposals then under consideration and the alternatives considered 
(Small Business Review Panel Outline), which it posted on its Web site 
for review by the general public as well as the small entities 
participating in the panel process.\122\ The Small Business Review 
Panel gathered information from representatives of small lenders, 
mortgage brokers, settlement agents, and not-for-profit organizations 
and made findings and recommendations regarding the potential 
compliance costs and other impacts of the proposed rule on those 
entities. These findings and recommendations are set forth in the Small 
Business Review Panel Report, which will be made part of the 
administrative record in this rulemaking.\123\ The Bureau considered 
these findings and recommendations in preparing the TILA-RESPA Proposal 
and addressed certain specific examples in the proposal, as well as 
below in this final rule.
---------------------------------------------------------------------------

    \121\ The Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA) requires the Bureau to convene a Small Business Review 
Panel before proposing a rule that may have a substantial economic 
impact on a significant number of small entities. See Public Law. 
104-121, tit. II, 110 Stat. 847, 857 (1996) (as amended by Public 
Law 110-28, sec. 8302 (2007)).
    \122\ Available at http://www.consumerfinance.gov/blog/sbrefa-small-providers-and-mortgage-disclosure/.
    \123\ Final Report of the Small Business Review Panel on CFPB's 
Proposals Under Consideration for Integration of TILA and RESPA 
Mortgage Disclosure Requirements (Apr. 23, 2012), available at 
http://files.consumerfinance.gov/f/201207_cfpb_report_tila-respa-sbrefa-feedback.pdf.
---------------------------------------------------------------------------

    In addition, the Bureau held roundtable meetings with other Federal 
banking and housing regulators, consumer advocacy groups, and industry 
representatives regarding the Small Business Review Panel Outline. The 
Bureau considered feedback provided by roundtable participants in 
preparing the proposal.

E. The Bureau's Proposal

    As described above in part II.D, in July 2012, the Bureau proposed 
for public comment a rule amending Regulation Z to implement sections 
1032(f), 1098, and 1100A of the Dodd-Frank Act, which direct the Bureau 
to combine the mortgage disclosures required under TILA and RESPA. See 
77 FR 51116 (August 23, 2012). Consistent with those provisions, the 
proposed rule would have applied to most closed-end consumer mortgages. 
The proposed rule would not have applied to home-equity lines of 
credit, reverse mortgages, or mortgages secured by a mobile home or by 
a dwelling that is not attached to real property. The proposed rule 
also would not have applied to loans made by a creditor who makes five 
or fewer mortgages in a year. In addition, the proposed rule would have 
amended portions of Regulation X, for consistency with the proposed 
amendments to Regulation Z.
    As discussed above, to accomplish the Dodd-Frank Act's mandate to 
combine the disclosures required under TILA and RESPA, the Bureau 
engaged in extensive consumer and industry research and public outreach 
for more than a year. Based on that input, the Bureau proposed a rule 
with new, combined forms. The proposed rule also would have provided a 
detailed explanation of how the forms should be filled out and used. In 
developing the proposed forms, the Bureau reconciled the differences 
between the existing forms and combined several other mandated 
disclosures.

[[Page 79745]]

    The first proposed form (the Loan Estimate) was designed to provide 
disclosures that would be helpful to consumers in understanding the key 
features, costs, and risks of the mortgage for which they are applying. 
This form would have been provided to consumers within three business 
days after they submit a loan application. The Loan Estimate would have 
replaced two current Federal forms: the RESPA GFE and the early TILA 
disclosure. The proposed rule and commentary would have contained 
detailed instructions as to how each line on the Loan Estimate would be 
completed, and also would have contained sample forms for different 
types of loan products. In addition, the Loan Estimate would have 
incorporated new disclosures required under the Dodd-Frank Act. Under 
the proposed rule, the creditor would have been permitted to rely on a 
mortgage broker to provide the Loan Estimate, but the creditor also 
would have remained responsible for the accuracy of the form. The 
creditor or broker would have been required to give the form to the 
consumer within three business days after the consumer applies for a 
mortgage loan, and the proposed rule would have contained a specific 
definition of what constitutes an ``application'' for these purposes. 
The proposed rule would have permitted creditors and brokers to provide 
consumers with written estimates prior to application, but would have 
required that any such written estimates contain a disclaimer to 
prevent confusion with the Loan Estimate.
    The second proposed form (the Closing Disclosure) was designed to 
provide disclosures that would be helpful to consumers in understanding 
all of the costs of the transaction. This form would have been provided 
to consumers three business days before they close on the loan. The 
form would have used clear language and design to make it easier for 
consumers to locate key information, such as interest rate, monthly 
payments, and costs to close the loan. The form also would have 
provided more information to help consumers decide whether they can 
afford the loan and to compare the cost of different loan offers, 
including the cost of the loans over time. The proposed Closing 
Disclosure would have replaced the RESPA settlement statement and the 
corrected TILA disclosure. The proposed rule and commentary would have 
contained detailed instructions as to how each line on the Closing 
Disclosure would be completed. In addition, the Closing Disclosure 
would have contained additional new disclosures required by the Dodd-
Frank Act and a detailed accounting of the settlement transaction.
    Under the proposed rule, the creditor would have been required to 
give consumers the Closing Disclosure at least three business days 
before the consumer closes on the loan. Generally, if changes occurred 
between the time the Closing Disclosure is given and the closing, the 
consumer would have been provided a new form and also would have been 
given three additional business days to review that form before 
closing. However, the proposed rule would have contained an exception 
from the three-business-day requirement for some common changes, such 
as changes resulting from negotiations between buyer and seller after 
the final walk-through and for minor changes which result in less than 
$100 in increased costs. The Bureau proposed two alternatives for who 
would be required to provide consumers with the Closing Disclosure. 
Under the first option, the creditor would have been responsible for 
delivering the Closing Disclosure form to the consumer. Under the 
second option, the creditor would have been able to rely on the 
settlement agent to provide the form. However, under the second option, 
the creditor also would have remained responsible for the accuracy of 
the form.
    Similar to existing law, the proposed rule would have restricted 
the circumstances in which consumers can be required to pay more for 
settlement services than the amount stated on their Loan Estimate. 
Unless an exception applies, charges for the following services would 
not have been permitted to increase: (1) The creditor's or mortgage 
broker's charges for its own services; (2) charges for services 
provided by an affiliate of the creditor or mortgage broker; and (3) 
charges for services for which the creditor or mortgage broker does not 
permit the consumer to shop. Also unless an exception applies, charges 
for other services generally would not have been permitted to increase 
by more than 10 percent. The proposed rule would have provided 
exceptions, for example, when: (1) The consumer asks for a change; (2) 
the consumer chooses a service provider that was not identified by the 
creditor; (3) information provided at application was inaccurate or 
becomes inaccurate; or (4) the Loan Estimate expires. When an exception 
applies, the creditor generally would have been required to provide an 
updated Loan Estimate within three business days.
    In addition to proposing rules and model forms for the Loan 
Estimate and Closing Disclosure, the proposed rule would have redefined 
the way the Annual Percentage Rate or ``APR'' is calculated and would 
have required creditors to keep records of compliance, including 
records of compliance with the requirements to provide the Loan 
Estimate and Closing Disclosure to consumers in an electronic, machine 
readable format.

F. Feedback Provided to the Bureau

    The Bureau received over 2,800 comments on the TILA-RESPA proposal 
during the comment period from, among others, consumer advocacy groups; 
national, State, and regional industry trade associations; banks; 
community banks; credit unions; financial companies; mortgage brokers; 
title insurance underwriters; title insurance agents and companies; 
settlement agents; escrow agents; law firms; document software 
companies; loan origination software companies; appraisal management 
companies; appraisers; State housing finance authorities, counseling 
associations, and intermediaries; State attorneys general; associations 
of State financial services regulators; State bar associations; 
government sponsored enterprises (GSEs); a member of the U.S. Congress; 
the Committee on Small Business of the U.S. House of Representatives; 
Federal agencies, including the staff of the Bureau of Consumer 
Protection, the Bureau of Economics, and the Office of Policy Planning 
of the Federal Trade Commission (FTC staff), and the Office of Advocacy 
of the Small Business Administration (SBA); and individual consumers 
and academics. In addition, the Bureau also considered other 
information on the record.\124\ Materials on the record are publicly 
available at http://www.regulations.gov. This information is discussed 
below in this part, the section-by-section analysis, and subsequent 
parts of this notice, as applicable.
---------------------------------------------------------------------------

    \124\ The Bureau's policy regarding ex parte communications can 
be found at http://files.consumerfinance.gov/f/2011/08/Bulletin_20110819_ExPartePresentationsRulemakingProceedings.pdf.
---------------------------------------------------------------------------

    As discussed in further detail below, the Bureau sought comment in 
its 2012 HOEPA Proposal on whether to adopt certain adjustments or 
mitigating measures in its HOEPA implementing regulations if it were to 
adopt a broader definition of ``finance charge'' under Regulation Z, as 
proposed in the TILA-RESPA Proposal. Subsequently, the Bureau published 
a notice in the Federal Register making clear that it would defer its 
decision on whether to adopt the more inclusive finance charge

[[Page 79746]]

proposal, and therefore any implementation thereof, until it finalized 
the TILA-RESPA Proposal. 77 FR 54843 (Sept. 6, 2012). Accordingly, the 
Bureau's 2013 HOEPA Final Rule deferred discussion of comments to the 
2012 HOEPA Proposal addressing proposed mitigating measures to account 
for a more inclusive finance charge under HOEPA. In addition, the 
Bureau deferred discussion of comments received regarding a more 
inclusive finance charge definition and potential mitigating measures 
in connection with the proposals finalized by the 2013 ATR Final Rule, 
the 2013 Escrows Final Rule, and the 2013 Interagency Appraisals Final 
Rule, which also would have been affected by a broader definition of 
the finance charge. Comments regarding such potential mitigating 
measures and the Bureau's proposal of a more inclusive definition of 
the finance charge are addressed collectively in the section-by-section 
analysis of Sec.  1026.4, below.
    The Bureau has considered the comments and ex parte communications 
and has decided to modify the proposal in certain respects and adopt 
the final rule as described below in the section-by-section analysis.

G. Post-Proposal Consumer Testing

    While developing the proposed integrated disclosures, the Bureau 
received feedback from stakeholders regarding additional testing they 
believed would be necessary for the integrated disclosures. For 
example, during the Small Business Review Panel, several small business 
representatives recommended that the Bureau explore the feasibility of 
conducting testing of the integrated disclosures on actual loans before 
issuing a final rule. See Small Business Review Panel Report at 28. In 
addition, several comments to the proposal suggested that the Bureau 
conduct additional testing of the integrated disclosures on actual 
loans in the marketplace. Based on this feedback and public comments 
and consistent with the Small Business Review Panel's recommendation, 
the Bureau has considered what additional testing would be appropriate, 
including the feasibility of testing the integrated disclosures on 
actual loans.
    The Bureau determined that testing the integrated disclosures on 
actual loans would not be feasible in the course of this rulemaking, 
nor would it provide the Bureau with significantly better information 
compared to the information that would be obtained from qualitative and 
quantitative consumer testing of the integrated disclosures. The length 
of time that would be necessary to develop and conduct such a study 
would be extensive. To conduct such a study involving actual loans in 
the marketplace, the Bureau would need to: develop the methodology of 
such a study; submit the methodology and any additional information 
necessary to OMB to obtain prior approval to conduct the study under 
the Paperwork Reduction Act; recruit and identify industry stakeholders 
in the lending, title insurance, and settlement industries willing to 
participate in such a study; assist such industry participants in 
developing unique systems to produce disclosures in conformity with the 
TILA-RESPA Proposal; provide sufficient legal protections to such 
industry participants involved in the study; and collect data from such 
transactions throughout the application through closing stages, which 
period of time can last 90 days in many cases. Also, the Bureau had not 
yet finalized a policy under section 1032(e) of the Dodd-Frank Act 
during the course of finalizing the proposal, which would set forth 
standards and safeguards for conducting such a program and providing 
waivers from Federal disclosure requirements, and thus, formal 
processes for such a study were not in place.\125\ In addition, in a 
controlled setting in a testing facility, the Bureau was able to 
conduct a study with a large number of participants (858 participants) 
in a short period of time (fielded in approximately two months), with a 
control group using the current disclosures, under which participants 
in both groups were exposed to the same loans, environment, and minimal 
level of distractions. The Bureau believes such a controlled setting 
has enabled the Bureau to obtain data that isolates the performance 
differences between the current and integrated disclosures. In 
addition, the Bureau believes that commenters and industry stakeholders 
suggesting that the Bureau should conduct consumer testing in actual 
loans in the marketplace are, in part, interested in such testing 
because of its ability to identify compliance issues with the proposed 
rule and disclosures. The Bureau believes such compliance issues have 
been identified through other means, such as through its analysis of 
the public comments received, review of past disclosure rulemakings 
(including HUD's 2008 RESPA Final Rule), and extensive outreach prior 
to issuing the proposal.
---------------------------------------------------------------------------

    \125\ See 78 FR 14030 (Oct. 29, 2013) (finalizing Policy to 
Encourage Trial Disclosure Programs under section 1032(e) of the 
Dodd-Frank Act); 77 FR 74625 (Dec. 17, 2012) (seeking comment on a 
proposed ``Policy to Encourage Trial Disclosure Programs'' under 
section 1032(e) of the Dodd-Frank Act); see also 78 FR 36532 (June 
18, 2013) (seeking comment under the Paperwork Reduction Act on the 
proposed policy).
---------------------------------------------------------------------------

    However, as described further below, the Bureau has conducted 
additional qualitative testing of certain revisions the Bureau made to 
the integrated disclosures based on public comments, as well as of 
Spanish translations of the integrated disclosures and modified 
versions of the integrated disclosures for transactions without sellers 
(in particular, refinance transactions). The Bureau has also conducted 
a large scale quantitative test of the integrated disclosures to 
confirm that they aid consumers' understanding of mortgage transactions 
and evaluate the performance of the integrated disclosures against the 
current RESPA GFE, RESPA settlement statement, and early and final TILA 
disclosures. The Bureau again contracted with Kleimann (the research 
firm with which the Bureau originally contracted to assist with the 
development of the integrated disclosures and to conduct the pre-
proposal qualitative testing) to conduct this post-proposal testing. 
This qualitative testing after issuance of the proposal utilized 
identical methodology as the pre-proposal qualitative testing, except 
that the testing did not include industry participants because of the 
targeted focus of the testing on consumer understanding of particular 
aspects of the integrated disclosures.
Spanish Language Testing
    There are many consumers in the U.S. for whom English is not their 
primary language.\126\ Spanish speakers make up approximately 62 
percent of the people in the United States that speak a language other 
than English in their homes.\127\ During the early stages of the 
development of the proposed integrated disclosures, the Bureau received 
informal feedback requesting that the Bureau develop Spanish language 
versions of the integrated disclosures. Accordingly, as described in 
the TILA-RESPA Proposal, the Bureau's consumer testing included two 
rounds of testing with Spanish-speaking consumers of Spanish-language 
prototype integrated disclosures to determine whether co-development of 
a non-English version of

[[Page 79747]]

the integrated disclosures would be beneficial to consumers. The Bureau 
wanted to determine whether there were any structural issues in the 
prototype designs that could cause differences in performance for 
speakers of Spanish.
---------------------------------------------------------------------------

    \126\ According to the U.S. Census Bureau, based on data from 
the 2007 American Community Survey, 55.4 million people spoke a 
language other than English at home. U.S. Census Bureau, Language 
Use in the United States: 2007, ACS-12 (Apr. 2010), available at 
http://www.census.gov/hhes/socdemo/language/data/acs/ACS-12.pdf.
    \127\ Id.
---------------------------------------------------------------------------

    After two rounds of consumer testing in Spanish, the Bureau 
determined that co-development of a separate Spanish version of the 
disclosures would likely yield little benefit to consumers, because any 
differences in performance with the Spanish prototypes during testing 
were caused more by translation than design and structure issues. The 
Bureau also believed that the differences in language would not 
necessitate changes to the design of the disclosure given that the 
Bureau intentionally pursued a more graphic than textual design for the 
Loan Estimate, which used as few words as possible. However, the Bureau 
was still interested in developing Spanish language versions of the 
integrated disclosures, as it believed consumers who speak only Spanish 
or speak a limited amount of English would benefit from improved 
understanding of their mortgage transactions. While the proposed rule 
only included English-language disclosure sample forms, it would have 
permitted the translation of these forms. In addition, the Bureau 
stated in the proposal that it planned to review issues concerning 
translations of the integrated disclosures after the proposal and 
solicited comment on whether the final rule should include sample 
Spanish-language or other non-English language forms.
    The Bureau received several comments requesting that the Bureau 
publish disclosures in Spanish or other non-English languages, and 
pursue additional consumer testing of Spanish translations of the 
integrated disclosures. These comments came from an individual loan 
officer, several industry trade associations, a national title 
insurance company, and a consumer advocacy group. The individual loan 
officer commenter, who worked at a non-depository lender, generally 
praised the proposed integrated disclosures, but inquired if non-
English forms would be made available. The commenter suggested that 
many non-English speaking consumers were subject to deceptive practices 
because they could not read the English language disclosures. The 
consumer advocacy group commenter strongly urged the Bureau to publish 
Spanish translations of the integrated disclosures, as well as 
translations in other languages spoken in the U.S., such as Chinese, 
Korean, Russian, and Vietnamese. An industry trade association 
representing banks stated that it would be very useful for the Bureau 
to provide Spanish or other non-English translations of the integrated 
disclosures so that banks could use them when loan transactions occur 
in other languages. The commenter also encouraged the Bureau to test 
these translations to monitor their effectiveness. Several industry 
trade associations representing banks and mortgage lenders stated that 
it would greatly facilitate creditors providing disclosures in 
languages other than English if the Bureau translated the integrated 
disclosures into all major languages. The commenters stated that it 
would be more efficient for the Bureau to translate the disclosures, 
rather than creditors separately translating them, and noted that the 
Bureau could then assure itself that such translations were accurate.
    A national title insurance company stated that providing a blank 
non-English disclosure form would be useful if consumers that speak 
other languages could request it in addition to the English language 
disclosure required under the regulation, because they could compare it 
to the completed Loan Estimate or Closing Disclosure received in 
English. However, the commenter stated that requiring creditors or 
settlement agents to maintain a supply of forms in non-English 
languages would be unduly burdensome with little benefit to the 
consumer, especially for small entities.
    The Bureau contracted with Kleimann to translate the Loan Estimate 
and Closing Disclosure into Spanish, adjust the designs as necessary to 
accommodate any additional space required for the translated text, and 
qualitatively test the translations with Spanish-speaking consumers.
    The Bureau conducted four rounds of testing in Spanish in October 
2012, November 2012, December 2012, and July 2013 in Arlington, 
Virginia; Phoenix, Arizona; Miami, Florida; and Baltimore, Maryland, 
respectively. This post-proposal Spanish qualitative testing included 
29 consumers in total. The first three rounds of Spanish qualitative 
consumer testing used Spanish translations of the integrated disclosure 
substantially as proposed, with modifications to the design to 
accommodate the additional space necessary for the Spanish language 
text and to revise the order of certain disclosures so that they remain 
in alphabetical order, as on the English language versions of the 
integrated disclosures.\128\ The fourth round used prototype integrated 
disclosures that included the potential modifications to the integrated 
disclosures the Bureau was considering based on the public comments to 
the proposed rule, including the modifications to the disclosures 
permitted in this final rule for transactions without sellers, as 
described in the section-by-section analysis below.
---------------------------------------------------------------------------

    \128\ The modifications to the design to accommodate the 
additional space necessary for the Spanish language text 
necessitated the use of a sixth page for the Spanish language 
version of the Closing Disclosure.
---------------------------------------------------------------------------

    The Spanish language qualitative testing focused on translation 
issues, with a particular focus on terms that when directly translated 
into Spanish do not convey the same meaning as in English, such as the 
term ``balloon payment.'' The Bureau conducted this testing to ensure 
that the Spanish translations would be effective for consumers that 
speak different dialects of Spanish used throughout the country. As 
described below in the section-by-section analyses of Sec.  1026.37(o) 
and appendix H to Regulation Z, the Bureau is adopting Spanish language 
samples of the integrated disclosures in this final rule, which are 
based on this Spanish language qualitative testing. For a detailed 
discussion of this testing, see the report prepared by Kleimann, Post-
Proposal Testing of the Spanish and Refinance Integrated TILA-RESPA 
Disclosures (Kleimann Post-Proposal Testing Report), which the Bureau 
is releasing on its Web site in connection with this final rule.\129\
---------------------------------------------------------------------------

    \129\ Kleimann Communication Group, Inc., Post-Proposal Testing 
of the Spanish and Refinance Integrated TILA-RESPA Disclosures 
(November 2013), available at http://files.consumerfinance.gov/f/201311_cfpb_report_tila-respa_testing-spanish-refinancing.pdf.
---------------------------------------------------------------------------

    In addition, as discussed in the section-by-section analysis of 
appendix H to Regulation Z below, the Bureau is adopting Spanish 
language versions of some of the English language versions of the Loan 
Estimates and Closing Disclosures in forms H-24 and H-25 of appendix H, 
which are based on the Bureau's consumer testing. Regarding the 
national title insurance company commenter's concerns regarding the 
burden associated with a requirement to use non-English language 
disclosures, the Bureau is not requiring in this final rule that 
creditors use non-English language versions of the integrated 
disclosures. The final rule permits creditors to translate the 
disclosures into other languages, as discussed in the section-by-
section analysis of Sec. Sec.  1026.37(o) and 1026.38(t). The Bureau 
believes, as suggested by other

[[Page 79748]]

comments, that including in the final rule versions of the integrated 
disclosures in Spanish that the Bureau has tested with consumers will 
assist industry in communicating with Spanish-speaking consumers, and 
facilitate industry compliance with any applicable State laws requiring 
the use of non-English versions of the integrated disclosures.
Quantitative Study
    In the TILA-RESPA Proposal, the Bureau stated that it may conduct 
quantitative testing of the integrated disclosures to confirm that the 
forms aid consumers' understanding of mortgage transactions, if it 
determined such testing to be appropriate. The Bureau understood from 
its work with Kleimann that validation testing, in the form of a 
quantitative study, can be an important phase of the user-centered 
design process. A quantitative test would supplement the Bureau's pre-
proposal qualitative data and validate the results of the Bureau's 
qualitative consumer testing conducted before issuance of the proposal, 
by providing the Bureau with statistical data and evidence about the 
performance of the integrated disclosures. However, generally, these 
studies cannot occur until the disclosure design to be tested has been 
determined, and thus, the Bureau delayed conducting such testing until 
after the proposed rule was issued and it had received public comment 
on the proposed designs. Accordingly, the Bureau determined to 
investigate whether such a study would be appropriate after issuance of 
the proposed rule.
    The Bureau also received several comments to the TILA-RESPA 
Proposal regarding the benefits of conducting a quantitative test of 
the integrated disclosures. The FTC staff commended the Bureau's 
qualitative testing; however, they also highlighted the benefits of 
quantitative testing, stating that such testing would allow the Bureau 
to confirm that the integrated disclosures do, in fact, aid consumer 
understanding. The FTC staff encouraged the Bureau to conduct a 
quantitative test with two key elements: (1) A focus on the actual 
performance of the disclosures, rather than consumers' preferences; and 
(2) a control group in the study using the current disclosure forms, to 
isolate and measure the impact of the integrated disclosures. The FTC 
staff noted that the integrated disclosures may contain more 
information than what is included on the current disclosures, but still 
encouraged the Bureau to conduct such a study to compare the 
information that was the same between the disclosures. A State attorney 
general supported the use of quantitative testing and stated that it 
concurred with the FTC staff's comment letter.
    A State association of financial services regulators commented that 
further quantitative testing of consumer comprehension would be a 
helpful exercise and give the Bureau a more precise idea as to how many 
consumers properly understand mortgage terms, costs and differences 
across products. The commenter suggested that the Bureau's consumer 
testing should be supplemented by more quantitative data and controlled 
testing of comprehension, and that, without statistically sound 
quantitative evaluation, understanding the effect of the integrated 
disclosures would be imprecise.
    The Bureau also solicited comments on conducting such quantitative 
testing under the Paperwork Reduction Act, as it would be an 
information collection requiring the approval of OMB under that 
statute. See 44 U.S.C. 3506(c)(2)(A). In March 2012, the Bureau 
published a notice in the Federal Register soliciting comment for 60 
days, to obtain comments prior to the Bureau's planning the 
quantitative testing. 77 FR 18793 (Mar. 28, 2012). The Bureau did not 
receive any comments in response to that notice. In February 2013, the 
Bureau also published a subsequent notice to solicit comment on the 
Bureau's proposed quantitative testing under the Paperwork Reduction 
Act, which was open for 30 days. 78 FR 8113 (Feb. 5, 2013). In response 
to that notice, the Bureau received six comments from national and 
State industry trade associations. The Bureau addressed those comments 
in the Supporting Statement it submitted to OMB to obtain that agency's 
approval to conduct the quantitative testing under the Paperwork 
Reduction Act. On March 26, 2013, the Bureau received OMB's approval to 
conduct the quantitative testing, which was assigned OMB control number 
3170-0033.
    The Bureau contracted with Kleimann to conduct the quantitative 
test of the integrated disclosures to confirm that the disclosures aid 
consumers' understanding of mortgage transactions and evaluate the 
performance of the forms against the current RESPA GFE, RESPA 
settlement statement, and early and final TILA disclosures (the 
Quantitative Study). The Quantitative Study's goal was to confirm that 
the Bureau's integrated disclosures (the Loan Estimate and the Closing 
Disclosure) aided consumers in understanding mortgage loan 
transactions, including enabling consumers to identify and compare loan 
terms and costs, choose between loans, and identify and compare changes 
between estimated and final amounts. In addition, the goal of the 
baseline test was to confirm that the integrated disclosures perform 
better on those measures than the current disclosures.
    The Quantitative Study design consisted of a sample of 858 consumer 
participants, and a 2 by 2 by 2 by 2 between-subjects experimental 
design. The study factors, or independent variables, included the 
following: (1) Form type (current or integrated disclosures); (2) loan 
type (fixed or adjustable rate loans); (3) difficulty type (relatively 
easier or more challenging loans); and (4) consumer type (experienced 
or inexperienced with mortgage loans). The study consisted of a 60-
minute session in which consumer participants answered questions on a 
written questionnaire about different loan transactions that were 
presented to them. As this was a between-subjects design, consumer 
participants only used either the current or integrated disclosures to 
enable the Bureau to better evaluate the performance differences 
between the two form types. The Bureau conducted the study in 20 
locations across the country (specifically, the continental United 
States), which covered the four Census regions and the Census sub-
regions and included participants from urban, suburban, and rural 
areas. To qualify for the main survey, participants had to be age 18 
years or older, live in a household within 50 miles of the location 
used for the study, have purchased or refinanced a home in the last 
five years or have plans to purchase or refinance in the next two 
years, and agree to participate in the in-person testing session.
    The Quantitative Study used an analysis that examined the accuracy 
of participant responses to the questions in the study for the current 
and the integrated disclosures. This analysis is similar to the 
analysis reported by the FTC staff in a 2007 study evaluating prototype 
mortgage disclosures in comparison to then-current TILA and REPSA 
disclosures.\130\ The Quantitative Study concluded that the proposed 
integrated disclosures, with the minor modifications made in response 
to

[[Page 79749]]

public comments,\131\ performed better than the current disclosures 
based on aggregate measures of the data. That data showed a 
statistically significant performance advantage of around 16 percentage 
points for the proposed disclosures that was consistent across the 
variables of the study: experienced as well as inexperienced consumers, 
relatively easier as well as more challenging loans, and fixed rate as 
well as adjustable rate loans. The integrated disclosures performed 
better than the current disclosures with respect to specific tasks in 
the study as well. The integrated disclosures showed a performance 
advantage of about 24 percentage points for comparing two loans using 
the application disclosures; about 10 percentage points for 
understanding one loan using the application disclosures; about 17 
percentage points for comparing the application and closing 
disclosures; and about 29 percentage points for understanding the final 
loan terms and costs using the closing disclosures. In addition to 
measuring the accuracy of responses to questions about particular 
loans, participants in the Quantitative Study were asked to select 
between two loans using the application disclosures (either early TILA 
disclosures and RESPA GFEs or Loan Estimates), and then asked in an 
open-ended question to provide reasons for their selection. In response 
to the open-ended question, participants using the integrated 
disclosures on average provided a greater total number of reasons for 
their selection of a particular loan, which difference was 
statistically significant and consistent across the variables of the 
study. This result suggests that participants using the integrated 
disclosures were able to articulate and explain more reasons for their 
choice. For a detailed discussion of this testing, see the report 
prepared by Kleimann, Quantitative Study of the Current and Integrated 
TILA-RESPA Disclosures (Kleimann Quantitative Study Report), which the 
Bureau is releasing on its Web site in connection with this final 
rule.\132\
---------------------------------------------------------------------------

    \130\ James Lacko and Janis Pappalardo, Improving Consumer 
Mortgage Disclosures: An Empirical Assessment of Current and 
Prototype Disclosure Forms, Federal Trade Commission, p. 53 (June 
2007), available at http://www.ftc.gov/os/2007/06/P025505MortgageDisclosureReport.pdf.
    \131\ Prior to conducting the Quantitative Study, the Bureau 
made modifications to the proposed integrated disclosures in 
response to public comments to increase consistency within and 
between the Loan Estimate and Closing Disclosure. The Bureau 
revised: The Assumption disclosures under Sec. Sec.  1026.37(m) and 
1026.38(l) so that the language between the two disclosures would 
match; the reference language in the Loan Terms table under 
Sec. Sec.  1026.37(b) and 1026.38(b) so that the reference to the 
estimated total payment monthly payment used the same term as in the 
Projected Payments table under Sec. Sec.  1026.37(c) and 1026.38(c), 
and to put the language in sentence case to increase readability; 
the checkboxes in the Escrow Account disclosure on the Closing 
Disclosure under Sec.  1026.38(l)(7) to delete the ``require or'' 
from the second checkbox; change the ``Agent'' label on page 1 of 
the Closing Disclosure under Sec.  1026.38(a) to ``Settlement 
Agent'' to match the Contact Information table under Sec.  
1026.38(r); removed the word ``Borrower'' from the ``Borrower's Loan 
Amount'' label under Sec.  1026.38(j) to match the term used in the 
Loan Terms table under Sec. Sec.  1026.37(b) and 1026.38(b); and 
changed the labels of the row headings in the Escrow Account 
disclosure on page 4 of the Closing Disclosure under Sec.  
1026.38(l)(7) to include the word ``escrow.'' See the section-by-
section analyses of the respective sections for more information 
regarding these modifications.
    \132\ Kleimann Communication Group, Inc., Quantitative Study of 
the Current and Integrated TILA-RESPA Disclosures (November 2013), 
available at http://files.consumerfinance.gov/f/201311_cfpb_study_tila-respa_disclosure-comparison.pdf. See chapters 4 and 5 
of the report for the results and conclusions of the study.
---------------------------------------------------------------------------

Qualitative Testing of Revisions to the Proposed Disclosures
    The Bureau reviewed comments regarding the design of the proposed 
Loan Estimate and Closing Disclosure. Many of the disclosure-related 
comments were suggestions of minor modifications to the disclosures to 
ensure greater consistency within and between the Loan Estimate and 
Closing Disclosure. The Bureau determined that some of the suggested 
minor modifications to the proposed integrated disclosures were 
appropriate, as described in the section-by-section analyses of the 
respective sections of Sec. Sec.  1026.37 and 1026.38 below.
    However, some comments suggested more substantial modifications to 
the proposed Loan Estimate and Closing Disclosure with respect to the 
Calculating Cash to Close table in refinance transactions and the Cash 
to Close table in all transactions. The Bureau considered these 
comments and feedback and determined that modifications to such 
disclosures may benefit consumer understanding, but because they 
involved more than minor modifications, should be developed and 
evaluated through further qualitative consumer testing, as described in 
more detail below.
    In addition, a joint ex parte letter from three industry trade 
associations suggested that the Bureau's proposed integrated 
disclosures do not accommodate certain types of loans, such as loans 
with buydowns; closed-end second-lien loans originated simultaneously 
with a first-lien loan; refinances and cash-out refinances; refinances 
of loans with a co-borrower added or removed; or loans with a guarantor 
or non-occupant co-borrower. The trade associations also suggested that 
the Bureau conduct further testing of the disclosures for all loan 
products available through the GSEs and FHA. The trade associations 
also suggested that consumers would not be able to identify changed 
information between an original and revised Loan Estimate. The Bureau 
believes that consumers can compare two Loan Estimates and identify 
changes. As described above, in the Bureau's Quantitative Study, the 
Bureau's integrated disclosures showed a performance advantage of 
approximately 24 percentage points over the current disclosures for 
comparing two loans. See Kleimann Quantitative Study Report at 43.
    With respect to the trade associations' suggestion that the 
Bureau's integrated disclosures do not accommodate certain factual 
scenarios or loan products, the letter only stated a conclusion and did 
not explain how the Bureau's proposed disclosures would not accommodate 
such scenarios or products. The Bureau is not aware of any reasons why 
such factual scenarios or loan products would not be accommodated by 
the Bureau's integrated disclosures. Indeed, some of the factual 
scenarios and loan products identified by the letter are specifically 
addressed in current Regulation Z as well as in this final rule, such 
as loans with buydowns, refinance transactions, and loans with multiple 
borrowers. For example, this final rule amends comments 17(c)(1)-3 and 
-4 to provide further guidance regarding buydowns. See the section-by-
section analysis of Sec.  1026.17(c)(1); see also the section-by-
section analysis of Sec.  1026.17(d) (regarding loans with multiple 
borrowers). Further, as described in this part and in the section-by-
section analyses of Sec.  1026.37(d) and (h) and Sec.  1026.38(d) and 
(e) below, the Bureau is making modifications to the integrated 
disclosures that can be used in transactions not involving a seller, 
including refinance transactions.
    Specifically, the Bureau received several comment letters 
questioning the ability of consumers to understand easily from the 
proposed disclosures that they received funds at the consummation of a 
refinance transaction. Accordingly, as noted above, the Bureau 
determined that testing a modification to the integrated disclosures 
for refinance transactions (and other transactions without sellers) 
would be appropriate.
    In addition, as also described below in the section-by-section 
analysis of Sec.  1026.37(d), the Bureau received comments critical of 
the emphasis placed on the cash to close amount on the first page of 
the proposed Loan Estimate and Closing Disclosure. Further, although 
the Bureau learned from the Quantitative Study that the Bureau's 
integrated disclosures generally performed better than the

[[Page 79750]]

current disclosure forms, the Bureau also learned that consumer 
participants performed better at identifying the total estimated 
closing costs using the RESPA GFE and early TILA disclosure than with 
the Loan Estimate.\133\ Accordingly, the Bureau determined that it 
would be appropriate to test a modification to the Cash to Close table 
on the first page of the proposed Loan Estimate to place equal emphasis 
on the cash to close and total estimated closing costs amounts and to 
enable easier identification of the total estimated closing costs.
---------------------------------------------------------------------------

    \133\ See Kleimann Quantitative Study Report at 68-69.
---------------------------------------------------------------------------

    The Bureau contracted with Kleimann to assist in the design, 
research, and qualitative consumer testing of potential modifications 
to the proposed integrated disclosures. The Bureau conducted one round 
of qualitative testing in June 2013, and two rounds in July 2013, in 
Bethesda, Maryland; Baltimore, Maryland; and Richmond, Virginia, 
respectively. This post-proposal qualitative consumer testing included 
21 consumers in total. For a detailed discussion of this testing, see 
the Kleimann Post-Proposal Testing Report.\134\
---------------------------------------------------------------------------

    \134\ Available at http://files.consumerfinance.gov/f/201311_cfpb_report_tila-respa_testing-spanish-refinancing.pdf.
---------------------------------------------------------------------------

H. Delay of Title 14 Disclosures

Title XIV Disclosures
    In addition to the integrated disclosure requirements in title X of 
the Dodd-Frank Act, various provisions of title XIV of the Dodd-Frank 
Act amend TILA, RESPA, and other consumer financial laws to impose new 
disclosure requirements for mortgage transactions (the Title XIV 
Disclosures). These provisions generally require disclosure of certain 
information when a consumer applies for a mortgage loan or shortly 
before consummation of the loan, around the same time that consumers 
will receive the TILA-RESPA integrated disclosures required by sections 
1032(f), 1098, and 1100A of the Dodd-Frank Act, and after consummation 
of the loan if certain events occur. Dodd-Frank Act title XIV 
provisions generally take effect within 18 months after the designated 
transfer date (i.e., by January 21, 2013) unless final rules 
implementing those requirements are issued on or before that date and 
provide for a different effective date pursuant to Dodd-Frank Act 
section 1400(c)(3).\135\
---------------------------------------------------------------------------

    \135\ Dodd-Frank Act section 1400(c)(3) is codified at 15 U.S.C. 
1601 note.
---------------------------------------------------------------------------

    The Title XIV Disclosures generally include the following:
     Warning regarding negative amortization features. Dodd-
Frank Act section 1414(a); TILA section 129C(f)(1).\136\
---------------------------------------------------------------------------

    \136\ Dodd-Frank Act section 1414(a) also added to TILA new 
section 129C(f)(2), which requires first-time borrowers for certain 
residential mortgage loans that could result in negative 
amortization to provide the creditor with documentation to 
demonstrate that the consumer received homeownership counseling from 
organizations or counselors certified as competent to provide such 
counseling by HUD. That provision is implemented in the Bureau's 
proposal to implement Dodd-Frank Act requirements expanding 
protections for ``high-cost'' mortgage loans under the Home 
Ownership and Equity Protection Act of 1994 (HOEPA), pursuant to 
TILA sections 103(bb) and 129, as amended by Dodd-Frank Act sections 
1431 through 1433 (the 2012 HOEPA Proposal). 77 FR 49090 (Aug. 15, 
2012). The 2012 HOEPA Proposal also implements the requirement of 
RESPA section 5(c), added by section 1450 of the Dodd-Frank Act, 
that lenders provide borrowers with a list of certified 
homeownership counselors.
---------------------------------------------------------------------------

     Disclosure of State law anti-deficiency protections. Dodd-
Frank Act section 1414(c); TILA section 129C(g)(2) and (3).
     Disclosure regarding creditor's partial payment policy 
prior to consummation and, for new creditors, after consummation. Dodd-
Frank Act section 1414(d); TILA section 129C(h).
     Disclosure regarding mandatory escrow or impound accounts. 
Dodd-Frank Act section 1461(a); TILA section 129D(h).
     Disclosure prior to consummation regarding waiver of 
escrow in connection with the transaction. Dodd-Frank Act section 1462; 
TILA section 129D(j)(1)(A).
     Disclosure regarding cancellation of escrow after 
consummation. Dodd-Frank Act section 1462; TILA section 129D(j)(1)(B).
     Disclosure of monthly payment, including escrow, at 
initial and fully-indexed rate for variable-rate residential mortgage 
loan transactions. Dodd-Frank Act section 1419; TILA section 
128(a)(16).
     Repayment analysis disclosure to include amount of escrow 
payments for taxes and insurance. Dodd-Frank Act section 1465; TILA 
section 128(b)(4).
     Disclosure of aggregate amount of settlement charges, 
amount of charges included in the loan and the amount of such charges 
the borrower must pay at closing, the approximate amount of the 
wholesale rate of funds, and the aggregate amount of other fees or 
required payments in connection with a residential mortgage loan. Dodd-
Frank Act section 1419; TILA section 128(a)(17).
     Disclosure of aggregate amount of mortgage originator fees 
and the amount of fees paid by the consumer and the creditor. Dodd-
Frank Act section 1419; TILA section 128(a)(18).
     Disclosure of total interest as a percentage of principal. 
Dodd-Frank Act section 1419; TILA section 128(a)(19).
     Optional disclosure of appraisal management company fees. 
Dodd-Frank Act section 1475; RESPA section 4(c).
     Disclosure regarding notice of reset of hybrid adjustable 
rate mortgage. Dodd-Frank Act section 1418(a); TILA section 128A(b).
     Loan originator identifier requirement. Dodd-Frank section 
1402(a)(2); TILA section 129B(b)(1)(B).
     Consumer notification regarding appraisals for higher-risk 
mortgages. Dodd-Frank Act section 1471; TILA section 129H(d).
     Consumer notification regarding the right to receive an 
appraisal copy. Dodd-Frank Act section 1474; Equal Credit Opportunity 
Act (ECOA) section 701(e)(5).
    As noted in the list above, the Title XIV Disclosures include 
certain disclosures that may need to be provided to consumers both 
before and after consummation. For example, the Title XIV Disclosures 
include disclosures regarding a creditor's policy for acceptance of 
partial loan payments both before consummation and, for persons who 
subsequently become creditors for the transaction, after consummation 
as required by new TILA section 129C(h), added by Dodd-Frank Act 
section 1414(d).\137\ In addition, the Title XIV Disclosures include 
disclosures for consumers who waive or cancel escrow services both 
before and after consummation, added by Dodd-Frank Act section 1462. 
Specifically, new TILA section 129D(j)(1)(A) requires a creditor or 
servicer to provide a disclosure with the information set forth under 
TILA section 129D(j)(2) when an impound, trust, or other type of 
account for the payment of property taxes, insurance premiums, or other 
purposes relating to real property securing a consumer credit 
transaction is not established in connection with the transaction (the 
Pre-Consummation

[[Page 79751]]

Escrow Waiver Disclosure). New TILA section 129D(j)(1)(B) requires a 
creditor or servicer to provide disclosures post-consummation with the 
information set forth under TILA section 129D(j)(2) when a consumer 
chooses, and provides written notice of the choice, to close his or her 
escrow account established in connection with a consumer credit 
transaction secured by real property in accordance with any statute, 
regulation, or contractual agreement (the Post-Consummation Escrow 
Cancellation Disclosure). 15 U.S.C. 1639d(j)(1)(A), 1639d(j)(1)(B). The 
statute sets forth an identical set of information for both of these 
disclosures.\138\
---------------------------------------------------------------------------

    \137\ As it stated in the TILA-RESPA Proposal, the Bureau 
believes that to give effect to the legislative purpose of section 
1414(d) of the Dodd-Frank Act, the disclosure requirements of TILA 
section 129C(h) should apply without regard to whether the person 
would be a ``creditor'' under TILA and Regulation Z. See 77 FR 
51116, 51265. For these reasons, in the TILA-RESPA Proposal, the 
Bureau proposed to retain the term ``covered person'' under Sec.  
1026.39(a)(1) and its definition, which would subject such covered 
persons to the proposed disclosure requirements. Id. As in the TILA-
RESPA Proposal, in this final rule the Bureau is temporarily 
exempting ``persons'' (as defined in Regulation Z) rather than 
``creditors'' from compliance with the provisions of TILA section 
129C(h), which includes covered persons.
    \138\ The information set forth under TILA section 129D(j)(2) 
includes information concerning any applicable fees or costs 
associated with either the non-establishment of the escrow account 
at the time of the transaction, or any subsequent closure of the 
account; a clear and prominent statement that the consumer is 
responsible for personally and directly paying the non-escrowed 
items, in addition to paying the mortgage loan payment, in the 
absence of any such account, and the fact that the costs for taxes, 
insurance, and related fees can be substantial; a clear explanation 
of the consequences of any failure to pay non-escrowed items, 
including the possible requirement for the forced placement of 
insurance by the creditor or servicers and the potentially higher 
cost (including any potential commission payments to the servicer) 
or reduced coverage for the consumer in the event of any such 
creditor-placed insurance; and other information the Bureau 
determines is necessary for consumer protection. 15 U.S.C. 
1639d(j)(2).
---------------------------------------------------------------------------

Board's 2011 Escrows Proposal
    Sections 1461 and 1462 of the Dodd-Frank Act create new TILA 
section 129D, which substantially codifies requirements that the Board 
had previously adopted in Regulation Z regarding escrow requirements 
for higher-priced mortgage loans, but also adds disclosure requirements 
and lengthens the period for which escrow accounts are required. 15 
U.S.C. 1639d. On March 2, 2011, the Board proposed amendments to 
Regulation Z implementing certain requirements of sections 1461 and 
1462 of the Dodd-Frank Act. 76 FR 11598 (Mar. 2, 2011) (Board's 2011 
Escrows Proposal). The Board proposed, among other things, to implement 
the disclosure requirements under TILA section 129D(j)(1) in Regulation 
Z under a new Sec.  226.19(f)(2)(ii) and Sec.  226.20(d) of the Board's 
Regulation Z, including both the Pre-Consummation Escrow Waiver 
Disclosure and the Post-Consummation Escrow Cancellation Disclosure.
    The comment period for the Board's 2011 Escrows Proposal closed on 
May 2, 2011. The Board did not finalize the 2011 Escrows Proposal. 
Subsequent to the issuance of the Board's 2011 Escrows Proposal, the 
authority for finalizing the proposal was transferred to the Bureau 
pursuant to the Dodd-Frank Act.\139\
---------------------------------------------------------------------------

    \139\ Effective July 21, 2011, the Dodd-Frank Act generally 
transferred rulemaking authority for TILA to the Bureau (except for 
certain rulemaking authority over motor vehicle dealers that remains 
with the Board). See sections 1061 and 1100A of the Dodd-Frank Act.
---------------------------------------------------------------------------

TILA-RESPA Proposal To Delay Certain Title XIV Disclosures
    The TILA-RESPA Proposal requested comment on the proposed rules and 
forms to integrate the disclosure requirements of TILA and RESPA, as 
required by sections 1032(f), 1098, and 1100A of the Dodd-Frank 
Act.\140\ In addition, the TILA-RESPA Proposal requested comment on an 
amendment to Sec.  1026.1(c) of Regulation Z, which would have 
temporarily exempted persons from compliance with the following Title 
XIV Disclosures (collectively, the Affected Title XIV Disclosures) so 
that the disclosures could instead be incorporated into the TILA-RESPA 
integrated disclosures that would be finalized in the future:
---------------------------------------------------------------------------

    \140\ See the Bureau's press release Consumer Financial 
Protection Bureau proposes ``Know Before You Owe'' mortgage forms 
(July 9, 2012), available at http://www.consumerfinance.gov/pressreleases/consumer-financial-protection-bureau-proposes-know-before-you-owe-mortgage-forms/; the Bureau's blog post Know Before 
You Owe: Introducing our proposed mortgage disclosure forms (July 9, 
2012), available at http://www.consumerfinance.gov/blog/know-before-you-owe-introducing-our-proposed-mortgage-disclosure-forms/.
---------------------------------------------------------------------------

     Warning regarding negative amortization features. Dodd-
Frank Act section 1414(a); TILA section 129C(f)(1).
     Disclosure of State law anti-deficiency protections. Dodd-
Frank Act section 1414(c); TILA section 129C(g)(2) and (3).
     Disclosure regarding creditor's partial payment policy 
prior to consummation and, for new creditors, after consummation. Dodd-
Frank Act section 1414(d); TILA section 129C(h).
     Disclosure regarding mandatory escrow or impound accounts. 
Dodd-Frank Act section 1461(a); TILA section 129D(h).
     Disclosure prior to consummation regarding waiver of 
escrow in connection with the transaction. Dodd-Frank Act section 1462; 
TILA section 129D(j)(1)(A).
     Disclosure of monthly payment, including escrow, at 
initial and fully-indexed rate for variable-rate residential mortgage 
loan transactions. Dodd-Frank Act section 1419; TILA section 
128(a)(16).
     Repayment analysis disclosure to include amount of escrow 
payments for taxes and insurance. Dodd-Frank Act section 1465; TILA 
section 128(b)(4).
     Disclosure of aggregate amount of settlement charges, 
amount of charges included in the loan and the amount of such charges 
the borrower must pay at closing, the approximate amount of the 
wholesale rate of funds, and the aggregate amount of other fees or 
required payments in connection with a residential mortgage loan. Dodd-
Frank Act section 1419; TILA section 128(a)(17).
     Disclosure of aggregate amount of mortgage originator fees 
and the amount of fees paid by the consumer and the creditor. Dodd-
Frank Act section 1419; TILA section 128(a)(18).
     Disclosure of total interest as a percentage of principal. 
Dodd-Frank Act section 1419; TILA section 128(a)(19).
     Optional disclosure of appraisal management company fees. 
Dodd-Frank Act section 1475; RESPA section 4(c).
    The TILA-RESPA Proposal provided for a bifurcated comment process. 
Comments regarding the proposed amendments to Sec.  1026.1(c) were 
required to have been received on or before September 7, 2012. For all 
other proposed amendments and comments pursuant to the Paperwork 
Reduction Act, comments were required to have been received on or 
before November 6, 2012.\141\
---------------------------------------------------------------------------

    \141\ In its initial Federal Register notice, the Bureau also 
applied the September 7, 2012 deadline to comments on the proposed 
amendments to the definition of finance charge in Sec.  1026.4. On 
August 31, 2012, however, the Bureau issued a notice extending the 
deadline for such comments to November 6, 2012. See the Bureau's 
blog post, More time for comments on proposed changes to the 
definition of the finance charge (August 31, 2012), available at 
http://www.consumerfinance.gov/blog/more-time-for-comments-on-proposed-changes-to-the-definition-of-the-finance-charge/. The 
extension was published in the Federal Register on September 6, 
2012. See 77 FR 54843 (Sept. 6, 2012). It did not change the comment 
period for any other aspects of the TILA-RESPA Proposal, which, as 
noted above, ended November 6, 2012.
---------------------------------------------------------------------------

    Affected Title XIV Disclosures. As described above, the Affected 
Title XIV Disclosures impose certain new disclosure requirements for 
mortgage transactions. Section 1400(c)(3) of the Dodd-Frank Act \142\ 
provides that, if regulations implementing the Affected Title XIV 
Disclosures are not issued on the date that is 18 months after the 
designated transfer date (i.e., by January 21, 2013), the statutory 
requirements will take effect on that date.
---------------------------------------------------------------------------

    \142\ Codified at 15 U.S.C. 1601 note.
---------------------------------------------------------------------------

    The Bureau provided in the TILA-RESPA Proposal that it believed 
that implementing integrated disclosures that satisfy the applicable 
sections of TILA and RESPA and the Affected Title XIV Disclosures would 
benefit consumers and facilitate compliance for industry with TILA and 
RESPA. The Bureau provided further that consumers would benefit from a 
consolidated

[[Page 79752]]

disclosure that conveys loan terms and costs to consumers in a 
coordinated way, and industry would benefit by integrating two sets of 
overlapping disclosures into a single form and by avoiding regulatory 
burden associated with revising systems and practices multiple times. 
77 FR 51116, 51133.
    However, given the broad scope and complexity of TILA-RESPA 
Proposal and the 120-day comment period provided, the Bureau stated 
that it believed a final rule would not be issued by January 21, 2013. 
The Bureau was concerned that absent a final rule implementing the 
Affected Title XIV Disclosures, institutions would have to comply with 
those disclosures beginning January 21, 2013 due to the statutory 
requirement that any section of Dodd-Frank Act title XIV for which 
regulations have not been issued by January 21, 2013 are self-
effectuating as of that date. The Bureau stated that this likely would 
result in widely varying approaches to compliance in the absence of 
regulatory guidance, creating confusion for consumers, and would impose 
a significant burden on industry. For example, this could result in a 
consumer who shops for a mortgage loan receiving different disclosures 
from different creditors. The Bureau noted that it believed such 
disclosures would not only be unhelpful to consumers, but likely would 
be confusing since the same disclosures would be provided in widely 
different ways, and, moreover, implementing the Affected Title XIV 
Disclosures separately from the TILA-RESPA integrated disclosures would 
increase compliance costs and burdens on industry. The Bureau also 
noted in the TILA-RESPA Proposal that nothing in the Dodd-Frank Act 
itself or its legislative history suggests that Congress contemplated 
how the separate requirements in titles X and XIV would work 
together.\143\
---------------------------------------------------------------------------

    \143\ As the Bureau stated in the TILA-RESPA Proposal, certain 
of the Affected Title XIV Disclosures indicate that Congress did not 
intend for those disclosure requirements and the TILA-RESPA 
integrated disclosures to operate independently. For example, Dodd-
Frank Act section 1419 amended paragraphs (a)(16) through (19) of 
TILA section 128 to require additional content on the disclosure 
provided to consumers within three days of application and in final 
form at or before consummation. 15 U.S.C. 1638(a)(16) through (19). 
Pursuant to TILA section 128(b)(1), for residential mortgage 
transactions, all disclosures required by TILA section 128(a) must 
be ``conspicuously segregated'' from all other information provided 
in connection with the transaction. 15 U.S.C. 1638(b)(1). Therefore, 
the Bureau stated that these sections are directly implicated by the 
integrated TILA-RESPA requirement. 77 FR 51116, 51133.
---------------------------------------------------------------------------

    Accordingly, in the TILA-RESPA Proposal, the Bureau proposed to 
implement the Affected Title XIV Disclosures for purposes of Dodd-Frank 
Act section 1400(c) by providing a temporary exemption from the 
requirement to comply with such requirements until the TILA-RESPA 
integrated disclosure requirements become effective.\144\ The Bureau 
proposed the temporary exemption pursuant to the Bureau's authority 
under TILA section 105(a), RESPA section 19(a), Dodd-Frank Act section 
1032(a) and, for residential mortgage loans, Dodd-Frank Act section 
1405(b). 15 U.S.C. 1604(a); 12 U.S.C. 2617(a); 12 U.S.C. 5532(a); 15 
U.S.C. 1601 note. The Bureau explained that fully implementing the 
Affected Title XIV Disclosures as part of the broader integrated TILA-
RESPA rulemaking, rather than issuing rules implementing each 
requirement individually or allowing those statutory provisions to take 
effect by operation of law, will improve the overall effectiveness of 
the integrated disclosures for consumers and reduce burden on industry. 
The proposed exemption would be, in effect, a delay of the effective 
date of the Affected Title XIV Disclosures.
---------------------------------------------------------------------------

    \144\ Id.
---------------------------------------------------------------------------

    The Bureau proposed to delay the Affected Title XIV Disclosures for 
all transactions to which they would otherwise apply, including to 
transactions not covered by the proposed integrated disclosure 
provisions, including open-end credit plans, transactions secured by 
dwellings that are not real property, and reverse mortgages. The Bureau 
specifically solicited comment on the exemption's scope and on whether 
the exemption should sunset on a specific date instead of upon the 
effective date of the final rule for the integrated disclosures.
    Other Title XIV Disclosures. The Bureau proposed to exclude the 
following Title XIV Disclosures from the list of Affected Title XIV 
Disclosures in the TILA-RESPA Proposal, stating they would be 
implemented in separate rulemakings:
     Disclosure regarding notice of reset of hybrid adjustable 
rate mortgage. Dodd-Frank Act section 1418(a); TILA section 128A(b).
     Loan originator identifier requirement. Dodd-Frank section 
1402(a)(2); TILA section 129B(b)(1)(B).
     Consumer notification regarding appraisals for higher-risk 
mortgages. Dodd-Frank Act section 1471; TILA section 129H(d).
     Consumer notification regarding the right to receive an 
appraisal copy. Dodd-Frank Act section 1474; ECOA section 701(e)(5).
     Post-Consummation Escrow Cancellation Disclosure. Dodd-
Frank Act section 1462; TILA section 129D(j)(1)(B).
    The Bureau stated generally that these disclosures were expected to 
be proposed separately in the summer of 2012 and finalized by January 
21, 2013, except for the Post-Consummation Escrow Cancellation 
Disclosure which the Board had already proposed for comment in its 2011 
Escrows Proposal.\145\
---------------------------------------------------------------------------

    \145\ 77 FR 51116, 51134.
---------------------------------------------------------------------------

    As such, the Bureau proposed, as part of the TILA-RESPA Proposal, 
to provide a temporary exemption from compliance with the Pre-
Consummation Escrow Waiver Disclosure in TILA section 129D(j)(1)(A), 
but not for the Post-Consummation Escrow Cancellation Disclosure in the 
TILA-RESPA Proposal. Absent the Bureau's issuance of a final rule 
implementing TILA section 129D(j)(1)(B) by January 21, 2013, the 
provision would have gone into effect as of such date by operation of 
law under the Dodd-Frank Act section 1400(c)(3).\146\
---------------------------------------------------------------------------

    \146\ As described under part IV below, the Bureau considers an 
exemption from the disclosure requirement under TILA section 
129D(j)(1)(B), such as that proposed in the TILA-RESPA Proposal for 
the Affected Title XIV Disclosures, to be the issuance of a 
regulation implementing that provision for purposes of Dodd-Frank 
Act section 1400(c)(3).
---------------------------------------------------------------------------

Final Rule Delaying Certain Title XIV Disclosures
    On November 23, 2012, the Bureau issued a final rule delaying 
implementation of the Affected Title XIV Disclosures provisions and the 
Post-Consummation Escrow Cancellation Disclosure by providing an 
exemption in Sec.  1026.1(c) of Regulation Z for persons from these 
statutory disclosure requirements (2012 Title XIV Delay Final 
Rule).\147\ The Bureau issued the final rule implementing the Affected 
Title XIV Disclosures and the Post-Consummation Escrow Cancellation 
Disclosure prior to the statutory provisions becoming self-effectuating 
on January 21, 2013. Accordingly, persons were not required to comply 
with these statutory disclosure requirements beginning on January 21, 
2013, and are exempted from such requirements until such time as the 
Bureau removes the exemptions, which the Bureau is doing for certain 
transactions in this final rule.
---------------------------------------------------------------------------

    \147\ 77 FR 70105 (Nov. 23, 2012).
---------------------------------------------------------------------------

    The Bureau stated in the 2012 Title XIV Delay Final Rule that it 
believes that the exemption overall provides a benefit to consumers by 
facilitating a more effective, consolidated disclosure

[[Page 79753]]

scheme. Absent an exemption, the Affected Title XIV Disclosures and the 
Post-Consummation Escrow Cancellation Disclosure would have complicated 
and hindered the mortgage lending process because consumers would have 
received inconsistent disclosures and, likely, numerous additional 
pages of Federal disclosures that would not work together in a 
meaningful, synchronized way. The Bureau also stated it believed that 
the credit process could be more expensive and complicated if the 
Affected Title XIV Disclosures and the Post-Consummation Escrow 
Cancellation Disclosure had taken effect independent of the larger 
TILA-RESPA integration rulemaking because industry would be required to 
revise systems and practices multiple times. The Bureau also considered 
the status of mortgage borrowers in issuing the exemptions, and 
believes the exemption is appropriate to improve the informed use of 
credit. The Bureau stated it did not believe that the goal of consumer 
protection would be undermined by the exemption, because of the risk 
that layering the Affected Title XIV Disclosures and the Post-
Consummation Escrow Cancellation Disclosure on top of existing mandated 
disclosures would lead to consumer confusion. The Bureau stated in the 
2012 Title XIV Delay Final Rule that the exemption allows the Bureau to 
coordinate the changes in a way that improves overall consumer 
understanding of the disclosures.
    The Bureau also stated that although the Post-Consummation Escrow 
Cancellation Disclosure was not included in the Affected Title XIV 
Disclosures in the TILA-RESPA Proposal, the Bureau nevertheless 
received comment requesting that it delay implementation of the 
disclosure, as described above. Furthermore, as discussed above, the 
Board received similar requests from commenters on the Board's 2011 
Escrows Proposal, which on July 21, 2011 became the Bureau's 
responsibility. The Bureau considered the comments received by the 
Board and the Bureau and concluded that delaying implementation of the 
Post-Consummation Escrow Cancellation Disclosure and coordinating such 
implementation with that of the TILA-RESPA integrated disclosures was 
in the interest of industry and consumers alike. The Bureau noted that 
the Dodd-Frank Act statutory requirements for the content of the Pre-
Consummation Escrow Waiver Disclosure and the Post-Consummation Escrow 
Cancellation Disclosure are the same, and the Bureau tested language 
for the Pre-Consummation Escrow Waiver Disclosure at its consumer 
testing conducted in connection with the TILA-RESPA Proposal and 
proposed to integrate this disclosure into the Closing Disclosure 
(which integrates the final TILA disclosure and the RESPA settlement 
statement).\148\ The Bureau stated that implementing the Post-
Consummation Escrow Cancellation Disclosure along with the TILA-RESPA 
integrated disclosures will allow the Bureau to use feedback it has 
received from consumer testing conducted prior to the TILA-RESPA 
Proposal, the comments on the proposal, and any consumer testing 
conducted subsequent to the proposal to harmonize the content and 
format of the Post-Consummation Escrow Cancellation Disclosure, the 
Pre-Consummation Escrow Waiver Disclosure, and the TILA-RESPA 
integrated disclosures. The Bureau stated that consumers, therefore, 
would benefit from a more fully integrated and synchronized overall 
mortgage disclosure scheme, and industry would benefit from a more 
coordinated implementation of the overall mortgage disclosure scheme 
mandated by the Dodd-Frank Act and implemented by the Bureau.
---------------------------------------------------------------------------

    \148\ See Kleimann Testing Report.
---------------------------------------------------------------------------

    As discussed below in the section-by-section analysis of Sec.  
1026.1(c), the Bureau is now removing the exemptions for the Affected 
Title XIV Disclosures and the Post-Consummation Escrow Cancellation 
Disclosure in Sec.  1026.1(c) for the mortgage transactions for which 
this final rule implements those disclosures. Because Sec.  
1026.1(c)(5), as finalized in the 2012 Title XIV Delay Final Rule, 
exempts persons from the disclosure requirements of the Affected Title 
XIV Disclosures and the Post-Consummation Escrow Cancellation 
Disclosure, and comment 1(c)(5)-1 clarifies that the exemption is 
intended to be temporary, lasting only until regulations implementing 
the integrated disclosures required by sections 1032(f), 1098, and 
1100A of the Dodd-Frank Act become mandatory, the Bureau is amending 
Sec.  1026.1(c)(5) to revoke the temporary exemption for transactions 
subject to the TILA-RESPA Final Rule, but is retaining the exclusion 
for all other transactions subject to the statutory provisions for 
which requirements have not yet been implemented.

IV. Legal Authority

    The final rule was issued on November 20, 2013, in accordance with 
12 CFR 1074.1. The Bureau issued this final rule pursuant to its 
authority under TILA, RESPA, and the Dodd-Frank Act. On July 21, 2011, 
section 1061 of the Dodd-Frank Act transferred to the Bureau all of the 
HUD Secretary's consumer protection functions relating to RESPA.\149\ 
Accordingly, effective July 21, 2011, the authority of HUD to issue 
regulations pursuant to RESPA transferred to the Bureau. Section 1061 
of the Dodd-Frank Act also transferred to the Bureau the ``consumer 
financial protection functions'' previously vested in certain other 
Federal agencies, including the Board. The term ``consumer financial 
protection function'' is defined to include ``all authority to 
prescribe rules or issue orders or guidelines pursuant to any Federal 
consumer financial law, including performing appropriate functions to 
promulgate and review such rules, orders, and guidelines.'' \150\ Title 
X of the Dodd-Frank Act, including section 1061 of the Dodd-Frank Act, 
along with TILA, RESPA, and certain subtitles and provisions of title 
XIV of the Dodd-Frank Act, are Federal consumer financial laws.\151\ 
Accordingly, the Bureau has authority to issue regulations pursuant to 
TILA and RESPA, including the disclosure requirements added to those 
statutes by title XIV of the Dodd-Frank Act, as well as title X of the 
Dodd-Frank Act.
---------------------------------------------------------------------------

    \149\ Public Law 111-203, 124 Stat. 1376, section 1061(b)(7); 12 
U.S.C. 5581(b)(7).
    \150\ 12 U.S.C. 5581(a)(1).
    \151\ Dodd-Frank Act section 1002(14), 12 U.S.C. 5481(14) 
(defining ``Federal consumer financial law'' to include the 
``enumerated consumer laws'' and the provisions of title X of the 
Dodd-Frank Act); Dodd-Frank Act section 1002(12), 12 U.S.C. 5481(12) 
(defining ``enumerated consumer laws'' to include TILA and RESPA); 
Dodd-Frank section 1400(b), 15 U.S.C. 1601 note (defining 
``enumerated consumer laws'' to include certain subtitles and 
provisions of Title XIV).
---------------------------------------------------------------------------

A. The Integrated Disclosure Mandate

    Section 1032(f) of the Dodd-Frank Act requires that, ``[n]ot later 
than one year after the designated transfer date [of July 21, 2011], 
the Bureau shall propose for public comment rules and model disclosures 
that combine the disclosures required under [TILA] and sections 4 and 5 
of [RESPA], into a single, integrated disclosure for mortgage loan 
transactions covered by those laws, unless the Bureau determines that 
any proposal issued by the [Board] and [HUD] carries out the same 
purpose.'' 12 U.S.C. 5532(f). In addition, the Dodd-Frank Act amended 
section 105(b) of TILA and section 4(a) of RESPA to require the 
integration of the TILA disclosures and the disclosures required

[[Page 79754]]

by sections 4 and 5 of RESPA.\152\ The purpose of the integrated 
disclosure is to facilitate compliance with the disclosure requirements 
of TILA and RESPA, and to help the borrower understand the transaction 
by utilizing readily understandable language to simplify the technical 
nature of the disclosures. Dodd-Frank Act sections 1098, 1100A. The 
Dodd-Frank Act did not impose on the Bureau a deadline for issuing a 
final rule to implement the integrated disclosure requirements.
---------------------------------------------------------------------------

    \152\ Section 1100A of the Dodd-Frank Act amended TILA section 
105(b) to provide that the ``Bureau shall publish a single, 
integrated disclosure for mortgage loan transactions (including real 
estate settlement cost statements) which includes the disclosure 
requirements of this title in conjunction with the disclosure 
requirements of the Real Estate Settlement Procedures Act of 1974 
that, taken together, may apply to a transaction that is subject to 
both or either provisions of law.'' 15 U.S.C. 1604(b). Section 1098 
of the Dodd-Frank amended RESPA section 4(a) to require the Bureau 
to publish a ``single, integrated disclosure for mortgage loan 
transactions (including real estate settlement cost statements) 
which includes the disclosure requirements of this section and 
section 5, in conjunction with the disclosure requirements of the 
Truth in Lending Act that, taken together, may apply to a 
transaction that is subject to both or either provisions of law.'' 
12 U.S.C. 2603(a).
---------------------------------------------------------------------------

    Although Congress imposed this integrated disclosure requirement, 
it did not harmonize the underlying statutes. In particular, TILA and 
RESPA establish different timing requirements for disclosing mortgage 
credit terms and costs to consumers and require that those disclosures 
be provided by different parties. TILA generally requires that, within 
three business days of receiving the consumer's application and at 
least seven business days before consummation of certain mortgage 
transactions, creditors must provide consumers a good faith estimate of 
the costs of credit.\153\ TILA section 128(b)(2)(A); 15 U.S.C. 
1638(b)(2)(A). If the annual percentage rate that was initially 
disclosed becomes inaccurate, TILA requires creditors to redisclose the 
information at least three business days before consummation. TILA 
section 128(b)(2)(D); 15 U.S.C. 1638(b)(2)(D). These disclosures must 
be provided in final form at consummation. TILA section 
128(b)(2)(B)(ii); 15 U.S.C. 1638(b)(2)(B)(ii). RESPA also requires that 
the creditor or broker provide consumers with a good faith estimate of 
settlement charges no later than three business days after receiving 
the consumer's application. However, unlike TILA, RESPA requires that, 
at or before settlement, ``the person conducting the settlement'' 
(which may or may not be the creditor) provide the consumer with a 
statement that records all charges imposed upon the consumer in 
connection with the settlement. RESPA sections 4(b), 5(c); 12 U.S.C. 
2603(b), 2604(c).
---------------------------------------------------------------------------

    \153\ This requirement applies to extensions of credit that are 
both secured by a dwelling and subject to RESPA. TILA section 
128(b)(2)(A); 15 U.S.C. 1638(b)(2)(A).
---------------------------------------------------------------------------

    The Dodd-Frank Act did not reconcile these and other statutory 
differences. Therefore, to meet the Dodd-Frank Act's express 
requirement to integrate the disclosures required by TILA and RESPA, 
the Bureau must do so. Dodd-Frank Act section 1032(f), TILA section 
105(b), and RESPA section 4(a) provide the Bureau with authority to 
issue regulations that reconcile certain provisions of TILA and RESPA 
to carry out Congress' mandate to integrate the statutory disclosure 
requirements. For the reasons discussed in this notice, the Bureau is 
issuing regulations to carry out the requirements of Dodd-Frank Act 
section 1032(f), TILA section 105(b), and RESPA section 4(a).

B. Other Rulemaking and Exception Authorities

    The final rule also relies on the rulemaking and exception 
authorities specifically granted to the Bureau by TILA, RESPA, and the 
Dodd-Frank Act, including the authorities discussed below.
Truth in Lending Act
    TILA section 105(a). As amended by the Dodd-Frank Act, TILA section 
105(a), 15 U.S.C. 1604(a), directs the Bureau to prescribe regulations 
to carry out the purposes of TILA, and provides that such regulations 
may contain additional requirements, classifications, differentiations, 
or other provisions, and may provide for such adjustments and 
exceptions for all or any class of transactions, that the Bureau judges 
are necessary or proper to effectuate the purposes of TILA, to prevent 
circumvention or evasion thereof, or to facilitate compliance 
therewith. A purpose of TILA is ``to assure a meaningful disclosure of 
credit terms so that the consumer will be able to compare more readily 
the various credit terms available to him and avoid the uninformed use 
of credit.'' TILA section 102(a); 15 U.S.C. 1601(a). This stated 
purpose is informed by Congress' finding that ``economic stabilization 
would be enhanced and the competition among the various financial 
institutions and other firms engaged in the extension of consumer 
credit would be strengthened by the informed use of credit[.]'' TILA 
section 102(a). Thus, strengthened competition among financial 
institutions is a goal of TILA, achieved through the effectuation of 
TILA's purposes.
    Historically, TILA section 105(a) has served as a broad source of 
authority for rules that promote the informed use of credit through 
required disclosures and substantive regulation of certain practices. 
However, Dodd-Frank Act section 1100A clarified the Bureau's section 
105(a) authority by amending that section to provide express authority 
to prescribe regulations that contain ``additional requirements'' that 
the Bureau finds are necessary or proper to effectuate the purposes of 
TILA, to prevent circumvention or evasion thereof, or to facilitate 
compliance. This amendment clarified the Bureau's authority to exercise 
TILA section 105(a) to prescribe requirements beyond those specifically 
listed in the statute that meet the standards outlined in section 
105(a). The Dodd-Frank Act also clarified the Bureau's rulemaking 
authority over certain high-cost mortgages pursuant to section 105(a). 
As amended by the Dodd-Frank Act, TILA section 105(a) authority to make 
adjustments and exceptions to the requirements of TILA applies to all 
transactions subject to TILA, except with respect to the provisions of 
TILA section 129 \154\ that apply to the high-cost mortgages referred 
to in TILA section 103(bb), 15 U.S.C. 1602(bb).
---------------------------------------------------------------------------

    \154\ 15 U.S.C. 1639. TILA section 129 contains requirements for 
certain high-cost mortgages, established by the Home Ownership and 
Equity Protection Act (HOEPA), which are commonly called HOEPA 
loans.
---------------------------------------------------------------------------

    For the reasons discussed in this notice, the Bureau is issuing 
regulations to carry out the purposes of TILA, including such 
additional requirements, adjustments, and exceptions as, in the 
Bureau's judgment, are necessary and proper to carry out the purposes 
of TILA, prevent circumvention or evasion, or to facilitate compliance. 
In developing these aspects of the final rule pursuant to its authority 
under TILA section 105(a), the Bureau has considered the purposes of 
TILA, including ensuring meaningful disclosures, facilitating 
consumers' ability to compare credit terms, and helping consumers avoid 
the uninformed use of credit, and the findings of TILA, including 
strengthening competition among financial institutions and promoting 
economic stabilization.
    TILA section 105(f). Section 105(f) of TILA, 15 U.S.C. 1604(f), 
authorizes the Bureau to exempt from all or part of TILA all or part of 
any class of transactions, other than transactions involving any 
mortgage described in section 1602(aa) of TILA, for which the Bureau 
determines that TILA coverage does not provide a meaningful benefit to

[[Page 79755]]

consumers in the form of useful information or protection. In 
exercising this authority, the Bureau must consider the factors 
identified in section 105(f) of TILA and publish its rationale at the 
time it proposes an exemption for public comment. Specifically, the 
Bureau must consider:
    (a) The amount of the loan and whether the disclosures, right of 
rescission, and other provisions provide a benefit to the consumers who 
are parties to such transactions, as determined by the Bureau;
    (b) The extent to which the requirements of this subchapter 
complicate, hinder, or make more expensive the credit process for the 
class of transactions;
    (c) The status of the borrower, including--
    (1) Any related financial arrangements of the borrower, as 
determined by the Bureau;
    (2) The financial sophistication of the borrower relative to the 
type of transaction; and
    (3) The importance to the borrower of the credit, related 
supporting property, and coverage under this subchapter, as determined 
by the Bureau;
    (d) Whether the loan is secured by the principal residence of the 
consumer; and
    (e) Whether the goal of consumer protection would be undermined by 
such an exemption.
    For the reasons discussed in this notice, the Bureau is issuing 
regulations that exempt certain classes of transactions from the 
requirements of TILA pursuant to its authority under TILA section 
105(f). In developing this final rule under TILA section 105(f), the 
Bureau has considered the relevant factors, published its rationale in 
the proposed rule, and determined that the exemptions are appropriate.
    TILA section 129B(e). Dodd-Frank Act section 1405(a) amended TILA 
to add new section 129B(e), 15 U.S.C. 1639B(e). That section authorizes 
the Bureau to prohibit or condition terms, acts, or practices relating 
to residential mortgage loans that the Bureau finds to be abusive, 
unfair, deceptive, predatory, necessary, or proper to ensure that 
responsible, affordable mortgage credit remains available to consumers 
in a manner consistent with the purposes of sections 129B and 129C of 
TILA, necessary or proper to effectuate the purposes of sections 129B 
and 129C of TILA, to prevent circumvention or evasion thereof, or to 
facilitate compliance with such sections, or are not in the interest of 
the borrower. In developing rules under TILA section 129B(e), the 
Bureau has considered whether the rules are in the interest of the 
borrower, as required by the statute. For the reasons discussed in this 
notice, the Bureau is issuing portions of this rule pursuant to its 
authority under TILA section 129B(e).
Real Estate Settlement Procedures Act
    Section 19(a) of RESPA, 12 U.S.C. 2617(a), authorizes the Bureau to 
prescribe such rules and regulations and to make such interpretations 
and grant such reasonable exemptions for classes of transactions as may 
be necessary to achieve the purposes of RESPA. One purpose of RESPA is 
to effect certain changes in the settlement process for residential 
real estate that will result in more effective advance disclosure to 
home buyers and sellers of settlement costs. RESPA section 2(b); 12 
U.S.C. 2601(b). In addition, in enacting RESPA, Congress found that 
consumers are entitled to be ``provided with greater and more timely 
information on the nature and costs of the settlement process and [to 
be] protected from unnecessarily high settlement charges caused by 
certain abusive practices in some areas of the country.'' RESPA section 
2(a); 12 U.S.C. 2601(a). In the past, RESPA section 19(a) has served as 
a broad source of authority to prescribe disclosures and substantive 
requirements to carry out the purposes of RESPA.
    In developing rules under RESPA section 19(a), the Bureau has 
considered the purposes of RESPA, including to effect certain changes 
in the settlement process that will result in more effective advance 
disclosure of settlement costs. For the reasons discussed in this 
notice, the Bureau is issuing portions of this rule pursuant to its 
authority under RESPA section 19(a).
Dodd-Frank Act
    Dodd-Frank Act section 1021. Section 1021(a) of the Dodd-Frank Act 
provides that the Bureau shall seek to implement and, where applicable, 
enforce Federal consumer financial law consistently for the purpose of 
ensuring that all consumers have access to markets for consumer 
financial services and that markets for consumer financial products and 
services are fair, transparent, and competitive. 12 U.S.C. 5511(a). In 
addition, section 1021(b) of the Dodd-Frank Act provides that the 
Bureau is authorized to exercise its authorities under Federal consumer 
financial law for the purposes of ensuring that, among other things, 
with respect to consumer financial products and services: (1) Consumers 
are provided with timely and understandable information to make 
responsible decisions about financial transactions; (2) consumers are 
protected from unfair, deceptive, or abusive acts and practices and 
from discrimination; (3) outdated, unnecessary, or unduly burdensome 
regulations are regularly identified and addressed in order to reduce 
unwarranted regulatory burdens; (4) Federal consumer financial law is 
enforced consistently, without regard to the status of a person as a 
depository institution, in order to promote fair competition; and (5) 
markets for consumer financial products and services operate 
transparently and efficiently to facilitate access and innovation. 12 
U.S.C. 5511(b). Accordingly, in developing this final rule, the Bureau 
has sought to ensure that it is consistent with the purposes of Dodd-
Frank Act section 1021(a) and with the objectives of Dodd-Frank Act 
section 1021(b), specifically including Dodd-Frank Act section 
1021(b)(1) and (3).
    Dodd-Frank Act section 1022(b). Section 1022(b)(1) of the Dodd-
Frank Act authorizes the Bureau to prescribe rules ``as may be 
necessary or appropriate to enable the Bureau to administer and carry 
out the purposes and objectives of the Federal consumer financial laws, 
and to prevent evasions thereof.'' 12 U.S.C. 5512(b)(1). Section 
1022(b)(2) of the Dodd-Frank Act prescribes certain standards for 
rulemaking that the Bureau must follow in exercising its authority 
under section 1022(b)(1). 12 U.S.C. 5512(b)(2). As discussed above, 
TILA and RESPA are Federal consumer financial laws. Accordingly, in 
adopting this final rule, the Bureau is exercising its authority under 
Dodd-Frank Act section 1022(b) to prescribe rules under TILA, RESPA, 
and Title X that carry out the purposes and objectives and prevent 
evasion of those laws. See part VII for a discussion of the Bureau's 
standards for rulemaking under Dodd-Frank Act section 1022(b)(2).
    Dodd-Frank Act section 1032. Section 1032(a) of the Dodd-Frank Act 
provides that the Bureau ``may prescribe rules to ensure that the 
features of any consumer financial product or service, both initially 
and over the term of the product or service, are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances.'' 12 
U.S.C. 5532(a). The authority granted to the Bureau in section 1032(a) 
is broad, and empowers the Bureau to prescribe rules regarding the 
disclosure of the ``features'' of consumer financial products and 
services generally.

[[Page 79756]]

Accordingly, the Bureau may prescribe rules containing disclosure 
requirements even if other Federal consumer financial laws do not 
specifically require disclosure of such features.
    Dodd-Frank Act section 1032(c) provides that, in prescribing rules 
pursuant to section 1032, the Bureau ``shall consider available 
evidence about consumer awareness, understanding of, and responses to 
disclosures or communications about the risks, costs, and benefits of 
consumer financial products or services.'' 12 U.S.C. 5532(c). 
Accordingly, in developing the final rule under Dodd-Frank Act section 
1032(a), the Bureau has considered available studies, reports, and 
other evidence about consumer awareness, understanding of, and 
responses to disclosures or communications about the risks, costs, and 
benefits of consumer financial products or services. See parts II and 
III, above. Moreover, the Bureau has considered the evidence developed 
through its consumer testing of the integrated disclosures as well as 
prior testing done by the Board and HUD regarding TILA and RESPA 
disclosures. See part III for a discussion of the Bureau's consumer 
testing. For the reasons discussed in this notice, the Bureau is 
issuing portions of this rule pursuant to its authority under Dodd-
Frank Act section 1032(a).
    In addition, Dodd-Frank Act section 1032(b)(1) provides that ``any 
final rule prescribed by the Bureau under this [section 1032] requiring 
disclosures may include a model form that may be used at the option of 
the covered person for provision of the required disclosures.'' 12 
U.S.C. 5532(b)(1). Any model form issued pursuant to that authority 
shall contain a clear and conspicuous disclosure that, at a minimum, 
uses plain language that is comprehensible to consumers, contains a 
clear format and design, such as an easily readable type font, and 
succinctly explains the information that must be communicated to the 
consumer. Dodd-Frank Act 1032(b)(2); 12 U.S.C. 5532(b)(2). As discussed 
in the section-by-section analyses of Sec. Sec.  1026.37(o) and 
1026.38(t), the final rule contains certain model disclosures for 
transactions subject only to TILA, and not both TILA and RESPA. For the 
reasons discussed in this notice, the Bureau is issuing these model 
disclosures pursuant to its authority under Dodd-Frank Act section 
1032(b).
    Dodd-Frank Act section 1405(b). Section 1405(b) of the Dodd-Frank 
Act provides that, ``[n]otwithstanding any other provision of [title 14 
of the Dodd-Frank Act], in order to improve consumer awareness and 
understanding of transactions involving residential mortgage loans 
through the use of disclosures, the Bureau may, by rule, exempt from or 
modify disclosure requirements, in whole or in part, for any class of 
residential mortgage loans if the Bureau determines that such exemption 
or modification is in the interest of consumers and in the public 
interest.'' 15 U.S.C. 1601 note. Section 1401 of the Dodd-Frank Act, 
which amends TILA section 103(cc)(5), 15 U.S.C. 1602(cc)(5), generally 
defines a residential mortgage loan as any consumer credit transaction 
that is secured by a mortgage on a dwelling or on residential real 
property that includes a dwelling other than an open-end credit plan or 
an extension of credit secured by a consumer's interest in a timeshare 
plan. Notably, the authority granted by section 1405(b) applies to 
``disclosure requirements'' generally, and is not limited to a specific 
statute or statutes. Accordingly, Dodd-Frank Act section 1405(b) is a 
broad source of authority to exempt from or modify the disclosure 
requirements of TILA and RESPA.
    In developing rules for residential mortgage loans under Dodd-Frank 
Act section 1405(b), the Bureau has considered the purposes of 
improving consumer awareness and understanding of transactions 
involving residential mortgage loans through the use of disclosures, 
and the interests of consumers and the public. For the reasons 
discussed in this notice, the Bureau is issuing portions of this rule 
pursuant to its authority under Dodd-Frank Act section 1405(b).

V. Section-by-Section Analysis of the Final Rule

    Integrated mortgage disclosure requirements implemented in 
Regulation Z. The Bureau is adopting its proposal to implement this 
final rule in Regulation Z. TILA's mortgage disclosure requirements are 
currently implemented in Regulation Z, whereas RESPA's mortgage 
disclosure requirements are currently implemented in Regulation X. 
Regulation Z contains detailed regulations and official interpretations 
regarding disclosures for mortgage transactions, whereas Regulation X 
largely relies on the RESPA GFE and RESPA settlement statement forms 
and their instructions. The Bureau proposed to establish the integrated 
disclosure requirements in Regulation Z, because it believed that the 
additional detail in Regulation Z facilitates industry's 
compliance.\155\ The proposal included conforming and other amendments 
to Regulation X.\156\
---------------------------------------------------------------------------

    \155\ For example, the small financial service providers who 
advised the Small Business Review Panel stated that ambiguity in the 
application or interpretation of the current RESPA disclosure 
requirements produces substantial costs in the form of legal fees, 
staff training, and, for settlement agents, preparing forms 
differently for different lenders. To address this concern, these 
providers generally requested that the Bureau provide clear guidance 
on how to fill out the forms, similar to that currently provided in 
Regulation Z. See Small Business Review Panel Report at 19-20. In 
addition, the rules and forms adopted in this final rule are 
intended to meet the requirements of sections 1032(f), 1098, and 
1100A of the Dodd-Frank Act that require the Bureau to combine the 
disclosures under TILA and sections 4 and 5 of RESPA into a single, 
integrated disclosure for mortgage loan transactions. 12 U.S.C. 
5532(f), 12 U.S.C. 2603, 15 U.S.C. 1604.
    \156\ The Bureau is proposing to retain established regulatory 
terminology in Regulations X and Z for consistency, such as using 
the term ``borrower'' in Regulation X and ``consumer'' in Regulation 
Z.
---------------------------------------------------------------------------

    However, the Bureau solicited comment on whether the level of 
detail in the proposed regulations and official interpretations 
(including the number of examples illustrating what is and is not 
permitted) will make compliance more burdensome and whether the Bureau 
should adopt a less prescriptive approach in the final rule. While most 
industry commenters requested that the Bureau add additional detail and 
illustrations to specific provisions of the final rule, as described in 
their respective section-by-section analyses, some commenters 
criticized the level of detail and illustrations in the proposal.
    One regional trade association representing credit unions suggested 
that the Bureau adopt a less prescriptive approach and issue a notice 
of final rulemaking of a shorter length than the Bureau's notice of 
proposed rulemaking. One individual industry commenter stated that the 
Bureau's final rule should only State the regulatory requirements and 
not include further explanations or guidance; however, the commenter 
also provided suggestions for specific guidance and clarifications to 
include in the final rule. Another individual industry commenter stated 
that the regulations were not well written, and suggested that the 
final rule should instruct a software programmer or data entry employee 
on how to complete the disclosures. An individual consumer commenter 
stated that the proposal had overly extensive guidance.
    As noted above, most industry commenters requested additional 
detail and clarifications in specific provisions of the final rule. In 
addition, some industry commenters commented generally on the level of 
detail. Some commenters specifically stated that the level of detail 
would be beneficial to industry. For example, a title insurance company 
commenter stated that, while

[[Page 79757]]

the level of detail in the proposed regulations and guidance may 
initially make compliance more burdensome, over the longer term the 
level of detail will make compliance less burdensome by addressing many 
situations that will arise and providing guidance and analogies for 
handling other situations that are not expressly addressed. The 
commenter also stated that the level of detail will foster greater 
industry-wide consistency in the implementation of the rule and will 
help prevent increased costs of compliance consulting which can result 
from a less detailed approach. In addition, several other industry 
commenters stated that clear guidance was important for industry, and 
suggested that the proposal's level of detail is preferred. Many 
commenters requested still more clarifying examples and guidance with 
respect to various provisions of the integrated disclosures, as 
discussed in more detail in relation to the applicable sections below.
    In light of the benefits cited by commenters from the level of 
detail in the proposal and requests for additional guidance and 
clarifications, as well as the feedback the Bureau received from the 
Small Business Review Panel regarding the costs faced by small entities 
from the ambiguity in the current rules and requests for clear guidance 
in the final rule, the Bureau has determined to maintain a similar 
level of detail in the final rule as in the proposal, and to provide 
additional guidance and clarifying examples where appropriate.\157\ The 
Bureau believes that the level of detail and guidance in the final rule 
will facilitate compliance with the disclosure requirements of TILA and 
RESPA, which is one of the purposes of the integrated disclosures set 
forth by the Dodd-Frank Act. See Dodd-Frank Act sections 1098 and 
1100A.
---------------------------------------------------------------------------

    \157\ See Small Business Review Panel Report at 19-20.
---------------------------------------------------------------------------

    Liability. TILA provides for a private right of action, with 
statutory damages for some violations, whereas RESPA does not provide a 
private right of action related to the RESPA GFE and RESPA settlement 
statement requirements. Some industry commenters expressed concern that 
if the final rule implements the combined disclosure requirements in 
Regulation Z, consumers would bring lawsuits seeking TILA's remedies 
for RESPA violations. These commenters, which included several trade 
associations, several title companies, two large banks, and a large 
non-bank lender, requested that the Bureau specify which provisions of 
the integrated disclosure rules relate to TILA requirements and which 
relate to RESPA requirements. One title industry trade association 
commenter suggested that the Bureau implement the TILA disclosure 
requirements in Regulation Z and the RESPA disclosure requirements in 
Regulation X to discourage litigation invoking TILA's liability scheme 
for RESPA violations.
    While the final regulations and official interpretations do not 
specify which provisions relate to TILA requirements and which relate 
to RESPA requirements, the section-by-section analysis of the final 
rule contains a detailed discussion of the statutory authority for each 
of the integrated disclosure provisions. As stated in part IV, above, 
the authority for the integrated disclosure provisions is based on 
specific disclosure mandates in TILA and RESPA, as well as certain 
rulemaking and exception authorities granted to the Bureau by TILA, 
RESPA, and the Dodd-Frank Act. The details of the Bureau's use of such 
authority are described in the section-by-section analysis. The Bureau 
believes these detailed discussions of the statutory authority for each 
of the integrated disclosure provisions provide sufficient guidance for 
industry, consumers, and the courts regarding the liability issues 
raised by the commenters.
    The Bureau does not believe that implementing the integrated 
disclosure requirements in two separate regulations is feasible. As 
noted in the proposed rule and in this part, the Bureau is implementing 
the integrated disclosure provisions in Regulation Z because it 
contains detailed regulations regarding disclosures for mortgage 
transactions, which facilitates compliance. The Bureau believes that an 
approach that places a portion of the integrated disclosure rules in 
Regulation Z and a portion in Regulation X would be unworkable and 
would ultimately result in compliance burden for industry with no 
apparent benefits for consumers.
    Scope of TILA and RESPA. As discussed in detail below with respect 
to proposed Sec.  1026.19, certain mortgage transactions that are 
subject to TILA are not subject to RESPA and vice versa. As proposed, 
the integrated mortgage disclosures would have applied to most closed-
end consumer credit transactions secured by real property. Certain 
types of loans that are currently subject to TILA but not RESPA 
(construction-only loans and loans secured by vacant land or by 25 or 
more acres) would have been subject to the proposed integrated 
disclosure requirements, whereas others (such as mobile home loans and 
other loans that are secured by a dwelling but not real property) would 
have remained solely subject to the existing Regulation Z disclosure 
requirements. Reverse mortgages were excluded from coverage of the 
proposed integrated disclosures and would therefore have remained 
subject to the current Regulation X and Z disclosure requirements until 
the Bureau addressed those unique transactions in a separate, future 
rulemaking. Finally, consistent with the current rules under TILA, the 
integrated mortgage disclosures would not have applied to mortgage 
loans made by persons who are not ``creditors'' as defined by 
Regulation Z (such as persons who make five or fewer mortgage loans in 
a year), although such loans would continue to be subject to RESPA.
    The Bureau is adopting the scope of the integrated disclosures as 
proposed as described in the section-by-section analysis for Sec.  
1026.19. Accordingly, reverse mortgage disclosures will continue to be 
governed by Regulation X. The Bureau proposed revisions to the 
disclosure provisions of Regulation X in light of this change in scope, 
as described in more detail below.

A. Regulation X

Section 1024.5 Coverage of RESPA
5(a) Applicability
    For the reasons discussed below under Sec.  1024.5(d), the Bureau 
proposed to use its authority under RESPA section 19(a) and, for 
residential mortgage loans, Dodd-Frank Act section 1405(b) to exempt 
certain transactions from the existing RESPA GFE and RESPA settlement 
statement requirements of Regulation X. The Bureau, therefore, proposed 
a conforming amendment to Sec.  1024.5(a) to reflect these partial 
exemptions pursuant to the same authority. The Bureau did not receive 
any comments on the proposed revisions to Sec.  1024.5(a) and is 
therefore adopting the revisions to Sec.  1024.5(a) as proposed, with a 
modification to reflect that proposed Sec.  1024.5(c) is being adopted 
as Sec.  1024.5(d), as discussed below.
5(b) Exemptions
5(b)(1)
    Section 1024.5(b)(1) currently exempts from the coverage of RESPA 
and Regulation X loans on property of 25 acres or more. The Bureau 
proposed to exercise its authority under RESPA section 19(a) and, for 
residential mortgage loans, Dodd-Frank Act section 1405(b) to eliminate 
this Regulation X exemption to render the TILA and RESPA regimes more 
consistent. The Bureau believed that most loans that fall

[[Page 79758]]

into this category are separately exempt under a provision excluding 
extensions of credit primarily for business, commercial, or 
agricultural purposes, set forth in Sec.  1024.5(b)(2). In addition, 
the Bureau believed that this consistency would have improved consumer 
awareness and understanding of transactions involving residential 
mortgage loans and, therefore, would have been in the interest of 
consumers and the public, consistent with Dodd-Frank Act section 
1405(b). Because it was unclear to the Bureau whether any mortgage 
loans are exempt based solely on Sec.  1024.5(b)(1), the Bureau 
solicited comment on the number of loans that may be affected by this 
aspect of the proposal and any reasons for the continued exemption of 
loans on property of 25 acres or more.
    One non-depository rural lender commenter stated that the exemption 
for loans on property of 25 acres or more should be retained because 
approximately 55 percent of its consumer purpose loans did not require 
a RESPA GFE and 61 percent of its closed-end consumer-purpose loans 
secured by real property did not require a RESPA settlement statement 
under this exemption. The commenter gave several examples of consumer 
purposes for these types of loans, such as loans financing the transfer 
of property interests pursuant to divorce settlements, cash-out 
refinancing for nursing home expenses for the borrowers themselves or 
their parents, and financing the purchase of second homes. Other 
commenters generally did not express opposition to the proposed 
elimination of the 25-acres-or-more exemption, but rather requested 
that the final rule reiterate that the test for coverage for the 
integrated disclosures should be whether the primary purpose of the 
loan is for consumer purposes. One industry State trade association 
stated that consumer purpose loans are structured the same whether 
secured by 24 or 25 acres or more and have similar costs, and 
therefore, their members generally do not object to providing the 
integrated disclosures to all consumer purpose loans secured by real 
property, regardless of property size. A title insurance company 
commenter agreed with the Bureau that there is no reason to retain the 
25-acres-or-more exemption because most of those loans would also be 
exempt under the exemption for business, commercial, or agricultural 
purposes.
    Generally, TILA has longstanding requirements for disclosures to be 
provided in connection with loans secured by real property. Dodd-Frank 
Act sections 1032(f), 1098, and 1100A directed the integration of the 
TILA and RESPA forms, implicitly authorizing the Bureau to harmonize 
statutory differences, as discussed above. The Bureau believes that 
consumers of closed-end credit transactions secured by real property of 
25 acres or more should obtain the integrated disclosures provided 
pursuant to Sec.  1026.19 below. In addition, Congress in section 
1032(a) of the Dodd-Frank Act authorized the Bureau to prescribe rules 
to ensure that the features of any consumer financial product or 
service are fully, accurately and effectively disclosed to consumers in 
a manner that permits consumers to understand the costs, benefits, and 
risks associated with the product or service. 12 U.S.C. 5532(a). The 
Bureau believes that consumers of consumer-purpose loans secured by 
property of 25 acres or more should obtain the integrated disclosures, 
as they would be just as useful to such consumers as to consumers of 
loans secured by smaller areas of real property. See section-by-section 
analysis of Sec.  1026.19 in general, below. The Bureau believes such 
disclosure is consistent with section 1032(a) of the Dodd-Frank Act. 
The Bureau therefore exercises its authority under Dodd-Frank Act 
section 1032(a), RESPA section 19(a) and, for residential mortgage 
loans, Dodd-Frank Act section 1405(b) to eliminate the exemption for 
loans secured by property of 25 acres or more in Sec.  1024.5(b)(1) of 
Regulation X. This amendment will render the TILA and RESPA regimes 
more consistent, which promotes more effective advance disclosure of 
settlement costs (which is a purpose of RESPA). In addition, this 
consistency will improve consumer awareness and understanding of 
transactions involving residential mortgage loans and is therefore in 
the interest of consumers and the public, consistent with Dodd-Frank 
Act section 1405(b).
5(d) Partial Exemptions for Certain Mortgage Loans
    The Bureau proposed Sec.  1024.5(c) to exempt creditors from 
certain RESPA requirements for loans subject to the integrated 
disclosure requirements and also certain federally related mortgage 
loans that satisfy specified criteria associated with certain housing 
assistance loan programs for low- and moderate-income persons. 
Specifically, creditors would be exempt from the requirement to provide 
the RESPA settlement cost booklet, RESPA GFE, RESPA settlement 
statement, and application servicing disclosure statement requirements 
of Sec. Sec.  1024.6, 1024.7, 1024.8, 1024.10, and 1024.21(b) and (c). 
The Bureau proposed this exemption under RESPA section 19(a), Dodd-
Frank Act section 1032(a) and, for residential mortgage loans, Dodd-
Frank Act section 1405(b). This proposed exemption would have cross-
referenced proposed Sec.  1026.3(h), which codifies an exemption issued 
by HUD on October 6, 2010. Under the HUD exemption, lenders need not 
provide the RESPA GFE and RESPA settlement statement when six 
prerequisites are satisfied: (1) The loan is secured by a subordinate 
lien; (2) the loan's purpose is to finance downpayment, closing costs, 
or similar homebuyer assistance, such as principal or interest 
subsidies, property rehabilitation assistance, energy efficiency 
assistance, or foreclosure avoidance or prevention; (3) interest is not 
charged on the loan; (4) repayment of the loan is forgiven or deferred 
subject to specified conditions; (5) total settlement costs do not 
exceed one percent of the loan amount and are limited to fees for 
recordation, application, and housing counseling; and (6) the loan 
recipient is provided at or before settlement with a written disclosure 
of the loan terms, repayment conditions, and costs of the loan.
    To facilitate compliance, the Bureau proposed to codify this 
exemption in Regulations X and Z for the same reasons and under the 
same authority as cited by HUD. Specifically, HUD invoked its authority 
under RESPA section 19(a) to grant ``reasonable exemptions for classes 
of transactions, as may be necessary to achieve the purposes of 
[RESPA].'' HUD determined that, for transactions meeting the criteria 
listed above, the RESPA GFE and RESPA settlement statement forms would 
be difficult to complete in a meaningful way and likely would confuse 
consumers who received them. Moreover, because of the limited, fixed 
fees involved with such transactions, the comparison shopping purpose 
of the RESPA GFE would not be achieved. Finally, the alternative 
written disclosure required as a prerequisite of the exemption would 
ensure that consumers understand the loan terms and settlement costs 
charged.
    In addition, the Bureau proposed this exemption based on its 
authority under Dodd-Frank Act section 1405(b) because the Bureau 
believed the proposed exemption would improve consumer awareness and 
understanding of residential mortgage loan transactions of the type 
discussed above and therefore would be in the interest of consumers and 
the public. These exemptions would have created consistency with the 
proposed integrated disclosure requirements under Regulation Z and 
codified a disclosure exemption

[[Page 79759]]

previously granted by HUD. However, the exemptions would have retained 
coverage of affected loans for all other requirements of Regulation X, 
such as provisions implementing the servicing requirements in RESPA 
section 6 (other than the application servicing disclosure statement), 
prohibitions on referral fees and kickbacks in RESPA section 8, and 
limits on amounts to be deposited in escrow accounts in RESPA section 
10.
    The Bureau did not receive any comments on proposed Sec.  
1024.5(c). However, the Bureau adopted a regulation on July 10, 2013 
that added Sec.  1024.5(c) concerning RESPA's relation to State laws. 
78 FR 44686 (July 24, 2013).\158\ Accordingly, the Bureau adopts 
proposed Sec.  1024.5(c) without modification but renumbered as Sec.  
1024.5(d).
---------------------------------------------------------------------------

    \158\ The regulation recodified the provisions of Sec.  1024.13 
as Sec.  1024.5(c) in order to clarify the application of State law 
provisions concerning the servicing of mortgage loans in the context 
of RESPA. See 78 FR 44686, 44689-90 (July 24, 2013).
---------------------------------------------------------------------------

Section 1024.30 Scope
30(c) Scope of Certain Sections
    The Bureau is adopting a modification to Sec.  1024.30(c) to 
clarify that the servicing disclosure statement requirement of Sec.  
1024.33(a) only applies to reverse mortgage transactions, for the 
reasons discussed in relation to the section-by-section analysis of 
Sec.  1024.33(a) below.
Section 1024.33 Mortgage Servicing Transfers
33(a) Servicing Disclosure Statement
    In the Bureau's 2012 RESPA Mortgage Servicing Proposal, the Bureau 
proposed to limit the scope of the servicing disclosure statement to 
closed-end reverse mortgage transactions to conform Sec.  1024.33(a) to 
the comprehensive amendments to consumer mortgage disclosures proposed 
by the Bureau in the TILA-RESPA Proposal. Because the Bureau intended 
to incorporate the servicing disclosure statement requirements of RESPA 
section 6(a) into the consolidated disclosure forms for the TILA-RESPA 
Proposal, the Bureau had proposed to limit the scope of the servicing 
disclosure statement provisions in new Sec.  1024.33 to closed-end 
reverse mortgage transactions because those transactions would not be 
covered by the TILA-RESPA Proposal.
    After additional consideration, because the TILA-RESPA Proposal 
would not be finalized until after the 2013 RESPA Mortgage Servicing 
Final Rule became effective, in the 2013 RESPA Mortgage Servicing Final 
Rule the Bureau decided not to finalize the language in proposed Sec.  
1024.33(a) that would have limited the scope of the provision to 
closed-end reverse mortgage transactions. Instead, the Bureau finalized 
Sec.  1024.33(a) by conforming the scope to ``mortgage loans'' other 
than subordinate-lien mortgage loans, as discussed in the section-by-
section analysis of Sec.  1024.30(c) of the 2013 RESPA Mortgage 
Servicing Final Rule. Accordingly, in the 2013 RESPA Mortgage Servicing 
Final Rule, the Bureau added language to Sec.  1024.33(a) so that 
applicants for ``first-lien mortgage loans'' must receive the servicing 
disclosure statement, as indicated at Sec.  1024.30(c)(1). Thus, 
applicants for both reverse and forward mortgage loans must receive 
currently the servicing disclosure statement under Regulation X.
    Because the Bureau has incorporated the servicing disclosure 
statement under RESPA section 6(a) into the Loan Estimate, as described 
in the section-by-section analysis of Sec.  1026.37(m) below, the 
Bureau is adopting in this final rule an amendment to Sec.  1024.33(a), 
which limits the requirement to provide the servicing disclosure 
statement to reverse mortgage transactions. The Bureau intends this 
amendment to reflect the requirement that the Loan Estimate include the 
servicing disclosure statement under Sec.  1026.37(m)(6) for 
transactions subject to Sec.  1026.19(e), thereby eliminating a 
duplicative disclosure requirement.
Appendix A--Instructions for Completing HUD-1 and HUD-1A Settlement 
Statements; Sample HUD-1 and HUD-1A Statements
    The Bureau proposed to require creditors to use the integrated 
Closing Disclosure required by Sec. Sec.  1026.19(f) and 1026.38 to 
satisfy the disclosure requirements under RESPA section 4 for closed-
end transactions covered by RESPA, except for reverse mortgage 
transactions. The Bureau recognized in the proposed rule that the 
manner in which reverse mortgage transactions are disclosed on the 
RESPA settlement statement (the HUD-1 or HUD-1A) under appendix A to 
Regulation X is a source of confusion for creditors and settlement 
agents. HUD attempted to clarify the use of the RESPA settlement 
statement in reverse mortgage transactions by issuing frequently-asked 
questions, the HUD RESPA FAQs, the most recent of which was released on 
April 2, 2010. The Bureau proposed to exercise its authority under 
RESPA section 19(a) to modify appendix A to Regulation X to incorporate 
the guidance provided by the HUD RESPA FAQs regarding reverse mortgage 
loans because, under the proposed rule, the closing of reverse mortgage 
transactions would have continued to be disclosed using the RESPA 
settlement statement. The proposed revisions would have been located in 
the instructions for lines 202, 204, and page 3, loan terms.
    The Bureau believed that incorporating this guidance into appendix 
A to Regulation X would have improved the effectiveness of the 
disclosures when used for reverse mortgages, thereby reducing industry 
confusion and advancing the purpose of RESPA to provide more effective 
advanced disclosure of settlement costs to both the borrower and the 
seller in the real estate transaction, consistent with RESPA section 
19(a).
    One industry trade association commenter supported the revisions 
related to proposed appendix A to Regulation X, but requested that 
compliance with the modifications be considered optional. The proposed 
changes to appendix A to Regulation X were intended merely to 
incorporate the existing disclosure requirements for reverse mortgage 
transactions as clarified by HUD in the HUD RESPA FAQs. The Bureau 
believes that making the revisions optional would detract from the 
intent of clarifying appendix A to Regulation X for reverse mortgage 
transactions and conflict with the purpose of RESPA to provide more 
effective advance disclosure of settlement costs. The Bureau did not 
receive any other comments related to proposed appendix A to Regulation 
X. Accordingly, the Bureau adopts the revisions to appendix A to 
Regulation X as proposed.
Appendix B--Illustrations of Requirements of RESPA
    Illustration 12 in appendix B to part 1024 provides a factual 
situation where a mortgage broker provides origination services to 
submit a loan to a lender for approval. The mortgage broker charges the 
borrower a uniform fee for the total origination services, as well as a 
direct up-front charge for reimbursement of credit reporting, appraisal 
services, or similar charges. To address this factual situation, 
illustration 12 provides a comment explaining that the mortgage 
broker's fee must be itemized in the RESPA GFE and on the RESPA 
settlement statement; other charges that are paid for by the borrower 
and paid in advance of consummation are listed as paid outside closing 
on the RESPA settlement statement and reflect the actual provider 
charge for such services;

[[Page 79760]]

and any other fee or payment received by the mortgage broker from 
either the lender or the borrower arising from the initial funding 
transaction, including a servicing release premium or yield spread 
premium, is to be noted on the RESPA GFE and listed in the 800 series 
of the RESPA settlement statement.
    Subsequent to the guidance provided in illustration 12, Regulation 
Z Sec.  1026.36(d)(2) was adopted. Section 1026.36(d)(2) states:

    If any loan originator receives compensation directly from a 
consumer in a consumer credit transaction secured by a dwelling: (i) 
No loan originator shall receive compensation, directly or 
indirectly, from any person other than the consumer in connection 
with the transaction; and (ii) No person who knows or has reason to 
know of the consumer-paid compensation to the loan originator (other 
than the consumer) shall pay any compensation to a loan originator, 
directly or indirectly, in connection with the transaction.

    The last sentence in illustration 12 clearly contemplates the loan 
originator, a mortgage broker, receiving compensation from the lender 
as well as the borrower, which therefore describes a factual situation 
prohibited by Sec.  1026.36(d)(2). Accordingly, for consistency with 
Sec.  1026.36(d)(2), the Bureau proposed to exercise its authority 
under RESPA section 19(a) to delete the last sentence of the comment 
provided in illustration 12 in appendix B to Regulation X.
    The Bureau did not receive any comments related to the proposed 
revision to appendix B to Regulation X. Accordingly, the Bureau adopts 
the revision to appendix B to Regulation X as proposed for the reasons 
stated above.
Appendix C--Instructions for Completing Good Faith Estimate (GFE) Form
    The Bureau proposed to require creditors to use the integrated Loan 
Estimate required by Sec. Sec.  1026.19(e) and 1026.37 to satisfy the 
disclosure requirements under RESPA section 5 for closed-end 
transactions covered by RESPA, except for reverse mortgage 
transactions. The Bureau recognized that the manner in which reverse 
mortgage transactions are disclosed on the RESPA GFE under appendix C 
to Regulation X is a source of confusion for creditors and other loan 
originators. HUD clarified the use of the RESPA GFE in reverse mortgage 
transactions in the HUD RESPA FAQs. The Bureau proposed to exercise its 
authority under RESPA section 19(a) to modify appendix C to Regulation 
X to incorporate the guidance provided by the HUD RESPA FAQs because, 
under the proposed rule, reverse mortgage transactions would have 
continued to be disclosed using the RESPA GFE. The proposed revisions 
would have been found in the instructions for the ``Summary of your 
loan'' and ``Escrow account information'' sections. The Bureau believed 
that these revisions would have satisfied the purpose of RESPA to 
provide more effective advance disclosure of settlement costs to both 
the consumer and the seller in the real estate transaction, consistent 
with RESPA section 19(a).
    One industry trade association commenter supported the changes 
related to proposed appendix C to Regulation X, but as with the 
proposed modifications to appendix A to Regulation X discussed above, 
requested that compliance with the modifications be considered 
optional. The proposed revisions to appendix C to Regulation X were 
intended merely to incorporate the existing disclosure requirements for 
reverse mortgage transactions, as clarified by HUD in the HUD RESPA 
FAQs. The Bureau believes that making the changes optional would 
detract from the intent of clarifying appendix C to Regulation X for 
reverse mortgage transactions and conflict with the purpose of RESPA to 
provide more effective advance disclosure of settlement costs.
    One industry commenter pointed out that as Regulation Z allows that 
delivery to one consumer is considered to be delivery for all consumers 
in a transaction, whereas Regulation X requires each applicant receive 
the GFE. The commenter suggested that Regulation X be amended so it 
follows the Regulation Z provision for delivery of the RESPA GFE. The 
proposed rule did not include any substantive modification to the 
delivery requirements of Regulation X. In addition, given the nature of 
a reverse mortgage transaction and the potential loss of a residence 
due to a termination event, the Bureau believes more analysis must be 
conducted, as stated above, before any modification of the disclosure 
requirements for reverse mortgages is proposed. The Bureau did not 
receive any other comments related to proposed appendix C to Regulation 
X. Accordingly, the Bureau adopts the revisions to appendix C to 
Regulation X as proposed.

B. Regulation Z

Section 1026.1 Authority, Purpose, Coverage, Organization, Enforcement, 
and Liability Statutory Scope
    In the TILA-RESPA Proposal, the Bureau proposed conforming 
amendments to Sec.  1026.1 to reflect the fact that, under the 
proposal, Regulation Z would implement not only TILA, but also certain 
provisions of RESPA. To reflect the expanded statutory scope of 
Regulation Z, the proposed conforming amendments would have revised 
Sec.  1026.1(a) (authority), (b) (purpose), (d)(5) (organization of 
subpart E), and (e) (enforcement and liability) to include references 
to the relevant provisions of RESPA.
    The Bureau did not receive comment on this aspect of the proposed 
rule. The Bureau adopted the proposed changes to Sec.  1026.1(a) in the 
2012 Title XIV Delay Final Rule that temporarily exempted creditors 
from implementing certain Dodd-Frank Act disclosure requirements 
pending the resolution of the broader rulemaking as discussed below. 
See 77 FR 70105, 70114 (Nov. 23, 2012). The Bureau is now finalizing 
Sec.  1026.1(b), (d)(5),\159\ and (e) as proposed, with a modification 
to Sec.  1026.1(b) for greater clarity and a technical change to Sec.  
1026.1(d)(5) to delete a reference to Sec.  1026.19(g).
---------------------------------------------------------------------------

    \159\ Section 1026.1(d)(5) was also amended by the Bureau's 2013 
HOEPA Final Rule to reflect the expanded scope of HOEPA under the 
Dodd-Frank Act. See 78 FR 6856, 6868 (Jan. 31, 2013). Those 
amendments will take effect on January 10, 2014.
---------------------------------------------------------------------------

1(c) Coverage
    The TILA-RESPA Proposal also would have provided a temporary 
exemption from certain disclosure requirements added to TILA and RESPA 
by the Dodd-Frank Act. Specifically, the proposal would have exempted 
persons temporarily from the disclosure requirements of sections 
128(a)(16) through (19), 128(b)(4), 129C(f)(1), 129C(g)(2) and (3), 
129C(h), 129D(h), and 129D(j)(1)(A) of TILA and section 4(c) of RESPA 
(collectively the Affected Title XIV Disclosures), until regulations 
implementing the integrated disclosures required by section 1032(f) of 
the Dodd-Frank Act take effect.\160\ Proposed Sec.  1026.1(c)(5) would 
have implemented this exemption by stating that no person is required 
to provide the disclosures required by the statutory provisions listed 
above. Proposed comment 1(c)(5)-1 would have explained that Sec.  
1026.1(c)(5) implements the above-listed provisions of TILA and RESPA

[[Page 79761]]

added by the Dodd-Frank Act by exempting persons from the disclosure 
requirements of those sections. The comment would have clarified that 
the exemptions provided in proposed Sec.  1026.1(c)(5) are intended to 
be temporary and will apply only until compliance with the regulations 
implementing the integrated disclosures required by section 1032(f) of 
the Dodd-Frank Act become mandatory. Proposed comment 1(c)(5)-1 also 
would have clarified that the exemptions in proposed Sec.  1026.1(c)(5) 
would not exempt any person from any other requirement of Regulation Z, 
Regulation X, or of TILA or RESPA.
---------------------------------------------------------------------------

    \160\ 15 U.S.C. 1638(a)(16)-(19), 1638(b)(4), 1639c(f)(1), 
1639c(g), 1639c(h), 1639d(h), and 1639d(j)(1)(A); 12 U.S.C. 2604(c); 
12 U.S.C. 5532(f).
---------------------------------------------------------------------------

    The Bureau recognized in the TILA-RESPA Proposal that the Affected 
Title XIV Disclosures varied in scope from, and in some cases were 
broader in scope than, the proposed integrated disclosures. For 
example, certain of the Affected Title XIV Disclosures apply to open-
end credit plans, transactions secured by dwellings that are not real 
property, and/or reverse mortgage transactions, which would not have 
been subject to the integrated disclosure requirements of the proposed 
rule. At the same time, because the final scope of the integrated 
disclosures was not known at the time of the proposal, the Bureau chose 
to delay the Affected Title XIV Disclosures to the fullest extent those 
requirements could apply under the statutory provisions. The Bureau 
sought comment on whether the final rule implementing the integrated 
disclosures should implement the Affected Title XIV Disclosures for 
transactions not covered by the integrated disclosures, including open-
end credit plans, transactions secured by dwellings other than real 
property, and reverse mortgages.
    The TILA-RESPA Proposal provided for a bifurcated comment process, 
with comments regarding the proposed amendments to Sec.  1026.1(c)(5) 
receiving a 60-day comment period and all other proposed provisions 
receiving a 120-day comment period. Pursuant to section 1400(c)(3) of 
the Dodd-Frank Act, if regulations implementing the Affected Title XIV 
Disclosures were not issued on the date that is 18 months after the 
designated date of transfer of TILA and RESPA rulewriting authority to 
the Bureau (i.e., by January 21, 2013), the statutory requirements 
would have taken effect on that date. In the TILA-RESPA Proposal, the 
Bureau stated its belief that implementing integrated disclosures that 
satisfy the applicable sections of TILA and RESPA, including the 
Affected Title XIV Disclosures, would benefit consumers and facilitate 
compliance for industry with TILA and RESPA. The Bureau also stated its 
belief that consumers would benefit from a consolidated disclosure that 
conveys loan terms and costs to consumers in a coordinated way and that 
industry would benefit by integrating two sets of overlapping 
disclosures into a single form and by avoiding regulatory burden 
associated with revising systems and practices multiple times. The 
Bureau was concerned that, absent a final rule implementing the 
exemptions, the self-executing statutory requirements would have 
resulted in widely varying approaches to compliance, thereby 
potentially creating confusion for consumers and imposing significant 
burden on industry.
    For the reasons cited in the TILA-RESPA Proposal, on November 16, 
2012, the Bureau issued the 2012 Title XIV Delay Final Rule, adopting, 
among other provisions, proposed Sec.  1026.1(c)(5), pursuant to its 
authority under and consistent with TILA section 105(a) and (f), RESPA 
section 19(a), Dodd-Frank Act section 1032(a), and, for residential 
mortgage loans, Dodd-Frank Act section 1405(b). See 77 FR 70105 (Nov. 
23, 2012). As finalized, Sec.  1026.1(c)(5) exempted persons from 
providing the Affected Title XIV Disclosures. The final rule extended 
the exemption to apply also to the Post-Consummation Escrow 
Cancellation Disclosure. The Bureau determined that extending the 
temporary exemption to the Post-Consummation Escrow Cancellation 
Disclosure would benefit consumers and industry after evaluating 
comments the Bureau received requesting that it delay implementation of 
the disclosure, as well as similar requests received by the Board in 
response to its 2011 Escrows Proposal. The final rule also adopted 
comment 1(c)(5)-1, which provided that the exemptions in Sec.  
1026.1(c)(5) are intended to be temporary and that the provision does 
not exempt any person from any other part of TILA, RESPA, or those 
statutes' implementing regulations. Because the Bureau did not receive 
any comments seeking to limit the scope of the proposed exemption, the 
temporary exemptions as adopted applied to all transactions subject to 
the Affected Title XIV Disclosures. The final rule took effect on 
November 23, 2012.\161\ Accordingly, the Affected Title XIV Disclosures 
and the Post-Consummation Escrow Cancellation Disclosure were 
implemented for purposes of Dodd-Frank Act section 1400(c)(3) by Sec.  
1026.1(c)(5) and did not take effect on January 21, 2013.
---------------------------------------------------------------------------

    \161\ Under section 553(d) of the Administrative Procedure Act 
(APA), the required publication or service of a substantive rule 
shall be made not less than 30 days before its effective date, 
except for (1) A substantive rule which grants or recognizes an 
exemption or relieves a restriction; (2) interpretative rules and 
statements of policy; or (3) as otherwise provided by the agency for 
good cause and published with the rule. 5 U.S.C. 553(d). The 
Bureau's final rule provided for a temporary exemption from the 
Affected Title XIV Disclosures and the Post-Consummation Escrow 
Cancellation Disclosure such that they would not become self-
effective on January 21, 2013, and instead would be required at the 
time the TILA-RESPA integrated disclosures become effective. 
Therefore, under section 553(d)(1) of the APA, the Bureau published 
the final rule less than 30 days before its effective date because 
it was a substantive rule which grants or recognizes an exemption or 
relieves a restriction. 5 U.S.C. 553(d)(1).
---------------------------------------------------------------------------

    The TILA-RESPA Final Rule implements the Affected Title XIV 
Disclosures and the Post-Consummation Escrow Cancellation Disclosure 
for consumer credit transactions secured by a first lien on a 
consumer's principal dwelling (other than a consumer credit transaction 
under an open-end credit plan or a reverse mortgage). The Bureau is now 
amending Sec.  1026.1(c)(5) to revoke the temporary exemption for 
transactions subject to the Affected Title XIV Disclosures and the 
Post-Consummation Escrow Cancellation Disclosure as implemented by the 
TILA-RESPA Final Rule: Sec.  1026.19(e) and (f) of the TILA-RESPA Final 
Rule implements sections 128(a)(16) through (19), 128(b)(4), 
129C(f)(1), 129C(g)(2) and (3), 129D(h), and 129D(j)(1)(A) of TILA; 
Sec.  1026.20(e) implements section 129D(j)(1)(B) of TILA; Sec.  
1026.39(d)(5) implements section 129C(h) of TILA; and section 4(c) of 
RESPA. Accordingly, the temporary exemption for those transactions that 
are subject to Sec.  1026.19(e) and (f) is no longer necessary. 
However, if the Bureau were to revoke the temporary exemption for all 
transactions that are not covered by the final rule, the Affected Title 
XIV Disclosures and the Post-Consummation Escrow Cancellation 
Disclosure would become required for open-end credit plans, 
transactions secured by dwellings that are not real property, and 
reverse mortgages.
    The Bureau received several comments from industry objecting to 
this result. For example, a national trade association representing the 
reverse mortgages industry commented in support of continuing to exempt 
reverse mortgages from the Affected Title XIV Disclosures. In addition, 
a national trade association representing banks and bank holding 
companies that provide retail financial services commented that the 
exemption should apply to the fullest extent provided under the 
statute, and not be limited to loans that are subject to the TILA-RESPA 
integrated

[[Page 79762]]

disclosures. The Bureau considered these comments, and was persuaded 
that the exemption should continue to apply for all other transactions 
subject to the statutory provisions for which requirements have not yet 
been implemented. Accordingly, the final rule provides that, except in 
transactions subject to the integrated disclosure requirements in Sec.  
1026.19(e) and (f), no person is required to provide the disclosures 
required by sections 128(a)(16) through (19), 128(b)(4), 129C(f)(1), 
129C(g)(2) and (3), 129D(h), or 129D(j)(1)(A) of TILA, section 4(c) of 
RESPA, or the disclosure required prior to settlement by section 
129C(h) of TILA. Final Sec.  1026.1(c)(5) also provides that, except in 
transactions subject to the Post-Consummation Escrow Cancellation 
Disclosure requirements in Sec.  1026.20(e), no person is required to 
provide the disclosures required by section 129D(j)(1)(B) of TILA. 
Lastly, the final rule provides that, except in transactions subject to 
the partial payment disclosure requirements in Sec.  1026.39(d)(5), no 
person becoming a creditor with respect to an existing residential 
mortgage loan is required to provide the disclosure required by section 
129C(h) of TILA.
    The Bureau is modifying comment 1(c)(5)-1 to clarify that the 
exemptions from the disclosure requirements only apply to certain 
mortgage transactions for which the disclosures are not otherwise 
implemented in Regulation Z. The comment sets forth a list of the 
transactions for which the disclosures are required under Regulation Z. 
The Bureau is no longer referring to the exemption as a temporary 
exemption in the commentary as that term was used primarily to refer to 
the transactions that would be subject to the integrated disclosure 
requirements under the TILA-RESPA Proposal.
    Specifically, the comment clarifies that Sec. Sec.  1026.37 and 
1026.38 implement sections 128(a)(16) through (19), 128(b)(4), 
129C(f)(1), 129C(g)(2) and (3), 129D(h), and 129D(j)(1)(A) of TILA and 
section 4(c) of RESPA for transactions subject to Sec.  1026.19(e) and 
(f). Section 1026.38(l)(5) implements the disclosure requirements of 
section 129C(h) of TILA for transactions subject to Sec.  1026.19(f), 
and Sec.  1026.39(d)(5) implements the disclosure requirements of 
section 129C(h) of TILA for transactions subject to Sec.  
1026.39(d)(5). Section 1026.20(e) implements the disclosure 
requirements of section 129D(j)(1)(B) of TILA for transactions subject 
to Sec.  1026.20(e).
    The details of the regulatory implementation of the statutory 
requirements are discussed below, under the applicable sections of 
Regulation Z. For a discussion of the Bureau's plans to implement 
integrated disclosures for open-end mortgage transactions, dwellings 
not secured by real property, and reverse mortgage transactions that 
are not covered by the TILA-RESPA Final Rule, see the section-by-
section analysis of Sec.  1026.19.
1(d) Organization
1(d)(5)
    As discussed in part I above, the Bureau is adopting rules and 
disclosures that combine the pre-consummation disclosure requirements 
of TILA and sections 4 and 5 of RESPA. The Dodd-Frank Act does not 
impose a deadline for issuing final rules and disclosures in connection 
with its mandate to integrate disclosure requirements or provide a 
specific amount of time for entities subject to those rules to come 
into compliance. As also discussed in part II.E above, the Dodd-Frank 
Act establishes two goals for the TILA-RESPA mortgage disclosure 
integration: to improve consumer understanding of mortgage loan 
transactions; and to facilitate industry compliance with TILA and 
RESPA. Dodd-Frank Act sections 1098 and 1100A. In addition, TILA 
section 105(d) generally provides that a regulation requiring any 
disclosure that differs from the disclosures previously required shall 
have an effective date no earlier than ``that October 1 which follows 
by at least six months the date of promulgation,'' except that the 
Bureau may at its discretion lengthen the period of time permitted for 
creditors or lessors to adjust their forms to accommodate new 
requirements. 15 U.S.C. 1604(d). The Bureau must balance these 
statutory objectives and requirements in considering the length of the 
implementation period.
    As described in part VI below, the final rule applies to 
transactions for which the creditor or mortgage broker receives an 
application on or after August 1, 2015, with the exception of new Sec.  
1026.19(e)(2), and the amendments to Sec.  1026.28(a)(1) and the 
commentary to Sec.  1026.29, which become effective on that date 
without respect to whether an application has been received on that 
date. The Bureau is adding comment 1(d)(5)-1 to provide clarity 
regarding the application of the effective date to transactions covered 
by the final rule. The comment summarizes the effective date, clarifies 
that Sec. Sec.  1026.19(e)(2), 1026.28, and comments 29(a)-2 and -4 in 
the final rule become effective on August 1, 2015, and sets forth 
examples to illustrate the application of the effective date for the 
final rule. The Bureau believes this comment will facilitate compliance 
with the final rule, which is one of the purposes of the integrated 
disclosures, as discussed above.
Section 1026.2 Definitions and Rules of Construction
2(a) Definitions
2(a)(3) Application
The Bureau's Proposal
    In the TILA-RESPA Proposal, the Bureau proposed to revise the 
current definition of the term ``application'' that applies to the 
RESPA GFE and early TILA disclosure. Under the final rule, receipt of 
an ``application'' triggers a creditor's obligation to provide the Loan 
Estimate within three business days. Specifically, the Bureau would 
have revised the definition of application to remove the seventh 
``catch-all'' element of the current definition under 12 CFR 1024.2(b), 
that is, ``any other information deemed necessary by the loan 
originator.'' The Bureau believed that deleting this element from the 
definition would enable consumers to receive the Loan Estimate earlier. 
The proposed definition would help ensure that consumers have 
information on the cost of credit while they have bargaining power to 
negotiate for better terms and time to compare other financing options.
    Currently, although neither TILA nor RESPA defines the term 
``application,'' section 1024.2(b) of Regulation X defines application 
as ``the submission of a borrower's financial information in 
anticipation of a credit decision relating to a federally related 
mortgage loan, which shall include the borrower's name, the borrower's 
monthly income, the borrower's social security number to obtain a 
credit report, the property address, an estimate of the value of the 
property, the mortgage loan amount sought, and any other information 
deemed necessary by the loan originator.'' 12 CFR 1024.2(b). Regulation 
Z does not define this term, but instead provides that creditors may 
rely on the Regulation X definition of application for purposes of the 
provision of the early TILA disclosure. See Sec.  1026.19(a)(1)(i) and 
comment 19(a)(1)(i)-3. The inclusion of the seventh ``catch-all'' 
element in the definition in Regulation X was adopted in response to, 
among other things, concerns that a narrow definition of 
``application'' might inhibit preliminary underwriting. HUD's 2008 
RESPA Final Rule, 73 FR 68210-11.
    The Bureau's proposed definition of application would have 
consisted of two parts. First, the Bureau proposed to add

[[Page 79763]]

Sec.  1026.2(a)(3)(i) to define application as the submission of a 
consumer's financial information for purposes of obtaining an extension 
of credit. This would have established a broad definition of 
application for all transactions covered by Regulation Z, not just 
closed-end mortgage loans. Second, the Bureau proposed to add Sec.  
1026.2(a)(3)(ii) to provide that an application consists of six pieces 
of information, except for purposes of subpart B (open-end loans), 
subpart F (student loans), and subpart G (special rules for credit card 
accounts and open-end credit offered to college students). The proposed 
six pieces of information were the consumer's name, income, social 
security number to obtain a credit report, the property address, an 
estimate of the value of the property, and the mortgage loan amount 
sought. The Bureau stated in the proposal that these items of 
information had an established significance in the context of closed-
end loans secured by real property, but could be less significant or 
even inapplicable to other types of credit. Thus, this definition 
limiting the term application to collection of these six pieces of 
information would not have been applied to subpart B, subpart F, and 
subpart G.
    Proposed comment 2(a)(3)-1 would have explained that the submission 
may be in written or electronic format and includes a written record of 
an oral application. The proposed comment would have also explained 
that the definition does not prevent a creditor from collecting 
whatever additional information it deems necessary in connection with 
the request for the extension of credit; however, once a creditor has 
received the six pieces of information listed in Sec.  
1026.2(a)(3)(ii), the creditor has received an application for purposes 
of Sec.  1026.2(a)(3)(ii). The proposed comment also would have 
provided examples of this requirement.
    Proposed comment 2(a)(3)-2 would have explained that if a consumer 
does not have a social security number, the creditor may instead 
request whatever unique identifier the creditor uses to obtain a credit 
report. For illustrative purposes, the proposed comment would have 
clarified that a creditor has obtained a social security number to 
obtain a credit report for purposes of Sec.  1026.2(a)(3)(ii) if the 
creditor collects a Tax Identification Number from a consumer who does 
not have a social security number, such as a foreign national. The 
Bureau stated in the proposal that the comment would be consistent with 
guidance provided by HUD in the HUD RESPA FAQs p. 7, 14 
(``GFE-General'').
    Proposed comment 2(a)(3)-3 would have clarified that the creditor's 
receipt of a credit report fee does not affect whether an application 
has been received. It would have stated that Sec.  1026.19(a)(1)(iii) 
permits the imposition of a fee to obtain the consumer's credit history 
prior to the delivery of the disclosures required under Sec.  
1026.19(a)(1)(i), and that Sec.  1026.19(e)(2)(i)(B) permits the 
imposition of a fee to obtain the consumer's credit report prior to the 
delivery of the disclosures required under Sec.  1026.19(e)(1)(i). The 
proposed comment would have also explained that whether, or when, such 
fees are received is irrelevant for the purposes of the definition in 
Sec.  1026.2(a)(3) and the timing requirements in Sec.  
1026.19(a)(1)(i) and (e)(1)(iii). The proposed comment would also have 
provided an example of this provision.
    As noted above, the Bureau believed that one primary purpose of the 
integrated Loan Estimate is to inform consumers of the cost of credit 
when they have bargaining power to negotiate for better terms and time 
to compare other financing options. While the Bureau believed that 
creditors should be able to collect information in addition to the six 
specific items of information set forth in the current definition of 
application, the Bureau was concerned that the catch-all item in the 
current definition may permit creditors to delay providing consumers 
with the integrated Loan Estimate, at a point when the consumer has 
much less opportunity to negotiate or compare other options. The Bureau 
stated that it did not believe that this principle conflicted with the 
creditor's critical need to be able to collect the information 
necessary to originate loans in a safe and sound manner, and that the 
proposed definition of application would not define or limit 
underwriting; it instead would establish a point in time at which 
disclosure obligations would begin.
    Based on this premise, the Bureau stated that the proposed 
definition of application should facilitate consumers' ability to 
receive reliable estimates early in the loan process, but should not 
restrict a creditor's ability to determine which information is 
necessary for sound underwriting, because creditors would be able to 
continue to collect whatever additional information, in the creditor's 
view, is necessary for underwriting the consumer's loan application 
after receiving the six specific items of information that constitute 
an application under proposed Sec.  1026.2(a)(3)(ii). It further stated 
that removing the catch-all item from the current definition could 
ensure that the disclosures are both received early in the loan process 
and based on the information most critical to providing reliable 
estimates. The Bureau also stated that creditors would be able to 
collect whatever information is, in the creditor's view, necessary for 
a reasonably reliable estimate, provided that it collects the 
additional information prior to collecting the six pieces of 
information specified in proposed Sec.  1026.2(a)(3)(ii). The Bureau 
acknowledged in the proposal that creditors could strategically order 
information collection in a manner that best suits the needs of the 
creditor. But the Bureau believed that even if the creditor did so, the 
proposed definition would still be better than the current definition 
in facilitating consumers' ability to receive reliable estimates early 
in the origination process. The Bureau also believed that the proposed 
change to the definition could facilitate consumer shopping because it 
could ensure that consumers would not be required to disclose sensitive 
information, such as the consumer's social security number or income, 
until after the creditor collects less sensitive information. The more 
sensitive information the consumer provides, the more the consumer may 
feel committed to a loan offer and be less likely to continue shopping. 
The Bureau therefore proposed to remove the catch-all item, but 
believed that the proposal preserved creditors' ability to collect any 
additional necessary information, which it believed would strike the 
appropriate balance between the needs of consumers and the needs of 
industry.
    The Bureau also concluded that the proposed approach would dovetail 
with the requirements of proposed Sec.  1026.19(e), which establishes 
limitations on fee increases for the purposes of determining good faith 
but also establishes exceptions to permit changes that are based on 
changes in the information the creditor relied on in disclosing the 
estimated loan costs. Thus, the Bureau stated that the proposed 
definition of application, which would have required creditors to 
collect any additional information prior to collecting the six pieces 
of information specified in proposed Sec.  1026.2(a)(3)(ii), would 
maintain the flexibility provided by the current definition of 
application in deciding which additional information is necessary for 
providing estimates. The Bureau stated its belief that if a creditor 
chooses to collect a consumer's combined liability information prior to 
collecting the six pieces of information

[[Page 79764]]

specified in Sec.  1026.2(a)(3)(ii), the disclosures provided pursuant 
to Sec.  1026.19(e) may reflect such information.
    The Bureau also noted in the proposal that it received feedback, 
including a comment received in response to the 2011 Streamlining RFI, 
requesting a single definition of application under Regulation Z, 
Regulation B, and Regulation C. Regulation B implements the Equal 
Credit Opportunity Act (ECOA), and Regulation C implements the Home 
Mortgage Disclosure Act (HMDA). The Bureau stated in the proposal that 
while it recognized the potential consistency benefits of a single 
definition of application, it believed that the proposed definition of 
application would provide important benefits to consumers in the 
context of closed-end loans secured by real property.
    During the Small Business Review Panel process, several small 
entity representatives expressed concern about eliminating the catch-
all item from the definition of application currently under Regulation 
X. See Small Business Review Panel Report at 33-34, 49, and 67. Based 
on this feedback and consistent with the recommendation of the Small 
Business Review Panel, the Bureau solicited comment on what, if any, 
additional specific information beyond the six items included under the 
proposed definition of application is needed to provide a reasonably 
accurate Loan Estimate.
Comments
    In general. Commenters representing a wide range of the mortgage 
origination industry opposed the removal of the catch-all item from the 
definition of application. In contrast, the only consumer advocacy 
group to comment on this aspect of the proposal expressed support for 
the proposed definition of application.
    A national fair housing consumer advocacy group asserted that the 
current definition of application, because of its lack of uniformity, 
may create confusion for consumers. The commenter stated that predatory 
mortgage brokers and loan originators in the past have depended in part 
on the confusing nature of the loan application process to make 
unaffordable and unsustainable loans to minorities. The commenter 
asserted that the catch-all item in the current definition of 
application was vague and supported its removal from the definition. 
The commenter suggested, however, that the Bureau should move from 
commentary into the regulation itself the statement that a creditor 
that has collected a Tax Identification Number will be deemed to have 
obtained a social security number to obtain a credit report, for 
purposes of Sec.  1026.2(a)(3)(ii). The commenter asserted that this 
change would reduce instances of misinformation or discrimination on 
the basis of race, color, and national origin by creditors.
    Industry commenters opposed the removal of the catch-all item from 
the definition of application, even though some industry stakeholders 
also believed that the catch-all item was vague. For example, a 
national trade association representing credit unions requested that if 
the Bureau retains the current definition of application, it provide 
further guidance on what information is included in ``any other 
information deemed necessary by the lender'' so that credit unions 
could have a clear understanding of the kinds of information they may 
collect before issuing a Loan Estimate. Commenters' specific concerns 
regarding the proposed definition are discussed in more detail below.
    Removal of the catch-all item. Many commenters asserted that 
without the catch-all item, creditors would not be able to obtain 
information critical to their ability to issue reliable and meaningful 
Loan Estimates. These commenters stated that the catch-all item 
currently permits creditors to collect information that could 
significantly impact loan and closing costs, loan pricing in the 
secondary market, and the underwriting decisions they make. Many 
commenters expressed the concern that without the ability to collect 
such information, they would have to follow up with revised Loan 
Estimates as they receive additional information.
    However, there was no consensus among commenters with respect to 
what additional specific information beyond the six items included 
under the proposed definition of application is needed. A number of 
industry commenters asserted that the loan product must be part of the 
definition of application, or otherwise they would not know whether the 
rule would require or permit them to issue more than one Loan Estimate. 
Other commenters asserted that the definition of application must also 
include occupancy status, loan purpose, the loan's term, and, for 
purchase transactions, the sale price of the property the consumer is 
interested in. In joint comments, two State credit union trade 
associations asserted that creditors are required to collect 
information on loan purpose to comply with the Bank Secrecy Act of 1970 
and HMDA. Credit union commenters and their trade associations also 
asserted that credit union membership is information credit unions must 
collect to process an application.
    Several industry commenters, comprising mostly national trade 
associations representing banks and non-bank mortgage lenders, provided 
a list of seventeen pieces of information that, according to the 
commenters, significantly impact loan costs. A State manufactured 
housing trade association and a large non-depository manufactured 
housing lender asserted that creditors making such loans must be able 
to collect information about whether the home will be situated on 
leased land or on land that will secure the loan because the 
distinction would determine whether the obligation to provide the Loan 
Estimate disclosures applies to the creditor. A mortgage company 
commenter asserted that credit score, not just the consumer's social 
security number to obtain the score, should be included in the 
definition of application because the loan terms offered to a consumer 
depend on the consumer's credit score.
    The comments also stated that some creditors require consumers to 
provide a copy of the purchase and sale contract as part of the 
application process. For example, a community bank commenter stated 
that it currently requires the purchase and sale contract as part of 
applications to help determine whether the buyer or seller is 
responsible for various costs and to identify the sale price. Another 
large bank commenter stated that a purchase and sale contract is 
necessary to determine the sales price. The community bank commenter 
stated that the regulations must allow creditors to minimize the burden 
of redisclosure, and that the bank's ability to request the purchase 
and sale contract reduces such burden. A State association of buyer's 
real estate agents, however, expressed concern that the lender practice 
of requiring a purchase and sale contract does not give consumers 
enough time to shop for a mortgage loan and must be changed.
    Impact on industry. Many commenters expressed concern about 
compliance burden and implementation costs. Commenters stated that they 
would have to change their application process so that they could 
collect the information they need before, or at the same time as, they 
collect the six specific pieces of information that would constitute an 
application under the proposal. Some commenters asserted that even if a 
creditor could structure its application process to collect the 
additional information before collecting the six specific pieces of

[[Page 79765]]

information that would make up the application, situations might arise, 
particularly with applications submitted through the internet or 
applications submitted by mail, where consumers submit the six specific 
pieces of information, but not the additional information the creditor 
deems critical to providing accurate and reliable Loan Estimates.
    Some commenters, including a large bank commenter and national 
trade associations representing large banks and large mortgage finance 
companies, sought clarification on how creditors should treat consumer 
information they have retained due to prior or existing customer 
relationships. One of these commenters asked if a creditor would be 
considered to have received an application if a consumer starts filling 
out a mortgage application form online, provides the six pieces of 
information that make up the definition of application, but then saves 
the mortgage application form to complete at a later time. Some 
commenters asserted that the risk of having to issue Loan Estimates 
upon receiving applications that are complete under the Regulation Z 
definition of application, but that are not complete in the creditor's 
determination, would be greater for creditors that use independent 
mortgage brokers.
    A number of commenters expressed concern about the interaction 
among the proposed definition of application, the proposed change to 
the definition of business day for purposes of determining the original 
Loan Estimate delivery requirement, and the proposed tightening of the 
current tolerance rules establishing limitations on fee increases for 
certain settlement costs. These commenters believed that these changes 
together would require a creditor to provide a Loan Estimate subject to 
stricter tolerances in a shorter period of time, with less information 
than it could currently rely on. A national trade association 
representing mortgage bankers asserted that creditors may increase 
their origination costs and estimate third-party charges at higher 
levels to manage the risk of providing estimates in response to the 
combined regulatory impact.
    Some commenters asserted that changing the definition of 
application may not have a significant impact on a creditor's ability 
to delay provision of the Loan Estimate, because a creditor could 
simply sequence its application process to delay collection of some or 
all of the six pieces of information included under the new definition 
of application. Some commenters noted that they were not aware of any 
issues that have arisen since the current definition of application 
became effective in 2010 that would lead the Bureau to conclude that 
the proposed modification was necessary. A trade association 
representing large banks observed that HUD had previously proposed to 
require lenders to provide the RESPA GFE upon the receipt of the six 
items of specific information that would constitute the proposed 
definition of application, but after reviewing the comments, HUD added 
the catch-all item to the definition of application.
    Some commenters expressed concern that, because the proposal would 
have required creditors to honor the charges disclosed on a Loan 
Estimate for ten business days after providing it, creditors would 
either be forced to accept lower fees disclosed when necessary 
information is missing or be required to provide revised Loan Estimates 
to charge the consumer the actual cost of a settlement service. A 
national trade association representing large bank creditors stated 
that the proposed definition could reduce the number of rate locks 
offered at application because creditors may not want to provide such a 
commitment without information they deem necessary. A large bank 
commenter asserted that the proposed definition of application may 
restrict a creditor's ability and reduce the creditor's willingness to 
provide pre-qualification and web-based home shopping services because 
currently, when using those services, consumers often provide the six 
pieces of information that would have constituted an application under 
the proposal. A national trade association representing banks asserted 
that a consumer should be allowed to provide the six specific items of 
information to receive pre-application worksheets, without also 
triggering the obligation for the creditor to issue a Loan Estimate.
    A national trade association representing community-based mortgage 
bankers asserted that creditors need the flexibility to postpone the 
issuance of the Loan Estimate to those consumers who only want non-
binding pre-application worksheets. A mortgage broker commenter 
asserted that there should be two definitions of application: one 
definition to trigger the obligation to provide pre-qualification 
worksheets, and a different definition to trigger the obligation to 
issue a Loan Estimate, which should retain the catch-all item or be the 
same as the definition used in Regulation B.
    Some commenters expressed concern that the six items of information 
that constitute the proposed definition of application would not be 
adequate for a creditor to consider for ability-to-repay purposes, 
because creditors must verify certain borrower information to comply 
with those requirements. Several commenters, including national trade 
associations representing banks and consumer mortgage companies, 
additionally requested clarification that the proposed definition of 
application applies only to Regulation Z, and not to regulations 
implementing ECOA, HMDA, and the Fair Credit Reporting Act (FCRA). Some 
commenters expressed a desire for the Bureau to streamline the 
definition of application so that one definition can be consistently 
applied across those regulations and Regulation Z. A large-bank trade 
association expressed concern that adopting the proposed definition of 
application would add regulatory complexity because the definition 
would be different from the definitions of application under 
regulations implementing ECOA and HMDA at a time when banks are 
struggling to comply with other Dodd-Frank Act requirements.
    The SBA stated that the Bureau should not remove the catch-all item 
from the definition of application because the small entity 
representatives that participated in the Bureau's Small Business Panel 
Review process had mixed reactions to the proposed removal of the 
catch-all item. It additionally suggested that the Bureau should remove 
``property address'' from the list of six specific items that would 
make up the definition of application. The SBA asserted that the 
requirement would be problematic based on its consultation with 
industry representatives and based on the suggestion made by a national 
trade association representing community banks in connection with the 
Small Business Review Panel process. The trade association commenter 
asserted that the ``property address'' should be an optional item in 
the definition of application for purchase transactions because the 
change would enable the consumer to shop for a mortgage loan based on a 
regulated document, the Loan Estimate, rather than unregulated pre-
application worksheets. The commenter made the same assertion in the 
comment letter it submitted in response to the TILA-RESPA Proposal.
    An individual industry commenter echoed SBA's suggestion with 
respect to the property address. The commenter asserted that the 
definition of application should be defined as having been received 
when the creditor has enough information to issue a pre-

[[Page 79766]]

approval letter, or submit the loan for pre-approval, but that the pre-
approval letter must not bind the creditor.
Final Rule
    The Bureau has considered the comments but believes that the 
purpose of the Loan Estimate with respect to consumers that was set 
forth by the Dodd-Frank Act (see Dodd-Frank Act sections 1098 and 
1100A), to aid consumer understanding of the mortgage loan transaction, 
is better served by removing the catch-all item from the definition of 
``application.'' The Bureau understands that the removal of the seventh 
catch-all item from the definition may not have a substantial impact on 
moving the issuance of the Loan Estimate earlier in the transaction. It 
is apparent from the comments received that many creditors would 
sequence the information they receive to obtain information they deem 
necessary in addition to the six items in the definition of 
``application'' before receipt of all six items. However, the Bureau 
believes that there are other important benefits that will be achieved 
from a definition of application that only includes the six specific 
items and not the seventh open-ended catch-all item.
    Under the current definition of application under Regulation X, 
creditors decide when to provide the RESPA GFE and early TILA 
disclosure based on their own definition of what information is 
necessary for an application. The Bureau does not have evidence of 
creditors systematically using the catch-all item after receiving the 
six items in the definition of application to delay issuance of the 
RESPA GFE and the early TILA disclosure after receipt of the six items. 
However, it is apparent from the comments received that creditors use 
this catch-all item in the current definition of application to obtain 
additional information after receiving the six specific items in the 
definition of application. Accordingly, consumers cannot ascertain the 
point in time when they are entitled to receive the Loan Estimate on 
which they can rely.
    The Bureau believes that the final rule, under which consumers must 
receive a Loan Estimate after submitting an application that clearly 
presents the estimated loan terms and costs will provide a significant 
benefit to consumers by enabling them to shop for different financing 
options with clear, reliable estimates. Indeed, as described in the 
section-by-section analysis of Sec.  1026.19(e)(2)(ii) below, the final 
rule requires a statement on pre-disclosure estimates provided to 
consumers informing them that the estimated loan terms and costs can be 
higher, and to ``Get an official Loan Estimate before choosing a 
loan.'' Accordingly, to ensure that consumers understand how to obtain 
a Loan Estimate, the Bureau believes that consumers should be able to 
discern the point of time in the application process of the transaction 
at which the creditor is required to provide them with one. The Bureau 
believes that the fact that under the current definition of application 
creditors can obtain any additional information past the point of 
receipt of the six items conflicts with the ability of consumers to 
understand this aspect of their transaction.
    By providing that the submission of six specific items of 
information constitutes an application, the final rule provides a clear 
point in time for consumers at which the creditor can no longer delay 
issuance of the Loan Estimate. Accordingly, the Bureau believes that 
the definition of application in the final rule will result in 
consumers having a better understanding of the application process of 
the transaction, and of how to obtain the Loan Estimate, as directed by 
the statement required under Sec.  1026.19(e)(2)(ii). The Bureau 
believes a uniform, bright line definition of application will provide 
this consumer benefit. With one standard, objective definition of 
application across all creditors, consumers will more easily understand 
when a creditor is required to provide them with the Loan Estimate. The 
Bureau believes consumer understanding can be further enhanced through 
a consumer education initiative regarding the information the consumer 
should provide to receive a Loan Estimate, and regarding the 
reliability of the Loan Estimate. In addition, the Bureau believes a 
single bright-line definition of application across all creditors will 
facilitate compliance by industry and supervision by Federal and State 
regulatory agencies.
    The Bureau does not believe that the catch-all element is a 
necessary component of the definition of application. The final rule 
permits creditors to collect the information they need to give a 
reliable estimate before they complete collection of the six items of 
information that constitute an application. As discussed above, some 
industry commenters noted that aspect of the Bureau's proposed 
definition when they asserted that the definition of application may 
not have a significant impact on a creditor's ability to delay 
provision of the Loan Estimate, because the creditor could simply 
sequence its application process to delay collection of some or all of 
the six pieces of information that would make up the definition of 
application. Such comments reveal that the catch-all element does not 
need to be part of the definition of application because creditors do 
not need it to collect additional information from consumers. In 
addition, the final rule does not prevent creditors from collecting 
additional information after they receive the six specific pieces of 
information for underwriting purposes.
    The Bureau also believes that it is unnecessary to add specific 
items to the definition of application. The fact that the final rule 
permits creditors to collect the information they need to give a 
reliable estimate before they complete collecting the six items of 
information that constitute an application means that each creditor is 
free to request the particular pieces of information it needs before, 
or at the same time as the creditor collects the six pieces of 
information. In addition, commenters did not uniformly suggest 
particular items to add to the definition. Because creditors can 
collect the additional information they believe is necessary with this 
revised definition of application, the Bureau believes that it is 
unnecessary to add new items to the definition of application to 
replace the catch-all item, as requested by some industry commenters.
    The Bureau does not believe that the deletion of the catch-all item 
will cause creditors to issue a large number of revised Loan Estimates 
that would create consumer confusion and information overload. The 
final rule permits creditors to sequence the application process to 
gather additional items of information, including the potential loan 
product a consumer is considering, which some creditors assert are 
needed to provide reliable estimates. This reduces the likelihood of 
redisclosures. For similar reasons, creditors should not need to 
increase their origination costs, over-estimate third-party fees, or 
reduce rate lock offers. To be sure, the final rule may result in some 
consumers receiving multiple Loan Estimates concurrently with respect 
to multiple loan products the consumer is considering. The Bureau does 
not believe, however, that this will cause confusion. On the contrary, 
the Bureau believes that receiving multiple Loan Estimates furthers the 
goal of facilitating consumer shopping. Further, the Bureau believes 
that it is better that consumers receive Loan Estimates that are 
subject to the good faith requirements of Sec.  1026.19(e)(3) and that 
are subject to the standard or model format

[[Page 79767]]

requirements of Sec.  1026.37(o) than that they receive pre-disclosure 
estimates, which are not subject to those requirements.
    Pre-qualification services. The Bureau also does not believe that 
the definition of application adopted in this final rule will 
discourage creditors from providing pre-approval, pre-qualification, or 
internet-based home-shopping services. The Bureau believes that 
competition among creditors for consumers will be an effective 
countervailing force against any such disincentive. Additionally, the 
Bureau does not believe that the definition of application will 
restrict creditors' ability to provide pre-qualification cost estimates 
or grant pre-approvals. The Bureau believes that creditors could 
provide pre-qualification estimates and grant pre-approvals without 
obtaining all of the six specific items of information that make up the 
definition of application. Specifically, the Bureau believes that there 
is little need for creditors to gather specific information about the 
loan transaction, such as the property address or loan amount sought, 
to make pre-qualification estimates because pre-qualification estimates 
and pre-approvals are not subject to the tolerance rules in Sec.  
1026.19(e)(3) and are generally for a range of loan amounts and 
property values. In fact, comments made by a national trade association 
representing community banks asked that the Bureau designate ``property 
address'' as an optional item in the definition of application for 
purchase transactions. This suggests to the Bureau that creditors may 
not need the ``property address'' to issue pre-qualification estimates.
    Industry compliance. The Bureau considered industry commenters' 
concern that regulatory burden would increase because the final rule 
would change (i) the definition of business day to include Saturday as 
a business day for the original Loan Estimate delivery requirement; 
(ii) the tolerance rules, and (iii) the definition of application. In 
response to these concerns, the Bureau has decided to use the general 
definition of business day in Regulation Z for the integrated Loan 
Estimate delivery requirement. See the section-by-section analysis of 
Sec.  1026.2(a)(6). Further, the Bureau is addressing concerns about 
burden by retaining the six exceptions to the general rule that certain 
settlement charges may not increase from the amounts originally 
disclosed to the consumer under Sec.  1026.19(e)(1)(i), including 
exceptions based on the information the creditor relied on in 
disclosing the estimated loan costs. See the section-by-section 
analysis of Sec.  1026.19(e)(3)(iv).
    As noted above, a number of commenters expressed concerns about 
compliance with other regulations. The definition being adopted today 
does not change the current definitions of application under 
Regulations B and C. The Bureau recognizes the potential benefits of a 
single definition of application, including reduced regulatory burden. 
However, the definition of application in this final rule determines 
when consumers must be given disclosures that enable them to shop for 
and compare different loan and settlement cost options. The definition 
of application in this final rule serves a different purpose than the 
definition of application in Regulations B and C. ``Application'' as 
defined by this final rule triggers a creditor's obligation to provide 
disclosures to aid consumers in shopping for and understanding the cost 
of credit and settlement. On the other hand, a creditor's receipt of an 
application under Regulation B triggers a creditor's duty to make a 
credit decision and notify the borrower within a specified time frame. 
Under Regulation C, receipt of an application triggers a duty to 
collect and report information on the disposition of that application 
and on other aspects of the transaction as well as the applicant's 
characteristics. Accordingly, the Bureau is not expanding the 
definition of application adopted in this final rule to regulations 
that implement ECOA, FCRA, and HMDA, or vice versa. However, the Bureau 
will continue to consider the comments received on this topic as it 
evaluates further follow up to the 2011 Streamlining RFI.
    With respect to the concern that the definition of application may 
make it more difficult to comply with other regulatory obligations, 
given the flexibility the creditor will continue to have under this 
final rule to sequence the information it collects, there is little 
need to delay issuance of the Loan Estimate to comply with other 
regulations. Regulation X currently prohibits creditors from requiring 
the submission of verifying information as a condition of issuing the 
RESPA GFE. The final rule prohibits creditors from requiring the 
submission of verifying information as a condition to issuing a Loan 
Estimate, as discussed below in the section-by-section analysis of 
Sec.  1026.19(e)(2)(iii). However, the final rule does not prevent a 
creditor from fulfilling its obligation to evaluate a borrower's 
ability to repay. Creditors will be able to collect whatever 
information they need to evaluate a borrower's ability to repay so long 
as they sequence the collection of that information to ensure that they 
provide a Loan Estimate when required by Sec.  1026.19(e)(1)(iii) and 
without conditioning the issuance on verifying information.
    The Bureau recognizes that some creditors may have to restructure 
their information collection process, such as by changing the manner in 
which they sequence their information collection and increasing 
communication with independent mortgage brokers. These changes may 
impose some costs on creditors. But the Bureau believes that the final 
rule's bright-line definition of application may provide some benefits 
to industry. Some commenters requested clarification regarding what 
information could be collected by creditors under the catch-all 
element. Because the current definition of application does not contain 
a standard for the additional information that may be collected before 
providing the Loan Estimate, the final rule's bright line definition 
may facilitate industry compliance with the disclosure requirements. In 
addition, a bright line definition may facilitate due diligence reviews 
by creditors' secondary market purchasers, securitizers, or other 
business partners, and thereby reduce overall burden.
    Specific comments on the six items. The Bureau received comments on 
the six items of information, in addition to the removal of the seventh 
catch-all element. The Bureau is not adopting changes to the six 
elements. First, the final rule does not replace ``social security 
number to obtain a credit report'' with ``credit score,'' as a mortgage 
broker commenter suggested. The Bureau believes a creditor would have 
sufficient time to obtain the credit score information before a Loan 
Estimate must be issued. Additionally, for reasons stated above, the 
Bureau does not believe it is necessary to provide that ``property 
address'' is an optional piece of information for purposes of the 
definition of application. As discussed in greater detail below, 
comment 19(e)(3)(iv)(A)-3 explains that creditors are not required to 
obtain the property address before they issue a Loan Estimate. The 
final rule also does not include a separate definition of application 
for pre-approval estimates or worksheets. Creditors are currently able 
to issue such documents at any time before issuing the RESPA GFE and 
the early TILA disclosure, and will continue to be able to do so under 
this final rule. Further, the Bureau believes that creating another 
definition of

[[Page 79768]]

application would create consumer confusion and add to regulatory 
burden.
    Final definition of application. For the reasons discussed above, 
the Bureau is finalizing the removal of the catch-all item from the 
definition of application in this final rule as proposed, pursuant to 
its authority under TILA section 105(a) and its authority under section 
19(a) of RESPA. The definition of application adopted in this final 
rule consists of two parts. First, Sec.  1026.2(a)(3)(i) defines 
application as the submission of a consumer's financial information for 
purposes of obtaining an extension of credit. This establishes a 
general definition for all credit transactions subject to Regulation Z. 
Second, Sec.  1026.2(a)(3)(ii) provides that an application consists of 
six pieces of information for transactions subject to Sec.  1026.19(e), 
(f), or (g) of Regulation Z. The six pieces of information consist of 
the consumer's name, income, social security number to obtain a credit 
report, the property address, an estimate of the value of the property, 
and the mortgage loan amount sought.
    The Bureau acknowledges that in contrast to the proposed Sec.  
1026.2(a)(3)(ii), final Sec.  1026.2(a)(3)(ii) narrows the scope of the 
definition of application to transactions subject to the integrated 
disclosure requirements. The Bureau believes that the modification is 
necessary to facilitate compliance with the final rule. The definition 
of application in proposed Sec.  1026.2(a)(3)(ii) would have applied to 
any type of credit subject to subpart C of TILA, including closed-end 
loans not secured by real property. The Bureau did not intend the 
definition of application set forth in proposed Sec.  1026.2(a)(3)(ii) 
to apply to other types of credit. As the Bureau stated in the 
proposal, the definition of application set forth in proposed Sec.  
1026.2(a)(2)(ii) consisted of elements that had an ``established 
significance in the context of closed-end loans secured by real 
property, but may be less significant, or even inapplicable to other 
types of credit.'' 77 FR 51140.
    Comment 2(a)(3)-1 is adopted as proposed, except for adjustments to 
harmonize the comment with adjustments to the scope of the definition 
of application set forth in final Sec.  1026.2(a)(3)(ii). The comment 
provides guidance on when a consumer is considered to have submitted an 
application for purposes of Sec.  1026.2(a)(3). This final rule does 
not require the receipt of the six items that make up the definition of 
an application in a particular order. The final rule permits a creditor 
to set up systems to collect the six items of information that make up 
the definition of application in the order that best suits the 
creditor's needs. Thus, creditors taking applications on paper form, 
over the phone, or on a Web page can sequence the information requested 
from the consumer in any order.
    The Bureau does not believe that additional guidance is necessary 
with respect to the collection of information from consumers with whom 
the creditor has an existing business relationship, or a previous 
business relationship, with the creditor. The definition of application 
refers to the ``submission'' of the six items of information that make 
up the definition, and as such, merely maintaining such information 
from a previous transaction or business relationship would not 
constitute an application for purposes of the definition if the 
consumer has not submitted any information or indicated that he or she 
wishes such information maintained by the creditor to be used for an 
application. Additionally, because the definition of application refers 
to the ``submission'' of the six items of information that make up the 
definition, if a consumer starts filling out a mortgage application 
form online, enters the six pieces of information that constitute the 
definition of ``application,'' but then saves the mortgage application 
form to complete at a later time, the consumer has not submitted the 
items of information.
    Comments 2(a)(3)-2 and -3 are also adopted as proposed. Comment 
2(a)(3)-2 clarifies that if a consumer does not have a social security 
number, the creditor may instead request a unique identifier the 
creditor uses to obtain a credit report. For illustrative purposes, the 
comment provides an example that states that a creditor has obtained a 
social security number to obtain a credit report for purposes of Sec.  
1026.2(a)(3)(ii) if the creditor collects a Tax Identification Number 
from a consumer who does not have a social security number, such as a 
foreign national. A national fair housing consumer advocacy group 
commenter suggested moving this provision into the regulation. However, 
because the example illustrates how to comply with the requirements of 
Sec.  1026.2(a)(3) if the consumer does not have a social security 
number, the Bureau believes that this example's placement should remain 
in commentary, rather than in the text of the regulation.
    Finally, the Bureau understands that some creditors require a 
purchase and sale agreement prior to issuing the RESPA GFE and the 
early TILA disclosure. While this practice may be permissible under 
current Regulation X in some cases, it would conflict with final Sec.  
1026.19(e)(2)(iii), which prohibits a creditor from requiring verifying 
documentation before issuing a Loan Estimate. See the section-by-
section analysis of Sec.  1026.19(e)(2)(iii).
2(a)(6) Business Day
    The Bureau proposed to apply the specific definition of the term 
``business day'' under Regulation Z, which includes Saturdays, but 
excludes certain public holidays, to the provisions of Sec.  1026.19(e) 
and (f) that would be analogous to Sec.  1026.19(a)(1)(i), (a)(1)(ii), 
and (a)(2), which are the timing requirements for the integrated 
disclosures.
    Although neither RESPA nor TILA defines the term ``business day,'' 
that term is defined in Regulations X and Z. Both Regulation X Sec.  
1024.2(b) and Regulation Z Sec.  1026.2(a)(6) generally define business 
day to mean a day on which the offices of the creditor or other 
business entity are open to the public for carrying on substantially 
all of the entity's business functions. For certain provisions of 
Regulation Z, however, the specific definition provided under 
Regulation Z applies, which includes all calendar days except Sundays 
and the legal public holidays specified in 5 U.S.C. 6103(a), (i.e., New 
Year's Day, the Birthday of Martin Luther King, Jr., Washington's 
Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, 
Veterans Day, Thanksgiving Day, and Christmas Day).
    The specific definition of business day applies to, among other 
things, the three-business-day limitation on the imposition of fees in 
Sec.  1026.19(a)(1)(ii) and the three- and seven-business-day waiting 
periods in Sec.  1026.19(a)(2). The Bureau proposed to amend Sec.  
1026.19 to implement analogous requirements for the integrated 
disclosures in new paragraphs (e) and (f) of that section. For 
consistency with the current timing requirements under Sec.  
1026.19(a), and to facilitate compliance with TILA, the Bureau proposed 
to use its authority under TILA section 105(a) to amend Sec.  
1026.2(a)(6) to apply the specific definition of business day to the 
provisions of Sec.  1026.19(e) and (f) that would be analogous to Sec.  
1026.19(a)(1)(i), (a)(1)(ii), and (a)(2). The Bureau also proposed 
conforming amendments to comment 2(a)(6)-2. Under the proposal, in 
addition to other timing requirements for the integrated disclosures, 
the specific definition of business day would have applied to the 
requirement to deliver the Loan Estimate within three business days of 
a creditor receiving an application.

[[Page 79769]]

    The Bureau stated in the TILA-RESPA Proposal that it recognized 
that this issue was previously raised during the Board's 2008-2009 MDIA 
rulemaking. See 73 FR 74989, 74991 (Dec. 10, 2008) and 74 FR 23289, 
23293-23294 (May 19, 2009). However, the Bureau stated that it believed 
applying the specific definition of business day to the integrated 
disclosures would facilitate compliance. The Bureau solicited feedback 
regarding whether the general definition of business day instead should 
apply to the integrated disclosures delivery requirements. The Bureau 
also solicited comment on whether the rules should be analogous to the 
current rules, where the general business day requirement applies to 
some requirements and the specific business day requirement applies to 
other requirements. Finally, the Bureau solicited feedback regarding 
whether the business day usage under current Sec.  1026.19(a) should 
remain, or if Sec.  1026.19(a) should be modified to use a single 
definition of business day consistent with proposed Sec.  1026.19(e) 
and (f).
Comments
    In joint comments, two large national consumer advocacy groups 
asserted that the Bureau should replace both the general and specific 
definitions of business day currently used in Regulation Z with an 
alternative definition of business day that would exclude Saturdays, 
Sundays, and the legal public holidays specified in 5 U.S.C. 6103(a). 
The consumer advocacy groups asserted that the current specific 
definition of business day is flawed because people generally do not 
consider Saturdays as a ``business day.'' The consumer advocacy groups 
also opposed the general definition of business day. They argued that 
it was subjective, varied entity-by-entity, and could be changed 
without warning. The commenters asserted that they did not believe that 
excluding Saturday from the definition of business day will have a 
significant consumer impact, and that any detriment would be outweighed 
by the benefits of their alternative definition. The consumer advocacy 
groups asserted that their alternative definition of business day would 
simplify compliance and training for businesses and help reduce the 
possibility of errors and litigation that arise from confusion over 
whether a particular day qualifies as a business day.
    Industry commenters had mixed reactions to the proposed application 
of the specific definition of business day for determining the original 
Loan Estimate delivery requirement, although most opposed applying the 
specific definition. A large bank commenter expressed support for using 
the specific definition of business day for purposes of determining the 
amount of time a creditor has to deliver the Loan Estimate after 
receipt of a consumer's application because applying different 
definitions of business day is confusing to creditors, consumers, and 
other participants in the settlement process. A regional bank holding 
company supported applying the specific definition of business day to 
all mortgage-related provisions of Regulation Z based on its belief 
that the general definition of business day is vague. A national trade 
association representing mostly mortgage brokers and a State trade 
association representing similar entities supported the proposed 
application of the specific definition of business day for determining 
the original Loan Estimate delivery requirement. They asserted that 
most creditors operate at least six days a week. A title agent 
commenter supported the specific definition because it was easy to 
understand.
    As noted above, most industry commenters strongly opposed using the 
specific definition of business day to determine the original Loan 
Estimate delivery requirement. The commenters included large banks, 
regional banks, community banks, credit unions, and non-depository 
lenders; several national, regional, and State trade associations 
representing banks, mortgage bankers, consumer mortgage companies, and 
credit unions; settlement and title agents, document preparation and 
software companies, compliance companies, a law firm, SBA, and a 
national trade association representing house financing agencies. The 
comments mostly focused on the compliance burden that would result from 
the adoption of the specific definition, because it would reduce the 
timeframe in which a creditor or mortgage broker would have to prepare 
and deliver the Loan Estimate. Commenters stated that creditors are 
typically not staffed so that they could provide the Loan Estimate 
within a timeframe determined by the application of the specific 
definition of business day to the original Loan Estimate delivery 
requirement. Some commenters stated that they are closed on weekends 
and others stated that they only offer limited service on weekends. 
Commenters also stated that the personnel that typically prepare the 
Loan Estimate do not work on Saturdays. A number of commenters stated 
that even if a creditor is open for business on a Saturday, third-party 
settlement service providers that a creditor must contact to obtain 
information creditors need to prepare the Loan Estimate may not be 
open. Commenters expressed concern that the specific definition of 
business day would increase operating and compliance costs 
substantially for creditors and third-party service providers, 
particularly if they are small entities, increase mistakes on the Loan 
Estimate, and increase redisclosures because it would reduce the 
timeframe in which a creditor or mortgage broker would have to prepare 
the Loan Estimate. Many of these commenters requested that the Bureau 
retain the general definition of business day for the original Loan 
Estimate delivery requirement.
    A number of industry commenters supported establishing a consistent 
definition of business day to promote consistency across the provisions 
of Regulations X and Z that would be impacted by the TILA-RESPA 
Proposal to reduce compliance burdens for creditors. A large non-
depository lender and a State credit union trade association expressed 
a preference for the general definition of business day, because 
applying the specific definition of business day to the preparation of 
the integrated disclosure would increase compliance burden by reducing 
the time available to prepare the integrated disclosures and expose 
creditors to unnecessary liability. A national trade association 
commenter representing mortgage bankers suggested that the general 
definition of business day should be clarified. The commenter appears 
to have sought to narrow the general definition of business day to an 
entity's mortgage origination functions so that at a multiservice 
financial institution, the determination of whether a day is a business 
day under the general definition would be evaluated in the context of 
the financial institution's mortgage origination business and the 
schedule of employees that work in that business segment.
    Some commenters supported a specific definition of business day, 
but did not support the current specific definition of business day in 
Regulation Z, for the reasons discussed above. Some of these commenters 
supported applying an alternative definition of business day that 
excludes all Saturdays, Sundays, and the legal public holidays 
specified in 5 U.S.C. 6103(a), similar to the definition the two 
national consumer advocacy groups suggested, to the regulatory 
provisions that would be impacted by the TILA-RESPA Proposal. Several 
national trade

[[Page 79770]]

associations representing banks, mortgage bankers, and consumer 
mortgage companies stated that it was important to continue to apply 
the specific definition of business day to regulatory provisions that 
prescribe the timeframe a consumer is given to review disclosures, such 
as the waiting period before consummation, the consumer's right to 
rescind, and provisions related to when disclosures are considered to 
be received by the consumer and when fees may be charged, because 
consumers can receive mail on Saturday and review disclosures on 
Saturday. Lastly, one national trade association representing mortgage 
brokers suggested that the Bureau should eliminate the concept of 
business day with respect to any regulatory provision that contains a 
timing requirement related to mortgages. The commenter appeared to 
suggest that a standard based on calendar days would be easiest to 
understand.
Final Rule
    Original Loan Estimate delivery requirement. The Bureau has 
considered these comments and has determined to retain the general 
definition of business day in Regulation Z for determining the original 
Loan Estimate delivery requirement. The Bureau has concluded that 
applying the specific definition of business day to the timing 
requirement to provide the original Loan Estimate within three business 
days of receipt of an application under Sec.  1026.19(e)(1)(iii) would 
impose significant compliance costs on creditors that are not currently 
open for business on Saturdays, especially small creditors. As 
discussed above, many commenters stated that they do not carry on 
business on Saturdays. Further, even those that do would need to 
contact third-party service providers that may not be open for business 
on Saturdays to obtain information about fees to disclose on the Loan 
Estimate. The Bureau is concerned that creditors and settlement service 
providers that currently do not operate on Saturdays, especially 
smaller entities such as community banks, credit unions, and settlement 
agents, could disproportionately bear the operating and compliance 
costs caused by the final rule treating Saturday as a business day for 
the original Loan Estimate delivery requirement. Such entities might 
face significant practical pressure to operate on Saturday under the 
proposed rule, which could significantly increase their operating 
costs.
    The Bureau is also concerned about the unintended consequences to 
consumers of applying the specific definition of business day for 
determining the original Loan Estimate delivery requirement. As 
discussed above, two large national consumer advocacy groups stated 
that they did not believe excluding Saturday from the definition of 
business day would have a significant impact on consumers. But as 
discussed above, many industry commenters expressed concern that the 
specific definition of business day would substantially increase 
operating and compliance costs because their operations are not set up 
to treat Saturday as a business day. Accordingly, the Bureau is 
concerned that an unintended consequence of applying the specific 
definition of business day to the original Loan Estimate delivery 
requirement would be creditors and settlement service providers raising 
origination charges and fees for settlement services to cover their 
increased operation costs. The Bureau believes that this result could 
ultimately harm consumers.
    The Bureau also believes that retaining the general definition of 
business day for the original Loan Estimate delivery requirement would 
facilitate compliance because as proposed, the general definition of 
business day in Regulation Z would have been retained for purposes of 
determining revised Loan Estimate delivery requirement in proposed 
Sec.  1026.19(e)(4)(i). The Bureau believes that applying the same 
definition of business day to the original Loan Estimate delivery 
requirement as the revised Loan Estimate delivery requirement will 
facilitate compliance for industry.
    Consistent definition of business day. The Bureau is also not 
adjusting the general definition of business day, in the manner 
requested by a national trade association representing mortgage 
bankers. As discussed above, the commenter appeared to request that the 
general definition of business day be evaluated in the context of a 
financial institution's mortgage origination business and the schedule 
of employees that work in that business segment. The Bureau believes 
such a definition would not only be discordant with the current 
definition that considers whether a creditor's offices are open to the 
public for carrying on substantially all of its business functions, but 
would also increase the level of difficulty in evaluating compliance.
    The Bureau recognizes that a consistent definition of business day 
throughout Regulation Z could enhance consumer understanding and 
facilitate compliance with Regulation Z. However, the Bureau believes 
such a far reaching amendment to the definition of business day, which 
affects many provisions throughout Regulation Z, is beyond the scope of 
this rulemaking and would be inappropriate in this final rule. The 
Bureau believes it would need to conduct further study of this issue 
before undertaking such a rulemaking. There would be many issues and 
alternatives to consider in such a rulemaking. As discussed above, two 
large national consumer advocacy groups asserted that the Bureau should 
replace both the general and specific definitions of business day with 
a single definition that excludes Saturdays, Sundays, and the legal 
public holidays specified in 5 U.S.C. 6103(a) throughout Regulation Z. 
But as noted above, several national trade associations asserted that 
it was important to maintain the current specific definition of 
business day, which includes Saturday, for provisions such as the 
waiting period before consummation. The commenters also asserted that 
the specific definition should continue to apply to provisions related 
to the consumer's right to rescind in certain mortgage transactions. 
The Bureau believes further study of these issues would be necessary, 
and thus, it would be inappropriate to finalize such an amendment in 
this final rule. However, the Bureau may review such a definition in 
the context of its 2011 Streamlining RFI.
    Final definition of business day. For the reasons discussed above, 
in the final rule, the Bureau is applying the general definition of 
business day for the requirement to deliver the initial disclosures 
within three business days under Sec.  1026.19(e)(1)(iii). The Bureau 
is otherwise finalizing the definition of business day as proposed. 
Specifically, the Bureau is adopting the specific definition of 
business day to the seven-business day waiting period in Sec.  
1026.19(e)(1)(iii)(B), Sec.  1026.19(e)(1)(iv) and Sec.  
1026.19(e)(2)(i)(A). These provisions are analogous to provisions in 
Sec.  1026.19(a) of Regulation Z to which the specific definition of 
business day currently applies, and the Bureau believes such 
consistency will facilitate compliance for industry.
    For reasons set forth in the section-by-section analysis of Sec.  
1026.19(f)(1)(ii)(A), the Bureau is also adopting the aspect of the 
proposal that would have applied the specific definition of business 
day to Sec.  1026.19(f)(1)(ii) and (iii). Further, for reasons 
discussed in greater detail in the section-by-section analyses of 
Sec. Sec.  1026.19(e)(4)(ii) and 1026.20(e)(5), the Bureau is also 
adopting the application of the specific definition of business day to 
these sections, which establish timing requirements for,

[[Page 79771]]

respectively, the receipt of revised Loan Estimates and the Post-
Consummation Escrow Cancellation Disclosure. The Bureau has also made a 
minor modification to comment 2(a)(6)-2 to refer to real estate-secured 
loans as well as dwelling-secured loans, as Sec.  1026.19(e) and (f) 
apply to closed-end credit transactions secured by real property.
2(a)(17) Creditor
    Under current Regulation Z, a person who extended consumer credit 
25 or fewer times in the past calendar year, or five or fewer times for 
transactions secured by a dwelling, does not qualify as a ``creditor.'' 
See 12 CFR 1026.2(a)(17)(v). The Bureau's 2011 Streamlining RFI 
requested comment on whether these thresholds should be raised and, if 
so, to what number of transactions. That proposal also solicited 
comment on whether a similar exemption should be applied to the 
integrated disclosures. In response, trade association commenters 
suggested raising the threshold number of transactions in order to 
reduce regulatory burden on small lenders. For example, one trade 
association commenter suggested raising the threshold number of 
transactions to 50, regardless of transaction type. In light of this 
feedback, the Bureau requested comment in the TILA-RESPA Proposal on 
whether the five-loan exemption threshold was appropriate for 
transactions that would be subject to this final rule and, if not, what 
number of transactions would be appropriate. The Bureau also solicited 
comment on whether any transaction-based exemption adopted in this 
rulemaking should be applied to the pre-consummation disclosure 
requirements of sections 4 and 5 of RESPA.
Comments
    Industry commenters expressed mixed views with respect to whether 
the definition of creditor should be changed to accommodate small 
businesses. On the one hand, some industry commenters requested that 
the Bureau further increase the threshold under Regulation Z for 
defining creditors or adopt an exemption for small businesses. They 
included a national trade association representing escrow and 
settlement agents, two law firm commenters, a community bank commenter, 
and a national trade association representing Federally-chartered 
credit unions.
    On the other hand, other commenters, including a commenter employed 
by a software company, several individual commenters, and settlement 
agents expressed concern that it would be difficult to identify 
criteria for a small creditor definition and that inconsistent 
application of the integrated disclosure requirements across the 
mortgage market would harm consumers because it would impede consumer 
shopping among different creditors. Lastly, a national trade 
association representing mortgage brokers objected to the fact that the 
determination of whether a person is a ``creditor'' is based on the 
person's business volume. The commenter asserted that it makes 
compliance difficult because a creditor would not know in advance how 
many transactions it will process in any given year. The commenter 
stated that if disclosures are unnecessary for small entities, they are 
also unnecessary for large ones.
Final Rule
    The Bureau has considered the comments and has concluded that the 
existing thresholds used to determine whether a person is a creditor 
under Regulation Z in Sec.  1026.2(a)(17)(v) should be retained in this 
final rule. TILA section 103(g) provides that the definition of 
creditor refers to a person who ``regularly extends'' consumer credit. 
The Bureau believes that it does not have information in connection 
with this rulemaking to support a determination that the requirements 
of TILA should not apply to entities that regularly extend consumer 
credit solely because they are small businesses. The Bureau believes 
that the volume-based exemptions in Sec.  1026.2(a)(17)(v) are intended 
to address the potentially significant differences in abilities to 
comply with Regulation Z's disclosures requirements between entities 
that provide disclosures on a frequent basis, because they regularly 
extend consumer credit, and entities that provide disclosures on an 
infrequent basis, because they extend consumer credit on an irregular 
basis. The Bureau did not propose in the TILA-RESPA Proposal new 
thresholds to replace the existing thresholds used to determine whether 
a person is a creditor under Regulation Z, and does not currently have 
information sufficient to support adjusting the existing thresholds. 
Based on the significant effect such an amendment could potentially 
have on the market, especially considering that the definition applies 
to all of Regulation Z, the Bureau believes it would need to obtain 
additional information, possibly through further notice and comment, 
and conduct additional study of the issue before issuing a final rule 
on the issue.
    The Bureau believes the numerical thresholds in the current 
definition of creditor provide clear guidance to determine whether an 
entity is a creditor for purposes of Sec.  1026.2(a)(17)(v), as the 
Board believed when it originally finalized numerical thresholds for 
the definition of creditor in 1981.\162\ As discussed above, current 
Sec.  1026.2(a)(17)(v) provides that the number of transactions that is 
used to determine whether a person is a creditor is based on the number 
from the past calendar year. Because the Bureau believes the numerical 
thresholds in the current definition facilitate compliance with the 
requirements of Regulation Z for industry and because it does not have 
sufficient information on which to base an amendment to such 
thresholds, the Bureau is not amending the definition of creditor in 
this final rule. Lastly, for reasons discussed below in the general 
section-by-section analysis of Sec.  1026.19, the Bureau has also 
concluded that it will not adopt a small business exemption with 
respect to the integrated disclosure requirements being adopted in this 
final rule.
---------------------------------------------------------------------------

    \162\ 46 FR 20848, 20851 (April 7, 1981) (``The Board believes 
these numerical tests will be most useful in cases when a person 
does not extend credit as part of its primary business and therefore 
is genuinely unsure whether it is a `creditor' for Truth in Lending 
purposes'').
---------------------------------------------------------------------------

2(a)(25) Security Interest
    Under the definition of the term ``security interest'' in current 
Sec.  1026.2(a)(25), for purposes of the disclosure requirements in 
Sec. Sec.  1026.6 and 1026.18, the term does not include an interest 
that arises solely by operation of law. For consistency and to 
facilitate compliance with TILA, pursuant to its authority under TILA 
section 105(a), the Bureau proposed a conforming amendment to the 
definition of security interest that would have extended this exemption 
to disclosures required under proposed Sec. Sec.  1026.19(e) and (f), 
and 1026.38(l)(6). The same conforming amendment would have been made 
to comment 2(a)(25)-2. Having received no comments on the conforming 
amendment, the Bureau is adopting the conforming amendment as proposed, 
pursuant to its authority under TILA section 105(a), for consistency 
and to facilitate compliance with TILA. The Bureau received comments 
from a mortgage broker commenter that appeared to seek clarification 
from the Bureau with respect to what makes a particular type of 
property interest a ``security interest'' for purposes of Sec.  
1026.2(a)(25). The Bureau believes that

[[Page 79772]]

this question is adequately addressed by existing comment 2(a)(25)-1.
Section 1026.3 Exempt Transactions
    In the TILA-RESPA Proposal, the Bureau proposed a partial exemption 
from the disclosure requirements of proposed Sec.  1026.19(e), (f), and 
(g) for certain mortgage loans, and accordingly, proposed conforming 
amendments to Sec.  1026.3(h) to reflect this exemption. The Bureau 
also proposed amendments to the commentary to Sec.  1026.3(a) to 
clarify the current exemption for certain trusts.
3(a) Business, Commercial, Agricultural, or Organizational Credit
    TILA section 104(1), 15 U.S.C. 1603(1), excludes from TILA's 
coverage extensions of credit to, among others, organizations. 
Accordingly, Sec.  1026.3(a)(2) provides that Regulation Z does not 
apply to extensions of credit to other than a natural person. The 
Bureau proposed revising comments 3(a)-9 and -10 to clarify that credit 
extended to certain trusts for tax or estate planning purposes is 
considered to be extended to a natural person rather than to an 
organization and, therefore, is not exempt from the coverage of 
Regulation Z under Sec.  1026.3(a)(2).
    Existing comment 3(a)-10 discusses land trusts, a relatively 
uncommon way of structuring consumer credit in which the creditor holds 
title to the property in trust and executes the loan contract as 
trustee on behalf of the trust. The comment states that, although a 
trust is technically not a natural person, such arrangements are 
subject to Regulation Z because ``in substance (if not form) consumer 
credit is being extended.'' This TILA-RESPA Proposal amended comment 
3(a)-10 to extend this rationale to more common forms of trusts. 
Specifically, proposed comment 3(a)-10 would have noted that consumers 
sometimes place their assets in trust with themselves as trustee(s), 
and with themselves or themselves and their families or other 
prospective heirs as beneficiaries, to obtain certain tax benefits and 
to facilitate the future administration of their estates. Further, 
proposed comment 3(a)-10 would have stated that Regulation Z applies to 
credit that is extended to such a trust, even if the consumer who is 
both trustee and beneficiary executes the loan documents only in the 
capacity of the trustee, for the same reason the existing comment notes 
with respect to land trusts: such transactions are extensions of 
consumer credit in substance, if not in form. The Bureau proposed 
revising comment 3(a)-9 to cross-reference comment 3(a)-10.
    A number of industry trade association commenters noted that 
proposed comment 3(a)-10 was ambiguous in its application to trusts 
with multiple beneficiaries. Specifically, the commenters asked for 
clarification with respect to which beneficiary should receive the 
disclosures required by proposed Sec.  1026.19(e), (f), and (g), and 
which beneficiary has the right to rescind the transaction under the 
conditions described in Sec.  1026.23. The same commenters also asked 
the Bureau to clarify that only revocable trusts are covered by the 
proposed language, noting that mortgage loans made to other types of 
trusts are niche products that do not meet GSE underwriting guidelines, 
are subject to substantial due diligence and as such should not be 
subject to Regulation Z.
    After consideration of the comments received, the Bureau is 
adopting comments 3(a)-9 and -10 generally as proposed. The proposed 
comments are intended to clarify that the benefits of the disclosures 
required by Sec.  1026.19(e), (f), and (g) extend to any consumer 
involved in a transaction that in substance extends consumer credit, 
regardless of whether that consumer is the direct mortgage obligor or a 
beneficiary of a trust to which such credit has been extended. With 
that rationale in mind, the Bureau believes that the intent of the 
comment is to clarify that those provisions of Regulation Z that apply 
to consumers will also apply to trust beneficiaries who are in essence 
acting as consumers. Accordingly, specific guidance with respect to the 
commenters' requests for clarification can be found in Sec. Sec.  
1026.17(d) and 1026.23(a)(4) and their associated commentary, which 
provide guidance with respect to consumers' rights and benefits in 
transactions that involve multiple obligors and the right to rescind a 
transaction.
    In addition, because the proposed comment clarifies the coverage of 
loans made to trusts under Regulation Z based on the purpose of the 
loan, rather than on the loan's frequency in the market or its 
compliance with GSE underwriting guidelines, the Bureau declines to add 
language to the comment specifying that the trusts covered by the 
proposed comments are limited to revocable trusts. Comments 3(a)-9 and 
(a)-10 are therefore finalized as proposed, except that the Bureau is 
making modifications to comment 3(a)-10 to add the word ``primarily,'' 
in order to bring the language of the comment into conformity with the 
definition of ``consumer credit'' provided in Sec.  1026.2(a)(12), and 
to clarify that the application of the exemption extends to trusts that 
benefit the consumer but are executed by a third-party trustee, such as 
a bank or an attorney. The Bureau believes that trusts in which the 
consumer is a beneficiary but the trustee is a third party, similar to 
trusts in which the consumer is both the trustee and beneficiary, are 
in substance (if not form) consumer credit transactions. The Bureau is 
revising comments 3(a)-9 and -10 accordingly, pursuant to its authority 
under TILA section 105(a), because it believes it will assure a 
meaningful disclosure of credit terms to consumers and promote the 
informed use of credit.
3(h) Partial Exemption for Certain Mortgage Loans
    In the TILA-RESPA Proposal, the Bureau proposed a new Sec.  
1026.3(h) to provide an exemption from proposed Sec.  1026.19(e), (f), 
and (g) for transactions that satisfy several criteria associated with 
certain housing assistance loan programs for low- and moderate-income 
persons. As discussed below, proposed Sec.  1026.19(e) and (f) would 
have established the requirement to provide the new integrated 
disclosures for closed-end transactions secured by real property, other 
than reverse mortgages, and proposed Sec.  1026.19(g) would have 
established the requirement to provide a special information booklet 
for those transactions. The partial exemption in proposed Sec.  
1026.3(h) was meant to parallel Sec.  1024.5(c)(3), discussed above; it 
was designed to create consistency with Regulation X and to codify a 
disclosure exemption previously granted by HUD. Thus, under each of the 
two proposed exemptions, lenders would have been exempted from 
providing the integrated disclosures for transactions that satisfy the 
exemption's conditions, even if the transaction otherwise would be 
subject to RESPA.
    The Bureau believed that the proposed exemption created consistency 
with Regulation X and therefore would facilitate compliance with TILA 
and RESPA. In addition, the Bureau believed that the special disclosure 
requirements that covered persons must meet to qualify for the proposed 
exemption helped ensure that the features of these mortgage 
transactions were fully, accurately, and effectively disclosed to 
consumers in a manner that would have permitted consumers to understand 
the costs, benefits, and risks associated with these mortgage 
transactions, consistent with Dodd-Frank Act section 1032(a). The 
proposed exemption would have also improved consumer awareness and

[[Page 79773]]

understanding of transactions involving residential mortgage loans, 
which is in the interest of consumers and the public, consistent with 
Dodd-Frank Act section 1405(b). The Bureau considered the factors in 
TILA section 105(f) and believed that, for the reasons discussed above, 
an exemption was appropriate under that provision. Specifically, the 
Bureau determined that the proposed exemption is appropriate for all 
affected borrowers, regardless of their other financial arrangements 
and financial sophistication and the importance of the loan to them. 
Similarly, the Bureau determined that the proposed exemption was 
appropriate for all affected loans, regardless of the amount of the 
loan and whether the loan is secured by the principal residence of the 
consumer. Furthermore, the Bureau determined that, on balance, the 
proposed exemption would have simplified the credit process without 
undermining the goal of consumer protection or denying important 
benefits to consumers.
    The proposed exemption would have applied only to transactions 
secured by a subordinate lien. For the same reasons discussed in the 
section-by-section analysis of proposed Sec.  1024.5(c)(3), the Bureau 
requested comment on whether the exemption in proposed Sec.  1026.3(h) 
should extend to first liens. In addition, for the reasons discussed 
above, the Bureau sought comment on whether requirements and features 
that may serve as interest substitutes should be considered 
``interest'' and, therefore, be impermissible for loans seeking to 
qualify for this partial exemption. The Bureau also sought comment on 
the types of loan requirements and features that should be similarly 
deemed ``interest'' for purposes of this partial exemption. 
Alternatively, the Bureau sought comment on whether such requirements 
and features should be permissible within the exemption on the grounds 
that the disclosure required by proposed Sec.  1026.3(h)(6) is 
sufficient to inform consumers of such loan terms.
    The Bureau proposed several comments in an effort to provide 
additional guidance regarding Sec.  1026.3(h). Proposed comment 3(h)-1 
would have noted that transactions that meet the requirements of Sec.  
1026.3(h) would be exempt from only the integrated disclosure 
requirements and not from any other applicable requirement of 
Regulation Z. The comment would have further clarified that Sec.  
1026.3(h)(6) required the creditor to comply with the disclosure 
requirements of Sec.  1026.18, even if the creditor would not otherwise 
be subject to that section because of proposed Sec.  1026.19(e), (f), 
and (g). In addition, the comment would have noted that the consumer 
also had the right to rescind the transaction under Sec.  1026.23, to 
the extent that provision was applicable.
    The Bureau also proposed comment 3(h)-2, which would have explained 
that the two conditions that the transaction not require the payment of 
interest under Sec.  1026.3(h)(3) and that repayment of the amount of 
credit extended be forgiven or deferred in accordance with Sec.  
1026.3(h)(4) must be evidenced by terms in the credit contract. The 
comment would have further clarified that, although the other 
conditions did not need to be reflected in the credit contract, the 
creditor would need to retain evidence of compliance with those 
requirements, as required by Sec.  1026.25(a). The Bureau solicited 
comment on whether this exemption should be adopted in Regulation Z.
    In comments provided to the Bureau, a Federal government agency and 
a not-for-profit organization, both of which provide housing assistance 
to consumers, requested that the Bureau extend the exemption to apply 
to loans secured by first liens. They reasoned that first-lien loan 
transactions provided to low-income borrowers who do not qualify for 
other sources of credit have the same characteristics as the 
subordinate loan transactions that are exempted in proposed Sec.  
1026.3(h). The not-for-profit organization further commented that the 
Bureau should not consider costs such as mortgage insurance or shared 
equity/shared appreciation to be ``interest substitutes'' for purposes 
of determining whether a transaction qualifies for the exemption, but 
noted that those costs should nonetheless be disclosed by the creditor.
    In response to the requirement that transactions exempted by 
proposed Sec.  1026.3(h) continue to comply with the disclosure 
requirements set forth in Sec.  1026.18, several industry trade 
associations proposed that creditors be given the option of either 
complying with the requirements of Sec.  1026.18 or complying with the 
integrated disclosures.
    With respect to the comment requesting that the Bureau extend the 
exemption to first-lien transactions, the Bureau declines to extend the 
exemption as such. The Bureau understands that some first-lien 
transactions may be extended that satisfy the conditions of this 
exemption other than the requirement that the transaction be secured by 
a subordinate lien. However, the Bureau does not believe that such 
transactions should be exempted from the requirements of Sec.  
1026.19(e), (f), and (g). The disclosure requirements under Sec.  
1026.19(e) and (f), as discussed in the section-by-section analyses of 
Sec. Sec.  1026.37 and 1026.38 below, provide information regarding 
costs that consumers in such transactions may still be required to pay 
with respect to the real property, such as real estate taxes and 
homeowner's insurance. In addition, the special information booklet 
required by Sec.  1026.19(g) may provide valuable information to 
consumers regarding the costs of home ownership. The Bureau has 
conducted consumer testing of the format in which the information is 
presented in the integrated disclosures to ensure that the disclosures 
are effective in aiding consumer understanding of these costs. Unlike 
with an exempted transaction secured by a subordinate lien in which 
consumers would receive an integrated disclosure containing this 
information in connection with the first-lien transaction, consumers in 
a first-lien transaction, if it were exempted, would not receive this 
information in the format the Bureau has tested with consumers. In 
addition, as discussed with respect to the parallel exemption under 
Sec.  1024.5, as discussed above, the Bureau has decided to keep with 
its intent to codify the exemption previously granted by HUD, which 
likewise only applied to subordinate loan transactions. Accordingly, 
the Bureau has determined to adopt the exemption as proposed.
    With respect to the comment that costs such as mortgage insurance 
or shared equity/shared appreciation not be considered interest for 
purposes of the condition that the loan not require the payment of 
interest, but that they be disclosed as non-interest costs in 
connection with exempted transactions, the Bureau has determined not to 
expand the condition to cover such costs. The Bureau points the 
commenter to Sec.  1026.18 and its commentary for the treatment of 
mortgage insurance and shared equity/shared appreciation programs for 
purposes of the closed-end disclosures required under that section.
    With respect to the comment that creditors be given the option of 
either complying with the integrated disclosure requirements or Sec.  
1026.18, the Bureau declines to provide this option. Because the intent 
of the exemption is to codify the exemption as provided by HUD, and 
additionally, decrease the burden of disclosure for creditors involved 
in the covered transactions, the Bureau declines to amend the proposed 
rule and its commentary to include the commenters' suggested 
alternative. For the reasons

[[Page 79774]]

described above, the Bureau is adopting Sec.  1026.3(h)(6) and comments 
3(h)-1 and -2 substantially as proposed, with minor modifications for 
clarity.
Section 1026.4 Finance Charge
Background
    Section 106(a) of TILA defines the finance charge as ``the sum of 
all charges, payable directly or indirectly by the person to whom the 
credit is extended, and imposed directly or indirectly by the creditor 
as an incident to the extension of credit,'' excluding ``charges of a 
type payable in a comparable cash transaction.'' 15 U.S.C. 1605(a). 
Despite this broad general definition of the finance charge, TILA 
excludes numerous charges from the finance charge. For example, TILA 
generally includes in the finance charge credit insurance and property 
and liability insurance charges or premiums, but it also excludes such 
amounts if certain conditions are met. TILA section 106(b), (c); 15 
U.S.C. 1605(b), (c). TILA also specifically excludes from the 
computation of the finance charge certain charges related to the 
perfecting of a security interest, and various fees in connection with 
loans secured by real property, such as title examination fees, title 
insurance premiums, fees for preparation of loan-related documents, 
escrows for future payment of taxes and insurance, notary fees, 
appraisal fees, pest and flood-hazard inspection fees, and credit 
report fees. TILA section 106(d), (e); 15 U.S.C. 1605(d), (e). Such 
amounts would otherwise be included in the finance charge under the 
general definition.
    Current Sec.  1026.4 implements TILA section 106 by largely 
mirroring the statutory definition of finance charge and the specific 
exclusions from that definition. In addition, Sec.  1026.4 contains 
certain exclusions from the finance charge that are not specifically 
excluded in the statute. For example, current Sec.  1026.4(c) 
specifically excludes application fees and forfeited interest from the 
definition of finance charge, whereas TILA does not.
    There are longstanding concerns about the ``some fees in, some fees 
out'' approach to the finance charge in TILA and Regulation Z. In 1995, 
Congress directed the Board to study the finance charge, including the 
feasibility of treating as finance charges all costs required by the 
creditor or paid by the consumer as an incident of the credit.\163\ In 
April 1996, the Board submitted its report to Congress, in which it 
noted both the compliance difficulties associated with the existing 
finance charge definition, but also the potential drawbacks of adopting 
an ``all-inclusive finance charge rule,'' such as the implementation 
costs for industry (which it stated ``would likely be many millions of 
dollars''), the necessity of reeducation regarding the resulting 
increased APRs, and the effects on the usefulness of the APR caused by 
the inclusion of optional services in the finance charge.\164\ The 
Board did not recommend the adoption of an ``all-inclusive finance 
charge rule'' in the report, but instead, stated it believed that 
``further debate must precede the crafting of any proposals for 
statutory changes to finance charge disclosures affecting the APR.'' 
\165\
---------------------------------------------------------------------------

    \163\ Public Law 104-29, 109 Stat. 271 (1995).
    \164\ See Bd. Of Governors of the Fed. Reserve Sys., Report to 
the Congress on Finance Charges for Consumer Credit under the Truth 
in Lending Act 10-11 (April 1996), available at http://www.federalreserve.gov/boarddocs/rptcongress/fc_study.pdf.
    \165\ Id. at 12.
---------------------------------------------------------------------------

    Following that study, in July 1998, the Board and HUD issued the 
Board-HUD Joint Report, in which the agencies also noted concerns with 
the ``some fees in, some fees out'' approach to the finance 
charge.\166\ The Board-HUD Joint Report states that a fundamental 
problem with the finance charge is that the ``cost of credit'' has 
different meanings from the perspective of the consumer and the 
creditor.\167\ From the creditor's perspective, the cost of credit may 
mean the interest and fee income that the creditor receives in exchange 
for providing credit to the consumer.\168\ However, the consumer views 
the cost of credit as what the consumer pays for the credit, regardless 
of the persons to whom such amounts are paid.\169\ The current ``some 
fees in, some fees out'' approach to the finance charge largely 
reflects the creditor's, rather than the consumer's, perspective. The 
Board-HUD Joint Report recommended that the definition of finance 
charge be expanded to what it titled the ``Required Cost of Credit 
Test'' under which the finance charge would include ``the costs the 
consumer is required to pay to get the credit.'' \170\
---------------------------------------------------------------------------

    \166\ Bd. Of Governors of the Fed. Reserve Sys. & U.S. Dep't of 
Hous. & Urban Dev., Joint Report to the Congress Concerning Reform 
to the Truth in Lending Act and the Real Estate Settlement 
Procedures Act (July 1998), available at http://www.federalreserve.gov/boarddocs/rptcongress/tila.pdf.
    \167\ Id. at 10.
    \168\ Id.
    \169\ Id.
    \170\ Id. at 13-16. A subsequent joint report issued by HUD and 
the U.S. Department of the Treasury expressly adopted this 
recommendation, concluding that the `` `all in approach' would 
improve the APR's usefulness and at the same time lessen the 
compliance burden for industry.'' U.S. Dep't of Treas. and U.S. 
Dep't of Hous. and Urban Dev., Joint Report on Recommendations to 
Curb Predatory Home Mortgage Lending, available at http://archives.hud.gov/reports/treasrpt.pdf.
---------------------------------------------------------------------------

    In its 2009 Closed-End Proposal, the Board proposed to broaden the 
definition of the finance charge in closed-end transactions secured by 
real property or a dwelling, citing the Board-HUD Joint Report and 
consumer testing conducted by the Board as support for an expanded 
approach to the finance charge. 74 FR 43232, 43243 (Aug. 26, 2009). 
First, the Board reasoned that excluding certain fees from the finance 
charge undermines the effectiveness of the APR as a measure of the true 
cost of credit. Id. Second, the Board's 2009 Closed-End Proposal stated 
that the numerous exclusions from the finance charge encourage lenders 
to shift the cost of credit to excluded fees. Id. This practice 
undermines the APR's utility and has resulted in the creation of new 
so-called ``junk fees,'' such as fees for preparing loan-related 
documents, which are not part of the finance charge. Third, the Board 
cited the complexity of the implementing rules, which create 
significant regulatory burden and litigation risk, as support for a 
simplified definition of the finance charge. Id.
    In light of these concerns about the finance charge, the Board's 
2009 Closed-End Proposal would have replaced the ``some fees in, some 
fees out'' approach to the finance charge for mortgage loans with a 
more inclusive approach to ensure that the finance charge and 
corresponding APR disclosed to consumers provide a more complete and 
useful measure of the cost of credit. The Board did not finalize its 
proposal prior to the transfer of its TILA rulemaking authority to the 
Bureau in July 2011.
The Bureau's Proposal
    For the reasons set forth in the Board's 2009 Closed-End Proposal, 
the TILA-RESPA Proposal would have revised the test for determining the 
finance charge in Sec.  1026.4. The Bureau's proposal would have 
largely mirrored the Board's 2009 Closed-End Proposal, with limited 
clarifying changes. Pursuant to its authority under TILA section 105(a) 
and (f), Dodd-Frank Act section 1032(a), and, for residential mortgage 
loans, Dodd-Frank Act section 1405(b), the proposed rule would have 
amended Sec.  1026.4 to replace the current ``some fees in, some fees 
out'' approach to the finance charge with a more inclusive test based 
on the general definition of finance charge in TILA section 106(a). 15 
U.S.C. 1601 note; 1604(a), (f); 12 U.S.C. 5532(a).

[[Page 79775]]

    Under proposed Sec.  1026.4, the current exclusions from the 
finance charge would have been largely eliminated for closed-end 
transactions secured by real property or a dwelling. Specifically, 
under the proposed rule, a fee or charge would have been included in 
the finance charge if it is (1) ``payable directly or indirectly by the 
consumer'' to whom credit is extended, and (2) ``imposed directly or 
indirectly by the creditor as an incident to or a condition of the 
extension of credit.'' However, the finance charge would have continued 
to exclude fees or charges paid in comparable cash transactions. The 
proposed rule also would have retained a few narrow exclusions from the 
finance charge: late fees and similar default or delinquency charges 
(excluded under current Sec.  1026.4(c)(2)), seller's points (excluded 
under current Sec.  1026.4(c)(5)), amounts required to be paid into 
escrow accounts if the amounts would not otherwise be included in the 
finance charge (excluded under current Sec.  1026.4(c)(7)(v)), and 
premiums for property and liability insurance under certain conditions 
(excluded under current Sec.  1026.4(d)(2)).
Effect on Other Rules
    The Bureau's proposed rule recognized that a more inclusive finance 
charge would affect coverage under other laws, such as higher-priced 
mortgage loan (HPML) and HOEPA protections, and would have implications 
for the Bureau's HOEPA, Escrows, Appraisals, and Ability-to-Repay 
rulemakings under title XIV of the Dodd-Frank Act. These rulemakings 
have since been finalized by the Bureau.\171\
---------------------------------------------------------------------------

    \171\ References to the Bureau's rulemakings under title XIV of 
the Dodd-Frank Act are to the final rules issued by the Bureau in 
January 2013. See part II.F for a discussion of these rulemakings.
---------------------------------------------------------------------------

    Specifically, absent further action by the Bureau, the more 
inclusive finance charge would have:
     Caused more closed-end loans to trigger HOEPA protections 
for high-cost loans. The protections include special disclosures, 
restrictions on certain loan features and lender practices, and 
strengthened consumer remedies. The more inclusive finance charge also 
would have affected both the points and fees test (which currently uses 
the finance charge as its starting point) and the APR test (which under 
the Dodd-Frank Act depends on comparisons to the average prime offer 
rate (APOR)) for defining what constitutes a high-cost loan.\172\
---------------------------------------------------------------------------

    \172\ Under rules implementing provisions of the Dodd-Frank Act, 
a loan is defined as a high-cost mortgage, subject to HOEPA 
protections, if the total points and fees payable in connection with 
the transaction exceed specified thresholds (points and fees 
coverage test); the transaction's APR exceeds the applicable average 
prime offer ate (APOR) by a specified threshold (APR coverage test); 
or the transaction has certain prepayment penalties. First, under 
the points and fees coverage test, the definition of points and fees 
includes, as its starting point, all items included in the finance 
charge. Therefore, a potential consequence of the more inclusive 
finance charge would have been that more loans might exceed HOEPA's 
points and fees threshold because new categories of charges would 
have been included in the calculation of total points and fees for 
purposes of that coverage test. In addition, under the APR coverage 
test, the more inclusive finance charge could have resulted in some 
additional loans being covered as high-cost mortgages because 
closed-end loans would have had higher APRs. There are currently 
some differences between APR and APOR, the latter of which is 
generally calculated using data that includes only contract interest 
rates and points but not other origination fees. See 75 FR 58539, 
58660-62 (Sept. 24, 2010). The current APR includes not only 
discount points and origination fees but also other charges the 
creditor retains and certain third-party charges. The more inclusive 
finance charge, which would have also included most third-party 
charges, would have widened the disparity between the APR and APOR 
and caused more closed-end loans to qualify as high-cost mortgages. 
Similar implications would have applied to each respective 
rulemaking in which coverage depends on comparing a transaction's 
APR to the applicable APOR. The Bureau notes, however, that the 
Dodd-Frank Act expands HOEPA to apply to more types of mortgage 
transactions, including purchase money mortgage loans and open-end 
credit plans secured by a consumer's principal dwelling. However, 
the proposed more inclusive finance charge would have applied only 
to closed-end loans. Therefore, the more inclusive finance charge 
would not have affected the potential coverage of open-end credit 
plans under HOEPA.
---------------------------------------------------------------------------

     Caused more loans to trigger Dodd-Frank Act requirements 
to maintain escrow accounts for first-lien HPMLs under the Escrows 
rulemaking. Coverage depends on comparing a transaction's APR to the 
applicable APOR.
     Caused more loans to trigger Dodd-Frank Act requirements 
to obtain one or more interior appraisals under the Interagency 
Appraisals rulemaking. Coverage depends on comparing a transaction's 
APR to the applicable APOR.
     Reduced the number of loans that would otherwise be 
``qualified mortgages'' under the 2013 ATR Final Rule, given that 
qualified mortgages cannot have points and fees in excess of three 
percent of the total loan amount. The changes also would have decreased 
the number of qualified mortgages that receive a safe harbor from 
liability under the ability-to-repay provisions because the 2013 ATR 
Final Rule provides that qualified mortgages that are higher-priced 
receive a rebuttable presumption of compliance with the ability-to-
repay requirements, rather than a safe harbor. In addition, more loans 
would have been required to comply with separate underwriting 
requirements applicable to higher-priced balloon loans, and been 
ineligible for certain exceptions authorizing creditors to offer 
prepayment penalties on fixed rate, non-higher-priced qualified 
mortgage loans.\173\ Again, status as ``higher-priced'' depends on 
comparing APR to the applicable APOR.
---------------------------------------------------------------------------

    \173\ Specifically, the Dodd-Frank Act and the 2013 ATR Final 
Rule generally prohibit prepayment penalties on closed-end, 
dwelling-secured mortgage loans, except on fixed rate qualified 
mortgages that are not higher-priced. For balloon loans, the Dodd-
Frank Act and the 2013 ATR Final Rule generally require creditors to 
assess consumers' ability to repay a higher-priced loan with a 
balloon payment using the scheduled payments required under the 
terms of the loan including any balloon payment, and based on income 
and assets other than the dwelling itself. 78 FR 6408, 6585 (Jan. 
30, 2013). Only consumers with substantial income or assets would 
likely qualify for such a loan.
---------------------------------------------------------------------------

    The Board previously proposed two means of reconciling an expanded 
definition of the finance charge with thresholds for loan APR and 
points and fees. On several occasions, the Board proposed to replace 
the APR with a ``transaction coverage rate'' (TCR) as a transaction-
specific metric a creditor compares to the APOR to determine whether 
the transaction meets the higher-priced loan threshold in current Sec.  
1026.35(a). See 76 FR 27390, 27411-12 (May 11, 2011); 76 FR 11598, 
11608-09 (Mar. 2, 2011); 75 FR 58539, 58660-61 (Sept. 24, 2010).\174\ 
Although adopting the TCR would mean that lenders would have to 
calculate one metric for purposes of disclosure and another for 
purposes of regulatory coverage, the Board stated that both metrics 
would be simpler to compute than APR today using the current definition 
of finance charge.\175\ In addition, the Board proposed to amend the 
definition of points and fees to retain the existing treatment of 
certain charges in the definition of points and fees for purposes of 
determining HOEPA coverage. 75 FR 58539, 58636-38 (Sept. 24, 2010).
---------------------------------------------------------------------------

    \174\ The TCR would have been determined in accordance with the 
applicable rules of Regulation Z for the calculation of the APR for 
a closed-end transaction, except that the prepaid finance charge for 
purposes of calculating the transaction coverage rate includes only 
charges that will be retained by the creditor, mortgage broker, or 
affiliates of either. The Board's proposed definition of TCR varied 
slightly between the 2010 Mortgage Proposal and the 2011 Escrows 
Proposal as to treatment of charges retained by mortgage broker 
affiliates. In its 2012 HOEPA Proposal, the Bureau proposed to use 
the 2011 Escrows Proposal version, which would include charges 
retained by broker affiliates. 77 FR 49090, 49102 (Aug. 15, 2012).
    \175\ To the extent that creditors believed that it would be 
burdensome to calculate two metrics, the Board's proposal stated 
that they could continue to use APR for both coverage and disclosure 
purposes.

---------------------------------------------------------------------------

[[Page 79776]]

    In the TILA-RESPA Proposal, the Bureau acknowledged that it is not 
clear from the legislative history of the Dodd-Frank Act whether 
Congress was aware of the Board's 2009 Closed-End Proposal to expand 
the definition of finance charge or whether Congress considered the 
interplay between an expanded definition and coverage under various 
thresholds addressed in the Dodd-Frank Act. In light of this fact and 
the concerns raised by commenters on the Board's 2009 Closed-End 
Proposal regarding effects on access to credit, the Bureau believed 
that it was appropriate to explore alternatives to implementation of 
the expanded finance charge definition for purposes of coverage under 
HOEPA and the other regulatory regimes.
    For this reason, the TILA-RESPA Proposal sought comment on 
potential coverage threshold modifications. In particular, the proposal 
sought comment on the prior Board proposals and other potential methods 
of addressing the impact of a more inclusive approach to the finance 
charge on affected regulatory regimes. The proposal also requested 
comment on the potential advantages and disadvantages to both consumers 
and creditors of using different metrics for purposes of disclosures 
and for purposes of determining coverage of the affected regulatory 
regimes. With regard to the TCR, the Bureau stated its belief that the 
potential compliance burden associated with the two-calculation 
requirement would be mitigated by the fact that both TCR and APR would 
be easier to compute than the APR today using the current definition of 
finance charge. The Bureau also requested comment on whether use of the 
TCR or other trigger modifications should be optional, so that 
creditors could use the broader definition of finance charge to 
calculate APR and points and fees triggers if they preferred.
    Finally, the Bureau requested data that would allow it to perform a 
quantitative analysis to determine the impacts of a broader finance 
charge definition on APR thresholds for HOEPA and the other regimes. In 
its 2009 Closed-End Proposal, the Board relied on a 2008 survey of 
closing costs conducted by Bankrate.com that contained data for 
hypothetical $200,000 loans in urban areas. Based on that data, the 
Board estimated that the share of first-lien refinance and home 
improvement loans that were then subject to HOEPA would increase by 0.6 
percent if the definition of finance charge were expanded as proposed. 
In the TILA-RESPA Proposal, the Bureau stated that it was considering 
the 2010 version of that survey, but also sought additional data that 
would provide more representative information regarding closing and 
settlement costs that would allow for a more refined analysis of the 
proposals. The Bureau generally sought comment on its plans for data 
analysis, as well as additional data and comment on the potential 
impacts of a broader finance charge definition and potential 
modifications to the triggers.
    In addition to the measures proposed by the Board, the Bureau 
proposed language to adopt the TCR and to exclude the additional 
charges from the HOEPA points and fees test in its 2012 HOEPA Proposal. 
77 FR 49090 (Aug. 15, 2012). The 2012 Interagency Appraisals Proposal 
also proposed to adopt the TCR. 77 FR 54722 (Sept. 5, 2012). The 2013 
HOEPA, Escrows, and Appraisals Final Rules did not adopt the TCR or 
changes to the points and fees test to account for the expanded finance 
charge, but those final rules noted the Bureau would consider comments 
on those aspects of the proposals in conjunction with the rule 
addressing the expanded finance charge proposal. See 78 FR 6856 (Jan. 
31, 2013); 78 FR 4726 (Jan. 22, 2013); 78 FR 10368 (Feb. 13, 2013).
Timing of Implementation
    The TILA-RESPA Proposal sought comment on the timing of 
implementation of any changes to the finance charge definition. The 
Bureau noted that there is no statutory deadline for issuing final 
rules to integrate the mortgage disclosures under TILA and RESPA, and 
that the Bureau expected that it may take some time to conduct 
quantitative testing of the forms prior to issuing final rules. 
However, the Bureau also expected to issue several final rules to 
implement provisions of title XIV of the Dodd-Frank Act by January 21, 
2013, including the rules discussed above, that address thresholds for 
compliance with various substantive requirements under HOEPA and other 
Dodd-Frank Act provisions. The Bureau noted that, in some cases, the 
Dodd-Frank Act requires that regulations implementing title XIV of the 
Dodd-Frank Act take effect within one year of issuance. The Bureau 
subsequently issued those rules in January 2013. The rules will take 
effect in January 2014.
    In the proposal, the Bureau stated its belief that it would be 
preferable that any changes to the definition of finance charge and any 
related adjustments to regulatory triggers take effect at the same 
time, to provide for consistency and efficient systems modification. 
The Bureau also believed that it may be advantageous to consumers and 
creditors to make any such changes at the same time that creditors are 
implementing new title XIV requirements involving APR and points and 
fees thresholds, rather than waiting until the Bureau finalizes other 
aspects of the TILA-RESPA rulemaking, which relates primarily to 
disclosures. If the Bureau expanded the definition of finance charge, 
the Bureau believed this approach would likely provide the consumer 
benefits of the final rule at an earlier date as well as avoid 
requiring creditors to make two sets of systems and procedures changes 
focused on determining which loans trigger particular regulatory 
requirements. However, given that implementation of the disclosure-
related elements of the TILA-RESPA Proposal would have required systems 
and procedures changes, the Bureau noted that there may be advantages 
to delaying any change in the definition of finance charge and any 
related adjustments to regulatory triggers until those changes 
occurred. The Bureau, therefore, requested comment on how to sequence 
the changes, and the benefits and costs to both consumers and industry 
of both approaches.
    After the Bureau issued the TILA-RESPA Proposal, the Bureau 
received informal feedback regarding the timing of implementation and 
determined that it was appropriate to address the expanded finance 
charge proposal in conjunction with the TILA-RESPA Final Rule, rather 
than with the Bureau's Title XIV Rulemakings that were issued in 
January 2013. For this reason, the Bureau extended the comment period 
for comments related to the expanded finance charge and published its 
intention regarding the timing of a final rule related to the finance 
charge definition. See 77 FR 54843 (Sept. 6, 2012).
Comments
    The Bureau received several hundred comments on this aspect of the 
TILA-RESPA Proposal. Industry commenters and one large consumer 
advocacy group commenter generally opposed finalizing the expanded 
finance charge at this time.\176\ While some industry commenters 
supported the idea of

[[Page 79777]]

improving the APR to make it a more useful metric for consumers and 
simplify the calculation, many asserted that the Bureau had not 
sufficiently considered the impact of the proposed provisions in light 
of the significant regulatory changes taking place as a result of the 
Bureau's Title XIV Rulemakings. They also asserted that sweeping 
changes to the finance charge calculation would be overly burdensome in 
light of the Bureau's other rulemakings. One large consumer advocacy 
group commenter, while generally supporting the expanded definition, 
argued that the Bureau should not adopt the expanded finance charge 
definition at this time because of complications that would arise due 
to the Bureau's other rulemakings. That commenter stated also that the 
Bureau should further study the impact of the expanded finance charge 
on its other rulemakings.
---------------------------------------------------------------------------

    \176\ In addition to commenting on the threshold question of 
whether the Bureau should adopt a more inclusive finance charge, 
commenters also argued that certain specific exclusions from the 
finance charge should be retained or removed in the event the Bureau 
moves to a more inclusive finance charge (for example, voluntary 
credit insurance and title insurance charges). Because the Bureau is 
not adopting a more inclusive finance charge definition at this 
time, those comments are not specifically addressed here. The Bureau 
will evaluate those comments separately in the event the Bureau 
decides to propose the more inclusive finance charge at a later 
date.
---------------------------------------------------------------------------

    Industry commenters and one consumer advocacy group commenter also 
cited the effect that a more inclusive finance charge would have on 
coverage thresholds under the HOEPA, HPML, and the ATR-QM rulemakings 
as a significant factor weighing against finalizing the proposal. Such 
commenters also noted the impact an expanded finance charge would have 
on State high-cost lending laws. These commenters asserted that, absent 
adjustments by the Bureau and State legislatures, the proposal could 
reduce access to mortgage credit, particularly for smaller loans and 
for borrowers at the lower end of the credit spectrum. For example, a 
national consumer advocacy group commenter estimated that the expanded 
finance charge would add approximately 0.9 percent to 3.5 percent to 
points and fees, depending on loan size and certain settlement cost 
assumptions, and would cause the APR to rise by roughly 0.10 percent to 
0.52 percent, depending on loan size and interest rate. Small entities, 
including a national trade association of community banks, expressed 
concern that if the proposal resulted in more loans being classified as 
HOEPA loans or HPMLs, they may be forced to exit the mortgage market 
either due to increased compliance costs associated with these loans 
(such as the requirement to maintain escrow accounts for HPMLs) or 
because the loans will not be saleable on the secondary market. These 
concerns were echoed in comment letters from the U.S. House of 
Representatives Committee on Small Business and the Small Business 
Administration Office of Advocacy. Some industry commenters questioned 
whether the Bureau thoroughly considered the implications of the 
expanded finance charge on coverage thresholds as they would be revised 
by the Bureau's Title XIV Rulemakings. Similar concerns were expressed 
by the Small Business Review Panel and industry feedback provided in 
response to the Small Business Review Panel Outline. See Small Business 
Review Panel Report at 25. Some industry commenters also questioned the 
Bureau's authority to remove statutory exclusions from the finance 
charge.
    Industry commenters (including numerous small entities), the U.S. 
House of Representatives Committee on Small Business, and the SBA also 
cited significant upfront implementation costs as a reason not to adopt 
the expanded finance charge definition. These commenters stated that to 
accommodate the changes, institutions would be required to reprogram, 
test, and implement significant changes to current systems, update 
written materials, and train employees. Commenters noted that this 
would be particularly burdensome for small creditors, would potentially 
cause some small creditors to exit the residential mortgage market, and 
could increase the cost of credit. One credit union commenter and a 
State credit union trade association estimated costs of $40,000 or more 
to implement the changes, in addition to the time needed for training. 
An organization that operates an APR calculation engine used by some 
credit unions estimated it would take between 500 and 1,000 hours of 
work time to update that system, in addition to staff training time. In 
addition, industry commenters cited ongoing compliance costs as a 
reason not to finalize the proposal. Numerous industry commenters and a 
national association of State housing agencies argued that the proposed 
finance charge definition would require maintaining separate systems 
for calculating the APR for mortgages and non-mortgages, which would 
increase compliance burdens.
    Some industry commenters stated that including third-party closing 
costs that are not controlled by the creditor in the finance charge may 
increase litigation risk. For example, one industry trade association 
commenter noted that litigation risk would increase due to the 
increased possibility for calculation errors in a material disclosure 
associated with extended rescission rights. Similarly, one consumer 
advocacy group commenter noted that the simplified calculation would 
reduce homeowners' ability to use TILA violations to save their homes 
from foreclosure, presumably due to the fact that a simplified finance 
charge definition would lead to fewer technical violations of the rules 
regarding disclosure of the finance charge and APR, which are material 
disclosures that, if not provided accurately, toll the time limitations 
for invoking the right of rescission.
    Some industry commenters, including national and State trade 
associations, stated that the Bureau has not sufficiently demonstrated 
the benefit of the proposed changes and urged the Bureau to conduct 
further analysis of the benefits of the expanded finance charge before 
finalizing the proposed rule. This is similar to industry feedback 
provided in response to the Small Business Review Panel Outline. For 
example, some commenters noted that the Bureau has not engaged in any 
consumer testing to determine if consumers will better understand the 
finance charge or APR disclosures using an expanded finance charge 
definition than under the current framework and suggested that the 
Bureau engage in further testing before finalizing the rule. Similarly, 
many industry commenters, including a national trade association of 
community banks, argued that a more inclusive finance charge would not 
improve consumer understanding of the APR because consumers do not 
understand the APR and do not use it when comparing loans. Some 
commenters cited the Bureau's own consumer testing and prior Board 
consumer testing cited in the TILA-RESPA Proposal as support for this 
position. They also argued that the aspect of the TILA-RESPA Proposal 
that would have emphasized other disclosures over the APR and finance 
charge disclosures undercuts any assertion by the Bureau that the 
expanded finance charge would aid consumer comprehension. Several small 
entity commenters argued that some consumers would be confused by the 
expanded finance charge because they are accustomed to the current APR.
    On the other hand, most consumer advocacy group commenters and two 
State attorneys general supported the proposed changes to the finance 
charge, generally agreeing with the Board and Bureau analysis that the 
expanded finance charge would more accurately disclose the cost of 
credit and enhance consumers' ability to comparison shop, and would 
therefore benefit consumers. For example, one national non-profit 
organization focusing on low-income consumer issues noted that 
eliminating the numerous exclusions from the current definition of 
finance charge would simplify compliance and

[[Page 79778]]

examinations, while discouraging fee manipulation. The State attorneys 
general likewise agreed that a more inclusive definition of finance 
charge would make it easier for consumers to compare loans and easier 
for lenders to calculate the APR.
    Some industry commenters stated that having separate APR 
calculations for closed-end and open-end credit could contribute to 
consumer confusion, particularly for consumers comparing home equity 
lines of credit (HELOCs) with closed-end home equity loans. Similarly, 
consumer advocacy group commenters stated that the proposed changes 
should apply to all forms of credit or, at a minimum, both to HELOCs 
and closed-end mortgages.
    One industry trade association commenter noted that it is not clear 
that the expanded finance charge would reduce the use of junk fees and 
third-party service providers because upfront fee-rate tradeoffs are 
largely determined in the capital markets and are independent of APR 
considerations. Some industry commenters argued that the proposed 
changes to the finance charge would lead to price fixing and other 
anticompetitive behavior by large institutions with the ability to 
influence settlement service provider fees. In contrast, smaller 
institutions that do not have the ability to assert such influence over 
third-party pricing would be priced out of the market. This would 
reduce consumer choice and raise prices in the long run. However, one 
consumer advocacy group commenter cited the current approach to the 
finance charge, which excludes certain third party charges, as creating 
hundreds of dollars in junk fees for consumers and noted that an 
expanded finance charge definition could reduce costs to consumers.
    Industry commenters generally supported adjustments to coverage 
thresholds to mitigate the impact of an expanded finance charge, if the 
expanded finance charge were adopted. Most such commenters favored 
direct adjustments to the numeric APR-based thresholds over adopting 
the TCR as a new metric. However, one mortgage company commenter stated 
that the TCR is complicated, difficult to document, and would create 
compliance burden. On the other hand, most consumer advocacy group 
commenters and a joint letter from civil rights organizations opposed 
any adjustments to the APR-based thresholds to account for an expanded 
finance charge. Some consumer advocacy group commenters asserted that 
very few loans would be considered high-cost even under the new rules. 
These commenters asserted that creditors in these loans can and should 
reduce their closing costs or interest rate to escape that 
designation.\177\
---------------------------------------------------------------------------

    \177\ Comments regarding the broader definition of the finance 
charge or potential mitigation measures submitted to the other Title 
XIV Rulemakings are not specifically described here because the 
Bureau is not adopting the proposed amendment to the definition of 
the finance charge.
---------------------------------------------------------------------------

Final Rule
    For the reasons set forth below, the Bureau has determined not to 
finalize the proposed change to the definition of finance charge and 
instead to leave the current definition unchanged at this time. The 
Bureau will, instead, revisit this issue in conjunction with the 
assessment that it is required to do of each significant rule it issues 
no later than five years after the effective date of such rules under 
Dodd-Frank Act section 1022(d).
    As described in the TILA-RESPA Proposal, the Bureau believes that 
an expanded finance charge definition could result in disclosures that 
more meaningfully represent the cost of credit, ease compliance and 
examination burdens in the long run, and reduce the cost of credit for 
some consumers by discouraging creditors from shifting costs to fees 
that are excluded from the finance charge. However, before finalizing 
any changes to the finance charge definition, the Bureau believes it is 
appropriate to further study the potential impacts of the expanded 
finance charge under the regulatory regime revised by the Dodd-Frank 
Act, collect additional data on the impact of changes to the finance 
charge definition on APR, and evaluate the effect an expanded finance 
charge definition would have on consumer understanding of the finance 
charge and APR disclosures in light of the TILA-RESPA Final Rule.
    Although changes to the finance charge definition are not being 
finalized at this time, the Bureau is committed to continuing to 
collect data and analyze the consumer benefits of an expanded finance 
charge, as well as the effect of an expanded finance charge on laws 
with coverage thresholds that are dependent on the finance charge and 
APR, including State high-cost loan statutes. As noted, the Bureau 
expects to revisit this issue in conjunction with the mandatory five-
year review of the Bureau's Title XIV Rulemakings and the TILA-RESPA 
Final Rule under section 1022 of the Dodd-Frank Act. As described 
below, the Bureau believes that it may have access to additional data 
within the next five years which could be used to conduct such an 
analysis. To the extent the Bureau concludes that an expanded finance 
charge definition may be appropriate at that time, the Bureau would 
issue a new proposed rule, setting forth any new data relied upon, to 
provide the public an opportunity to comment on that data and on the 
Bureau's analysis of this issue.
    The Bureau believes it is appropriate to postpone any changes to 
the finance charge definition until industry has fully implemented the 
Title XIV Rulemakings and the TILA-RESPA Final Rule and those rules 
have been in effect for a meaningful period of time. This approach 
would allow the Bureau to take into account the effects of those rules 
on the mortgage market and access to credit under the revised 
regulatory regime and allow industry to make changes to systems and 
processes, as appropriate, without being required subsequently to 
factor into such changes the increased finance charge and APRs that 
would result from finalization of the proposed definition of finance 
charge. As discussed above, an expanded finance charge definition would 
impact other rules that depend on the finance charge or APR to define 
coverage, including the Bureau's recently-issued rules related to 
HOEPA, ATR, Escrows, and Appraisals. For this and other reasons, the 
Bureau understands that each of its Dodd-Frank Act mortgage 
rulemakings, including the TILA-RESPA Final Rule, has the potential to 
affect aspects of the mortgage market, including loan pricing and the 
types and amounts of settlement charges and other fees that are 
typically associated with mortgage transactions. For example, the Dodd-
Frank Act's three percent limit on points and fees for qualified 
mortgages may cause some creditors to restructure their current 
business or pricing models in order to remain below that threshold. The 
revised rules related to permissible changes in estimated settlement 
charges discussed below in the section-by-section analysis of Sec.  
1026.19(e) may have a similar effect.
    As noted above, numerous industry commenters and a large consumer 
advocacy group commenter cited the Bureau's other rulemakings and the 
need to evaluate the proposed changes in light of the new regulatory 
regime as a significant factor in their assessment that the Bureau 
should not finalize the expanded finance charge definition at this 
time. The Bureau has considered the potential effects of the Bureau's 
recently-issued rules on the market and the comments received and 
determined it is appropriate to further study the expanded finance 
charge once industry

[[Page 79779]]

has fully implemented the new rules and the market has adapted to those 
changes.
    In addition, the Bureau currently lacks data to model, across a 
wide spectrum of the market, the impact of an expanded finance charge 
on APR. As discussed above, numerous commenters urged the Bureau to 
conduct further study of the impact of the expanded finance charge 
before finalizing that aspect of the TILA-RESPA Proposal. Because the 
Bureau cannot model the effect of an expanded finance charge on APR, 
the Bureau also cannot fully evaluate at this time whether, and to what 
extent, to adopt mitigation measures that would address the effect of 
an expanded finance charge on other rules that use the APR or finance 
charge as a metric to define coverage. Characterizing the impact of the 
expanded finance charge on APR requires an understanding of how the 
cost of fees and services vary with loan size and other observable loan 
characteristics. The relationship between characteristics such as loan 
size and interest rate and the difference between the APR under the 
current definition and the proposed expanded definition cannot be 
described by a simple formula. Changes to the APR using the formula for 
determining the APR under appendix J to Regulation Z are not monotonic. 
For example, the appraisal fee for a low-dollar value rural property 
may be higher than the appraisal fee for a high-dollar value suburban 
home, resulting in a larger associated increase in the APR for the 
lower-dollar value property. This makes the effect of an expanded 
finance charge on APR difficult to model without itemized data that 
spans a wide spectrum of the market.
    As noted above, the Board's 2009 Closed-End Proposal relied on a 
2008 survey of closing costs conducted by Bankrate.com to assess the 
effect an expanded finance charge definition would have on APR. The 
TILA-RESPA Proposal did not provide a similar analysis, but noted that 
it was considering the 2010 version of the Bankrate.com survey as an 
appropriate dataset to model the impacts of the proposal, and requested 
additional data that would provide more representative information 
regarding closing and settlement costs. Since the TILA-RESPA Proposal 
was issued, the Bureau has determined that an analysis of the 2010 
Bankrate.com data is not appropriate because the Bankrate.com survey 
focuses on closing costs for a single type of fixed rate loans, and 
also not feasible because the Bureau does not have access to the 
survey's micro data of itemized charges. In addition, in response to 
the request for data in the TILA-RESPA Proposal, the Bureau did not 
receive data with which it could conduct an analysis of the impact of 
the expanded finance charge on APRs for a wide variety of loans.
    Since the proposal, however, the Bureau received voluntary data 
submissions of electronic RESPA settlement statement information from 
three large lenders, a possibility discussed in the TILA-RESPA 
Proposal. See 77 FR 51116, 51270 (Aug. 23, 2012). This voluntary data 
submission is the only data the Bureau currently has that itemizes fees 
and charges. Using this data, the Bureau was able to take a preliminary 
step in considering the economy-wide impact of the proposed changes on 
the APR and on the coverage of other rules. Analysis of the fixed rate 
first lien loans in the data did not show a strong correlation between 
the increase in the finance charge associated with the proposed 
expanded definition and the APR resulting from such increase, or a 
strong correlation between the increase in the finance charge and the 
loan amount. This is consistent with the fact that increases in the 
finance charge do not result in affine (i.e., correlated or linear) 
transformations of the APR. Also, since the data is from three lenders, 
it is not sufficient for the Bureau to model the effect of the expanded 
finance charge on APRs across the market. For example, to the extent 
that these three lenders operate in particular segments of the market 
or have firm-specific conventions for how they itemize charges and 
fees, the data provided is not representative of the national mortgage 
market. A more thorough analysis of the effect of an expanded finance 
charge definition on APR would require more representative data that 
includes itemized settlement charges, which is not currently available 
to the Bureau.
    The Bureau expects that new sources of data on itemized settlement 
costs may be available in the next five years. For example, the Bureau 
believes that electronic retention of data from the integrated 
disclosure forms may become common practice. If this is the case, more 
robust data may be available to the Bureau for analysis. In addition, 
if particular settlement charges are discernible from new data 
standards required to be reported under HMDA by Dodd-Frank Act section 
1094 (which amended section 304 of HMDA), the distribution of these 
charges for HMDA reporters may be leveraged to construct estimates of 
the impacts of including or excluding these costs from the APR.\178\ 
These sources of data may assist the Bureau in conducting an analysis 
of the effect of changes to the finance charge on APR and on coverage 
thresholds.
---------------------------------------------------------------------------

    \178\ Section 1094 of the Dodd-Frank Act amends HMDA to expand 
the scope of information relating to mortgage applications and loans 
that must be compiled, maintained, and reported under HMDA, 
including the ages of loan applicants and mortgagors, information 
relating to the points and fees payable at origination, the 
difference between the annual percentage rate associated with the 
loan and benchmark rates for all loans, the term of any prepayment 
penalty, the value of real property to be pledged as collateral, the 
term of the loan and of any introductory interest rate for the loan, 
the presence of contract terms allowing non-amortizing payments, the 
origination channel, and the credit scores of applicants and 
mortgagors. The Bureau is in the prerule stage of incorporating 
these amendments to HMDA into its Regulation C, 12 CFR part 203, 
which implements HMDA.
---------------------------------------------------------------------------

    As noted in the proposal, the Bureau believes that creditors could 
ultimately benefit from a streamlined finance charge definition that is 
simpler to calculate than the current definition, particularly given 
the increased significance of coverage thresholds under the Title XIV 
Rulemakings. However, the Bureau does not believe it is appropriate to 
finalize such changes before the Bureau has had the opportunity to 
study the effect of the expanded finance charge and APR across the 
mortgage market and using the coverage thresholds as revised by the 
Dodd-Frank Act and the Bureau's recently-issued Title XIV Rulemakings.
    Further, postponing consideration of any changes to the expanded 
finance charge definition would allow the Bureau to continue to study 
the effect of the expanded finance charge on consumer understanding of 
the APR disclosure. As described in the TILA-RESPA Proposal, the Bureau 
believes that an expanded finance charge definition could increase 
consumer understanding of the APR disclosures by more accurately 
reflecting the cost of credit to consumers. However, the Bureau also 
recognizes concerns by some commenters that, even under an expanded 
finance charge definition, the APR is limited in its usefulness as a 
measure of the cost of credit. For example, it is not always the case 
that a loan with a lower APR is the ``best'' loan for a consumer 
because consumers have different time horizons with respect to their 
financing decisions and because loans with different interest rate-
point combinations will have different APRs. A consumer who expects to 
sell or refinance a property within a short time horizon may benefit 
from making a different rate-point tradeoff than a consumer who expects 
to hold the loan long term. For this reason,

[[Page 79780]]

the Bureau believes that a rule adopting an expanded finance charge 
definition would likely need to be accompanied by a broader initiative 
to assist consumer understanding of the APR. Postponing changes to the 
finance charge definition will allow the Bureau to study consumer 
understanding of the disclosures further and, if appropriate, develop 
other measures to aid consumer understanding that could supplement a 
revised finance charge definition.
    In addition, because of consumer testing that shows that consumers 
do not rely primarily on the APR when shopping for a loan, and the 
statutory mandate to combine the disclosures required by TILA and 
RESPA, the TILA-RESPA Final Rule emphasizes on the first page of the 
Loan Estimate and Closing Disclosure information that consumers more 
readily understand (such as the interest rate and the cash to close 
amount). To reduce potential confusion between the APR and the interest 
rate and to focus on more readily understandable information, the APR 
is on the final page of the integrated disclosures. See the section-by-
section analysis of Sec. Sec.  1026.37(l)(2) and 1026.38(o)(4). The 
Bureau believes it is appropriate to evaluate consumer benefits of an 
expanded finance charge in light of these changes to the disclosure. 
However, the Bureau has not tested the APR disclosure on the integrated 
forms using an expanded finance charge definition, so the Bureau may 
determine it is appropriate to conduct additional testing of the 
integrated disclosures with an expanded finance charge before making a 
determination as to whether changes to the finance charge definition 
are appropriate.
    The Bureau also recognizes that the proposed change to the 
definition of finance charge would create upfront implementation costs 
for creditors required to update systems and train staff on the new 
calculations. As discussed above, numerous commenters suggested that 
these burdens are significant, particularly for small institutions, and 
would be especially burdensome in light of the costs and burdens of 
implementing the Bureau's Title XIV Rulemakings and the TILA-RESPA 
Final Rule. These commenters stated that industry is under enormous 
strain to absorb and implement the Bureau's Title XIV Rulemakings, 
which are required by the Dodd-Frank Act, and that the Bureau should 
delay discretionary changes to the rules until industry has implemented 
the required changes. Upfront implementation costs could also be 
increased if the Bureau were to adopt certain mitigation measures to 
address the effect of an expanded finance charge on coverage thresholds 
for other rules. As discussed in the TILA-RESPA Proposal, the Bureau 
believes that the costs to update systems could be mitigated for some 
creditors if undertaken in conjunction with implementation of the TILA-
RESPA Final Rule. However, some commenters have stated, and the Bureau 
has heard from other feedback from small creditors, that small 
creditors may exit the residential mortgage market if upfront 
implementation costs are too burdensome, which could increase the cost 
of credit for some consumers. For this reason, the Bureau believes it 
is appropriate to postpone finalizing any changes to the finance charge 
definition until the Bureau's other mortgage-related Dodd-Frank Act 
rulemakings are fully implemented and to evaluate the potential 
benefits and implementation burdens at that time.
    Finally, postponing consideration of changes to the finance charge 
definition will allow the Bureau to study an additional expansion of 
the finance charge definition for HELOCs, which could result in a 
single APR for mortgage credit. This could aid comparison of closed-end 
and open-end mortgage credit for consumers and address concerns 
expressed by some commenters that having one APR calculation for open-
end mortgage credit and a separate definition for closed-end mortgage 
credit could impair consumers' ability to compare closed-end home 
equity loans with HELOCs and increase compliance costs for creditors.
    For the aforementioned reasons, the Bureau is not finalizing the 
expanded definition of the finance charge at this time. The Bureau will 
study the issue in connection with its five-year review of the TILA-
RESPA Final Rule and its other Title XIV Rulemakings under Dodd-Frank 
Act section 1022. In the event the Bureau determines it may be 
appropriate to move forward with an expanded finance charge definition, 
the Bureau will issue a new proposal and publish for public comment any 
new data in support of that proposal before issuing a final rule.
Section 1026.17 General Disclosure Requirements
    In the TILA-RESPA Proposal, the Bureau proposed conforming 
amendments to Sec.  1026.17 to reflect the proposed rules regarding the 
format, content, and timing of disclosures for closed-end transactions 
secured by real property, other than reverse mortgages subject to Sec.  
1026.33, in proposed Sec. Sec.  1026.37 and 1026.38.
17(a) Form of Disclosures
    TILA section 128(b)(1) provides that the disclosures required by 
TILA sections 128(a) and 106(b), (c), and (d) must be conspicuously 
segregated from all other terms, data, or information provided in 
connection with the transaction, including any computations or 
itemizations. 15 U.S.C. 1638(a), (b)(1); 15 U.S.C. 1605(b), (c), (d). 
In addition, TILA section 122(a) requires that the ``annual percentage 
rate'' and ``finance charge'' disclosures be more conspicuous than 
other terms, data, or information provided in connection with the 
transaction, except information relating to the identity of the 
creditor. 15 U.S.C. 1632(a). Current Sec.  1026.17(a) implements these 
statutory provisions. Current Sec.  1026.17(a)(1) implements TILA 
section 128(b)(1) by providing that closed-end credit disclosures must 
be grouped together and segregated from all other disclosures and must 
not contain any information not directly related to the disclosures. 
Current Sec.  1026.17(a)(2) implements TILA section 122(a) for closed-
end credit transactions by requiring that the terms ``annual percentage 
rate'' and ``finance charge,'' together with a corresponding amount or 
percentage rate, be disclosed more conspicuously than any disclosure 
other than the creditor's identity.
    The Bureau proposed to revise the introductory language to Sec.  
1026.17(a) to reflect the fact that special rules apply to the 
disclosures required by Sec.  1026.19(e), (f), and (g), by providing 
that Sec.  1026.17(a) is inapplicable to those disclosures. As 
discussed below, the Bureau proposed to implement the grouping and 
segregation requirements of TILA section 128(b)(1) in Sec. Sec.  
1026.37(o) and 1026.38(t). Further, for the reasons set forth in the 
section-by-section analyses of Sec. Sec.  1026.37(l)(3) and 
1026.38(o)(2) and (4), the Bureau proposed to use its authority under 
TILA section 105(a), Dodd-Frank Act section 1032(a), and, for 
residential mortgage loans, Dodd-Frank Act section 1405(b), to modify 
the requirements of TILA section 122(a) for transactions subject to 
Sec.  1026.19(e), (f), and (g). Proposed comment 17-1 would have stated 
that, for the disclosures required by proposed Sec.  1026.19(e), (f), 
and (g), rules regarding the disclosures' form are found in Sec. Sec.  
1026.19(g), 1026.37(o), and 1026.38(t). In addition, proposed comment 
17(a)(1)-7 would have reflected the special disclosure rules for 
transactions subject to Sec.  1026.18(g) or (s).
    The Bureau did not receive comments regarding the proposed changes 
to the introductory language to Sec.  1026.17(a) or

[[Page 79781]]

proposed comments 17-1 and 17(a)(1)-7. For the reasons discussed and 
using the authority described in the proposed rule, the Bureau is 
finalizing Sec.  1026.17(a) and comments 17-1 and 17(a)(1)-7 
substantially as proposed.
17(b) Time of Disclosures
    TILA section 128(b)(1) provides that the disclosures required by 
TILA section 128(a) shall be made before credit is extended. 15 U.S.C. 
1638(b)(1). Special timing rules for transactions subject to RESPA are 
found in TILA section 128(b)(2). 15 U.S.C. 1638(b)(2). Current Sec.  
1026.17(b) implements TILA section 128(b)(1) by requiring creditors to 
make closed-end credit disclosures before consummation. The special 
timing rules for transactions subject to RESPA are implemented in 
current Sec.  1026.19(a). As discussed below, the Bureau proposed 
special timing rules for the disclosures required by Sec.  1026.19(e), 
(f), and (g) in those provisions. Proposed Sec.  1026.17(b) would have 
reflected these special rules by providing that Sec.  1026.17(b) is 
inapplicable to the disclosures required by Sec.  1026.19(e), (f), and 
(g). Proposed comment 17-1 would have stated that, for to the 
disclosures required by Sec.  1026.19(e), (f), and (g), rules regarding 
timing are found in those sections.
    The Bureau did not receive comments regarding the proposed changes 
to Sec.  1026.17(b) or proposed comment 17-1. For the reasons discussed 
in the proposed rule, the Bureau is finalizing Sec.  1026.17(b) and 
comment 17-1 substantially as proposed. However, as discussed below in 
the section-by-section analysis of Sec.  1026.20(e), the Bureau is 
finalizing separate rules regarding the timing of the Post-Consummation 
Escrow Cancellation Disclosure required by that section. For that 
reason, the Bureau is also revising Sec.  1026.17(b) and comment 17-1 
to reflect the fact that special rules apply to the disclosure required 
by Sec.  1026.20(e). As adopted, Sec.  1026.17(b) provides that it does 
not apply to the disclosures required by Sec.  1026.19(e), (f), and (g) 
and Sec.  1026.20(e).
17(c) Basis of Disclosures and Use of Estimates
17(c)(1)
    Current Sec.  1026.17(c)(1) requires that the disclosures that 
creditors provide pursuant to subpart C of Regulation Z reflect the 
terms of the legal obligation between the parties. The commentary to 
current Sec.  1026.17(c)(1) provides guidance to creditors regarding 
the disclosure of specific transaction types and loan features.
    As discussed more fully in the section-by-section analysis of 
Sec. Sec.  1026.37 and 1026.38, the Bureau proposed to integrate the 
disclosure requirements of TILA and sections 4 and 5 of RESPA in the 
Loan Estimate that creditors must provide to consumers within three 
business days after receiving the consumer's application and the 
Closing Disclosure that creditors must provide to consumers at least 
three business days prior to consummation. Some disclosures required by 
RESPA pertain to services performed by third parties, other than the 
creditor. Accordingly, the Bureau proposed conforming amendments to the 
commentary to Sec.  1026.17(c) to clarify that the ``parties'' referred 
to in the commentary to Sec.  1026.17(c) are the consumer and the 
creditor and that the ``agreement'' referred to in the commentary to 
Sec.  1026.17(c) is the legal obligation between the consumer and the 
creditor. The proposed conforming amendments to the commentary also 
would have clarified that the ``disclosures'' referred to in the 
commentary to current Sec.  1026.17(c) are the finance charge and the 
disclosures affected by the finance charge. Finally, the proposed 
conforming amendments to the commentary would have extended existing 
guidance on special disclosure rules for transactions subject to Sec.  
1026.18(s) to reflect the addition of new special rules under Sec.  
1026.19(e) and (f).
    The Bureau also proposed amendments to the commentary to Sec.  
1026.17(c)(1) to address areas of industry uncertainty regarding TILA 
disclosures. First, the Bureau proposed to revise comment 17(c)(1)-1 to 
provide the general principle that disclosures based on the assumption 
that the consumer will abide by the terms of the legal obligation 
throughout its term comply with Sec.  1026.17(c)(1). In addition, the 
Bureau proposed to revise comments 17(c)(1)-3 and -4 regarding third-
party and consumer buydowns, respectively. Under existing Regulation Z, 
whether the effect of third-party or consumer buydowns are disclosed 
depends on State law. To address uncertainty, the Bureau proposed to 
revise the examples in comments 17(c)(1)-3 and -4 to clarify that, in 
the disclosure of the finance charge and other disclosures affected by 
the finance charge, third-party buydowns must be reflected as an 
amendment to the contract's interest rate provision if the buydown is 
reflected in the credit contract between the consumer and the creditor 
and that consumer buydowns must always be reflected as an amendment to 
the contract's interest rate provision.
    The Bureau did not receive comments on comments 17(c)(1)-1, -3, or 
-4. Therefore, for the reasons discussed in the proposed rule, the 
Bureau is finalizing those comments as proposed. However, the Bureau is 
finalizing an additional change to comment 17(c)(1)-1 to make clear 
that the Post-Consummation Escrow Cancellation Disclosure required by 
Sec.  1026.20(e) must reflect the credit terms to which the parties are 
legally bound when the disclosure is provided, rather than at the 
outset of the transaction, because that disclosure is provided to 
consumers after consummation. This clarification is consistent with the 
comment's existing treatment of the post-consummation disclosure 
required by Sec.  1026.20(c) (variable-rate adjustments) and the 
comment's treatment of the post-consummation disclosure required by 
Sec.  1026.20(d) (initial interest rate adjustment notice) under the 
Bureau's 2013 Mortgage Servicing Final Rule amending Regulation Z which 
will take effect on January 10, 2014.\179\ For a discussion of the 
Post-Consummation Escrow Cancellation Disclosure, see the section-by-
section analysis of Sec.  1026.20(e), below.
---------------------------------------------------------------------------

    \179\ See 78 FR 10902, 11017 (Feb. 14, 2013).
---------------------------------------------------------------------------

    The Bureau also proposed new comment 17(c)(1)-19, regarding 
disclosure of rebates and loan premiums offered by a creditor. In its 
2009 Closed-End Proposal, the Board proposed to revise comment 18(b)-2, 
which provides guidance regarding the treatment of rebates and loan 
premiums for the amount financed calculation required by Sec.  
1026.18(b). 74 FR 43385. Comment 18(b)-2 primarily addresses credit 
sales, such as automobile financing, and provides that creditors may 
choose whether to reflect creditor-paid premiums and seller- or 
manufacturer-paid rebates in the disclosures required by Sec.  1026.18. 
The Board stated its belief that such premiums and rebates are 
analogous to buydowns because they may or may not be funded by the 
creditor and reduce costs that otherwise would be borne by the 
consumer. 2009 Closed-End Proposal, 74 FR 43256. Accordingly, their 
impact on the Sec.  1026.18 disclosures properly depends on whether 
they are part of the legal obligation, in accordance with Sec.  
1026.17(c)(1) and its commentary. The Board therefore proposed to 
revise comment 18(b)-2 to clarify that the disclosures, including the 
amount financed, must reflect loan premiums and rebates regardless of 
their source,

[[Page 79782]]

but only if they are part of the legal obligation between the creditor 
and the consumer. The Board also proposed a parallel comment under the 
section requiring disclosure of the amount financed for transactions 
subject to the proposed, separate disclosure scheme for transactions 
secured by real property or a dwelling. 74 FR 43417 (proposed comment 
38(e)(5)(iii)-2).
    In the TILA-RESPA Proposal, the Bureau stated its agreement with 
the Board's reasoning in proposing the revisions to comment 18(b)-2 
that the disclosures must reflect loan premiums and rebates, even if 
paid by a third party such as a seller or manufacturer, but only if 
they are part of the legal obligation between the creditor and the 
consumer. The Bureau noted, however, that the comment's guidance 
extends beyond the calculation of the amount financed. For example, the 
guidance on whether and how to reflect premiums and rebates applies 
equally to such disclosures as the amount financed, the annual 
percentage rate, the projected payments table, interest rate and 
payment summary table, or payment schedule, as applicable, and other 
disclosures affected by those disclosures. The Bureau therefore 
proposed to place the guidance in the commentary to Sec.  
1026.17(c)(1), as that section is the basis for the underlying 
principle that the impact of premiums and rebates depends on the terms 
of the legal obligation.
    Several industry trade association commenters noted that there is 
no clear definition of what is considered a ``premium or a rebate'' 
under proposed comment 17(c)(1)-19. Those commenters noted that it is 
not clear whether any amount that a creditor would pay to a consumer is 
considered a premium or rebate. For example, if a credit that may be 
used to pay closing costs is subject to the comment, it is not clear 
whether the comment requires considering the credit to be applied first 
to finance charges and then to closing costs that are not finance 
charges. One such commenter noted that, without uniformity to these 
terms, borrowers may have difficulty comparing competing offers. Other 
such commenters recommended clarifying that if a creditor provides a 
specific credit against a charge that is included in the finance 
charge, the credit should reduce the total finance charge; whereas if a 
creditor provides a general credit that the consumer can use to pay 
closing costs, whether or not those closing costs are included in the 
finance charge, the credit should lower the finance charge.
    The Bureau has considered the comments received regarding new 
comment 17(c)(1)-19. However, as noted above, comment 17(c)(1)-19 is 
intended only to clarify existing comment 18(b)-2, that the disclosures 
must reflect loan premiums and rebates, even if paid by a third party 
such as a seller or manufacturer, but only if they are part of the 
legal obligation between the creditor and the consumer. Accordingly, 
the Bureau is finalizing comment 17(c)(1)-19 as proposed.
    Among the proposed conforming amendments, which are noted above, 
was an amendment to comment 17(c)(1)-10 to reflect the special rules 
under Sec.  1026.19(e) and (f). Comment 17(c)(1)-10 provides that, in 
determining the index value used to calculate the disclosures when 
creditors set an initial interest rate that is not calculated using the 
index or formula for later adjustments, the disclosures should reflect 
a composite annual percentage rate based on the initial rate for as 
long as it is charged, and for the remainder of the term, the rate that 
would have been applied using the index or formula at the time of 
consummation. The rate at consummation need not be used if a contract 
provides for a delay in the implementation of changes in an index 
value. The comment uses a 45-day look-back period as an example. 
Although not specifically addressed in the proposed rule, several 
industry trade association commenters noted that, because Dodd-Frank 
Act section 128A requires an early notice of the first adjustment on 
hybrid adjustable rate mortgages, it is likely that, for some 
adjustable rate mortgages, the look-back period for the first 
adjustment may be longer than the look-back period for subsequent 
adjustments. For that reason, the commenters asserted that it would be 
helpful for commentary to permit the use of the longer look-back 
period.
    After consideration of the comments received, the Bureau is 
adopting comment 1026.17(c)(1)-10 generally as proposed. The Bureau 
notes that comment 1026.17(c)(1)-10 is broad and does not specifically 
prohibit or permit creditors to use a particular look-back period where 
a transaction is structured to have multiple adjustments with varying 
look-back periods, so it is not clear that additional commentary 
regarding the use of specific look-back periods is necessary. Further, 
the Bureau did not propose changes or solicit comment on comment 
1026.17(c)(1)-10 in the TILA-RESPA Proposal with respect to how it 
might relate the disclosure requirements of Dodd-Frank Act section 
128A, so the Bureau does not believe that it would be appropriate to 
finalize such a change at this time. However, the Bureau is making 
certain technical changes to proposed comment 1026.17(c)(1)-10 to 
clarify that the composite rate would apply to the ``in five years'' 
disclosure pursuant to Sec.  1026.37(l)(1) and the total interest 
percentage disclosure pursuant to Sec. Sec.  1026.37(1)(3) and 
1026.38(o)(5), in addition to the disclosures required by Sec.  
1026.18(g) and (s) and Sec. Sec.  1026.37(c) and 1026.38(c), which were 
included in the proposed conforming amendments.
17(c)(2)
    Current Sec.  1026.17(c)(2) and its commentary contain general 
rules regarding the use of estimates. The Bureau proposed conforming 
amendments to the commentary to Sec.  1026.17(c)(2) to be consistent 
with the special disclosure rules for closed-end mortgage transactions 
subject to proposed Sec.  1026.19(e) and (f).
    Comment 17(c)(2)(i)-1 would have provided guidance to creditors on 
the basis for estimates. The proposed rule would have amended this 
comment to specify that it applies except as otherwise provided in 
Sec. Sec.  1026.19, 1026.37, and 1026.38, and that creditors must 
disclose the actual amounts of the information required to be disclosed 
pursuant to Sec.  1026.19(e) and (f), subject only to the estimation 
and redisclosure rules in those sections. The proposed rule also would 
have revised comment 17(c)(2)(i)-2, which gives guidance to creditors 
on labeling estimated disclosures, to provide that, for the disclosures 
required by Sec.  1026.19(e), use of the Loan Estimate form H-24 of 
appendix H, pursuant to Sec.  1026.37(o), satisfies the requirement 
that the disclosure state clearly that it is an estimate. In addition, 
consistent with the proposed revisions to comment 17(c)(1)-1, the 
proposed rule would have revised comment 17(c)(2)(i)-3, which provides 
guidance to creditors regarding disclosures in simple interest 
transactions, to reflect that the comment applies only to the extent 
that it does not conflict with proposed Sec.  1026.19. Proposed comment 
17(c)(2)(i)-3 also would have clarified that, in all cases, creditors 
must base disclosures on the assumption that payments will be made on 
time and in the amounts required by the terms of the legal obligation, 
disregarding any possible differences resulting from consumers' payment 
patterns. Finally, proposed comment 17(c)(2)(ii)-1, regarding 
disclosure of per diem interest, would have provided that the creditor 
shall disclose the actual amount of per diem interest that will be 
collected at consummation, subject only

[[Page 79783]]

to the disclosure rules in Sec.  1026.19(e) and (f).
    The Bureau did not receive comments regarding the proposed changes 
to Sec.  1026.17(c)(2). For the reasons discussed in the proposed rule, 
the Bureau is finalizing Sec.  1026.17(c)(2) as proposed. However, the 
Bureau is revising comment 17(c)(2)(i)-2 to clarify that the use of the 
Closing Disclosure form H-25 of appendix H satisfies the requirement 
that the disclosure state clearly that it is an estimate. Under 
proposed Sec.  1026.19(f), creditors would have been required to 
disclose the actual terms of the transaction on the Closing Disclosure. 
For the reasons discussed below in the section-by-section analysis of 
Sec.  1026.19(f), however, the final rule requires creditors to 
disclose the actual terms of the transaction on the Closing Disclosure, 
but also provides that if any information necessary for disclosure of 
the actual terms is unknown to the creditor, the creditor shall make 
such disclosure based on the best information reasonably available at 
the time the disclosure is provided to the consumer. To account for the 
fact that the Closing Disclosure may reflect some estimated terms 
pursuant to Sec.  1026.19(f), comment 17(c)(2)(i)-2, as adopted, 
provides that, for the disclosures required by Sec.  1026.19(e) or (f), 
use of the Loan Estimate form H-24 of appendix H to Regulation Z 
pursuant to Sec.  1026.37(o) or the Closing Disclosure form H-25 of 
appendix H to Regulation Z pursuant to Sec.  1026.38(t), as applicable, 
satisfies the requirement that the disclosure state clearly that the 
disclosure is an estimate.
17(c)(4)
    The proposed rule would have revised comment 17(c)(4)-1 to clarify 
that creditors may disregard payment period irregularities when 
disclosing the payment summary tables pursuant to Sec. Sec.  
1026.18(s), 1026.37(c), and 1026.38(c), in addition to the payment 
schedule under Sec.  1026.18(g) discussed in the existing comment.
    The Bureau did not receive comments regarding the proposed changes 
to Sec.  1026.17(c)(4). For the reasons discussed in the proposed rule, 
the Bureau is finalizing Sec.  1026.17(c)(4) as proposed.
17(c)(5)
    Current Sec.  1026.17(c)(5) and its commentary contain general 
rules regarding the disclosure of demand obligations. The proposed rule 
would have revised comment 17(c)(5)-2, which addresses obligations 
whose maturity date is determined by a future event, to reflect the 
fact that special rules would have applied to the disclosures required 
by Sec.  1026.19(e) and (f). In addition, the proposal would have 
revised comment 17(c)(5)-3, regarding transactions that convert to 
demand status only after a fixed period, to delete obsolete references 
to specific loan programs and to update cross-references. Finally, the 
proposal would have revised comment 17(c)(5)-4, regarding balloon 
payment mortgages, to reflect the fact that special rules would have 
applied to the disclosure of balloon payments in the projected payments 
tables required by Sec. Sec.  1026.37(c) and 1026.38(c).
    The Bureau did not receive comments regarding the proposed changes 
to Sec.  1026.17(c)(5). For the reasons discussed in the proposed rule, 
the Bureau is finalizing Sec.  1026.17(c)(5) as proposed.
17(d) Multiple Creditors; Multiple Consumers
    Current Sec.  1026.17(d) addresses transactions that involve 
multiple creditors or consumers. The proposed rule would have revised 
comment 17(d)-2, regarding multiple consumers, to clarify that the 
early disclosures required by Sec.  1026.19(a), (e), or (g), as 
applicable, need be provided to only one consumer who will have primary 
liability on the obligation. Material disclosures, as defined in Sec.  
1026.23(a)(3)(ii), under Sec.  1026.23(a) and the notice of the right 
to rescind required by Sec.  1026.23(b), however, would have been 
required to be given before consummation to each consumer who has the 
right to rescind, including any such consumer who is not an obligor. As 
stated in the proposal and in the Board's 2010 Mortgage Proposal, the 
purpose of the TILA section 128 requirement that creditors provide 
early and final disclosures is to ensure that consumers have 
information specific to their loan to use while shopping and evaluating 
their loan. See 75 FR 58585. On the other hand, the purpose of the TILA 
section 121(a) requirement that each consumer with a right to rescind 
receive disclosures regarding that right is to ensure that each such 
consumer has the necessary information to decide whether to exercise 
that right. Id. For this reason, the proposed rule would have required 
creditors to provide all consumers who have the right to rescind with 
the material disclosures under Sec. Sec.  1026.18 and 1026.38 and the 
notice of the right to rescind required by Sec.  1026.23(b), even if 
such consumer is not an obligor.
    Several industry trade association commenters noted that it is not 
clear under proposed comment 17(d)-2 whether the Closing Disclosure 
required by proposed Sec.  1026.19(f) would be required to be provided 
to one consumer, or whether the fact that Sec.  1026.19(f) is not 
specifically mentioned in the comment means that the Closing Disclosure 
must be provided to all consumers. The commenters noted that giving the 
Closing Disclosure to all consumers would be an operational burden, and 
requested clarification regarding the requirements of 1026.17(d) with 
regard to the Closing Disclosure.
    The proposed changes to comment 17(d)-2 were intended only to 
clarify how the existing rule regarding multiple consumers applies to 
the integrated disclosures and were not intended to alter existing 
guidance in comment 17(d)-2. However, after consideration of the 
comments received, the Bureau is finalizing revised language in comment 
17(d)-2 to provide further clarification regarding the provision of the 
Closing Disclosure. Specifically, comment 17(d)-2 provides that when 
two consumers are joint obligors with primary liability on an 
obligation, the early disclosures required by Sec.  1026.19(a), (e), or 
(g), as applicable, may be provided to any one of them. In rescindable 
transactions, the disclosures required by Sec.  1026.19(f) must be 
given separately to each consumer who has the right to rescind under 
Sec.  1026.23. In transactions that are not rescindable, the 
disclosures required by Sec.  1026.19(f) may be provided to any 
consumer with primary liability on the obligation. With respect to 
commenters' concerns that providing the Closing Disclosure to all 
consumers would be an operational burden, the Bureau notes that 
separate disclosures must be provided to each consumer only in 
rescindable transactions and that the commentary is consistent with 
existing guidance in comment 17(d)-2. In addition, the fact that 
material disclosures are to be provided to all consumers with a right 
to rescind would mean that creditors would otherwise be required to 
provide these disclosures separately, using a separate document, if 
they did not provide them using the Closing Disclosure. As such, 
providing a duplicate Closing Disclosure to all consumers with a right 
to rescind may in fact reduce operational burden, because creditors 
would not need to create a separate document for such disclosures. The 
Bureau also acknowledges that some creditors may desire that each 
obligor to a transaction subject to Sec.  1026.19(f) receive a Closing 
Disclosure, to obtain a signature of customary recitals or 
certifications that

[[Page 79784]]

are appended to the disclosure pursuant to Sec.  1026.38(t)(5).
17(e) Effect of Subsequent Events
    Current Sec.  1026.17(e) provides rules regarding when a subsequent 
event makes a disclosure inaccurate and requires a new disclosure. The 
proposed rule would have revised comment 17(e)-1 to clarify that 
special rules apply to transactions subject to proposed Sec.  
1026.19(e) and (f). The Bureau did not receive comments regarding the 
proposed changes to Sec.  1026.17(e). For the reasons discussed in the 
proposed rule, the Bureau is finalizing Sec.  1026.17(e) as proposed, 
with a minor modification for clarity to refer to the post-consummation 
disclosure requirements under Sec.  1026.19(f).
17(f) Early Disclosures
    Current Sec.  1026.17(f) contains rules regarding when a creditor 
must redisclose after providing disclosures prior to consummation. As 
discussed in the section-by-section analyses of Sec.  1026.19(a), (e), 
and (f), under the proposal, special timing requirements would have 
applied for transactions subject to those sections. Accordingly, Sec.  
1026.17(f) would have been revised to reflect the fact that the general 
early disclosure rules in Sec.  1026.17(f) would be subject to the 
special rules in Sec.  1026.19(a), (e), and (f). In addition, comments 
17(f)-1 through -4 would have been revised to conform to the special 
timing requirements under proposed Sec.  1026.19(a) or (e) and (f).
    The Bureau did not receive comments regarding the proposed changes 
to Sec.  1026.17(f). For the reasons discussed in the proposed rule, 
the Bureau is finalizing Sec.  1026.17(f) as proposed.
17(g) Mail or Telephone Orders--Delay in Disclosures
    Current Sec.  1026.17(g) and its commentary permit creditors to 
delay disclosures for transactions involving mail or telephone orders 
until the first payment is due if specific information, including the 
principal loan amount, total sale price, finance charge, annual 
percentage rate, and terms of repayment is provided to the consumer 
prior to the creditor's receipt of a purchase order or request for 
extension of credit. As discussed in the section-by-section analyses of 
Sec.  1026.19(a), (e), and (f), the Bureau proposed special timing 
requirements for transactions subject to those provisions. Accordingly, 
the Bureau proposed to revise Sec.  1026.17(g) and comment 17(g)-1 to 
clarify that Sec.  1026.17(g) does not apply to transactions subject to 
Sec.  1026.19(a) or (e) and (f).
    The Bureau did not receive comments regarding the proposed changes 
to Sec.  1026.17(g). For the reasons discussed in the proposed rule, 
the Bureau is finalizing Sec.  1026.17(g) as proposed, with technical 
changes to Sec. Sec.  1026.17(g) and (h) to clarify that those sections 
do not apply to mortgage disclosures made in compliance with Sec.  
1026.19(e), (f), and (g), and to comment 17(g)-1 to clarify that Sec.  
1026.17(g) does not apply to transactions subject to Sec.  1026.19(a) 
or (e) and (f).
17(h) Series of Sales--Delay in Disclosures
    Current Sec.  1026.17(h) and its commentary permit creditors to 
delay disclosures until the due date of the first payment in 
transactions in which a credit sale is one of a series made under an 
agreement providing that subsequent sales may be added to the 
outstanding balance. As discussed in the section-by-section analyses of 
Sec.  1026.19(a), (e), and (f), the Bureau proposed special timing 
requirements for transactions subject to those provisions. Accordingly, 
the Bureau proposed to revise Sec.  1026.17(h) and comment 17(h)-1 to 
clarify that Sec.  1026.17(h) does not apply to transactions subject to 
Sec.  1026.19(a) or (e), (f), and (g).
    The Bureau did not receive comments regarding the proposed changes 
to Sec.  1026.17(h). For the reasons discussed in the proposed rule, 
the Bureau is finalizing Sec.  1026.17(h) as proposed, with a technical 
change to comment 17(h)-1 to clarify that Sec.  1026.17(h) does not 
apply to transactions subject to Sec.  1026.19(a) or (e) and (f).
Section 1026.18 Content of Disclosures
    Section 1026.18 sets forth the disclosure content for closed-end 
consumer credit transactions. As discussed in more detail below, the 
Bureau proposed to establish separate disclosure requirements for 
closed-end transactions secured by real property, other than reverse 
mortgage transactions, through proposed Sec.  1026.19(e) and (f). For 
that reason, the Bureau proposed to amend Sec.  1026.18's introductory 
language to provide that its disclosure content requirements would 
apply only to closed-end transactions other than mortgage transactions 
subject to proposed Sec.  1026.19(e) and (f).
    The Bureau did not receive comments on this proposed amendment to 
the introductory language to Sec.  1026.18, although the Bureau did 
receive comments regarding the proposed scope of the integrated 
disclosures required by Sec. Sec.  1026.37 and 1026.38, which are 
discussed in the section-by-section analysis of Sec.  1026.19, below. 
For the reasons discussed in the proposed rule, the Bureau is 
finalizing the revisions to the introductory language to Sec.  1026.18 
as proposed.
    The Bureau also proposed to add a new comment 18-3 which would have 
clarified that, because of the proposed exclusion for transactions 
subject to Sec.  1026.19(e) and (f), the disclosures required by Sec.  
1026.18 would have applied only to closed-end transactions that are 
unsecured or secured by personal property (including dwellings that are 
not also secured by real property) and to reverse mortgages. The 
comment also would have clarified that, for unsecured transactions and 
transactions secured by personal property that is not a dwelling, 
creditors must disclose a payment schedule under Sec.  1026.18(g), and 
for other transactions that are subject to Sec.  1026.18, creditors 
must disclose an interest rate and payment summary table under Sec.  
1016.18(s), as adopted by the Board's MDIA Interim Rule. 75 FR 58470, 
58482-84. The comment would have included a cross-reference to comments 
18(g)-6 and 18(s)-4 for additional guidance on the applicability to 
different transaction types of Sec.  1026.18(g) or (s) and proposed 
Sec.  1026.19(e) and (f). Finally, the comment would have clarified 
that, because Sec.  1026.18 would not have applied to most transactions 
secured by real property, references in the section and its commentary 
to ``mortgages'' refer only to transactions secured by personal 
property that is a dwelling and is not also secured by real property 
and to reverse mortgages, as applicable.
    The Bureau did not receive comments on this aspect of the proposed 
rule. For the reasons discussed in the proposed rule, the Bureau is 
finalizing comment 18-3 as proposed.
18(b) Amount Financed
    Section 1026.18(b) addresses the calculation and disclosure of the 
amount financed for closed-end transactions. Comment 18(b)-2 currently 
provides that creditors may choose whether to reflect creditor-paid 
premiums and seller- or manufacturer-paid rebates in the disclosures 
required by Sec.  1026.18. For the reasons discussed under the section-
by-section analysis of Sec.  1026.17(c)(1), above, the Bureau proposed 
to remove comment 18(b)-2 and place revised guidance regarding rebates 
and loan premiums in proposed comment 17(c)(1)-19.
    Several industry commenters requested clarification regarding the 
definition of ``premium'' or ``rebate'' in proposed comment 17(c)(1)-
19. For a discussion of those comments, see the

[[Page 79785]]

section-by-section analysis of Sec.  1026.17(c)(1), above. For the 
reasons discussed in the proposed rule and in the section-by-section 
analysis of Sec.  1026.17(c)(1), the Bureau is removing comment 18(b)-2 
as proposed.
18(b)(2)
    The Bureau proposed certain conforming changes to comment 18(b)(2)-
1, which addresses amounts included in the amount financed calculation 
that are not otherwise included in the finance charge. As discussed 
above in the section-by-section analysis of Sec.  1026.4, the TILA-
RESPA Proposal included a proposal to adopt a simpler and more 
inclusive definition of the finance charge. Under that aspect of the 
proposal, references to real estate settlement charges and premiums for 
voluntary credit life and disability insurance in comment 18(b)(2)-1 
would have been inappropriate. Accordingly, proposed comment 18(b)(2)-1 
would have removed those references and substituted appropriate 
examples.
    As discussed above in the section-by-section analysis of Sec.  
1026.4, the Bureau is not finalizing the proposed revisions to the 
definition of the finance charge at this time. Accordingly, the Bureau 
is not finalizing the proposed changes to comment 18(b)(2)-1.
18(c) Itemization of Amount Financed
    Section 1026.18(c) requires an itemization of the amount financed 
and provides guidance on the amounts that must be included in the 
itemization. The Bureau proposed certain conforming amendments to two 
comments under Sec.  1026.18(c). Under the proposal, Sec.  1026.18 
disclosures, including the itemization of amount financed under Sec.  
1026.18(c), would have been required only for closed-end transactions 
that are not secured by real property and reverse mortgages; 
transactions secured by real property other than reverse mortgages 
would have been subject to the disclosure content in proposed 
Sec. Sec.  1026.37 and 1026.38. The Bureau therefore proposed technical 
revisions to comments 18(c)-4 and 18(c)(1)(iv)-2 to limit those 
comments' discussions of the RESPA disclosures and their interaction 
with Sec.  1026.18(c) to reverse mortgages.
    The Bureau did not receive comments on this aspect of the proposed 
rule. For the reasons discussed in the proposed rule, the Bureau is 
finalizing the technical revisions to comments 18(c)-4 and 
18(c)(1)(iv)-2 as proposed.
18(f) Variable Rate
18(f)(1)
18(f)(1)(iv)
    Section 1026.18(f)(1)(iv) requires that, for variable-rate 
transactions not secured by a consumer's principal dwelling and 
variable-rate transactions secured by a consumer's principal dwelling 
where the loan term is one year or less, creditors disclose an example 
of the payment terms that would result from an interest rate increase. 
The Bureau proposed to revise comment 18(f)(1)(iv)-2 by removing 
paragraph 2.iii, which provides that such an example is not required in 
a multiple-advance construction loan disclosed pursuant to appendix D, 
part I. Appendix D, part I provides guidance for disclosing the 
construction phase of a construction-to-permanent loan as a separate 
transaction pursuant to Sec.  1026.17(c)(6)(ii) (or for disclosing a 
construction-only loan). The Bureau's proposal to remove comment 
18(f)(1)(iv)-2.iii was intended solely as a conforming amendment, to 
reflect the Bureau's belief that multiple-advance construction loans 
would no longer be subject to the Sec.  1026.18 disclosure requirements 
under the proposal. The proposal stated the Bureau's belief that 
multiple-advance construction loans are limited to transactions with 
real property as collateral, and are not used for dwellings that are 
personal property or in reverse mortgages. The Bureau sought comment, 
however, on whether any reason remained to preserve comment 
18(f)(1)(iv)-2.iii.
    One State manufactured housing trade association commenter noted 
that, in the manufactured housing industry, a home may be sold as 
personal property and may become real property at some later point in 
time in the home delivery and installation process. That comment 
suggested that there may be construction elements to some manufactured 
home loans, although the commenter did not provide examples of such 
transactions. That commenter requested an exclusion from the disclosure 
requirements of proposed Sec. Sec.  1027.37 and 1026.38 for ``land/home 
stage-funded manufactured home loans,'' even those loans that when 
fully consummated will be secured in whole or in part by real property. 
In addition, two national industry trade association commenters noted 
that some loans are secured by both real property and personal 
property, such as investments or deposits held in a consumer's account, 
and that it is not clear whether those loans would be subject to the 
integrated disclosures and, if they are, how the creditor would 
disclose the security interest in personal property.
    The Bureau has considered the comments received on the proposal to 
remove comment 18(f)(1)(iv)-2.iii. With respect to the State 
manufactured housing trade association comment, because the commenter 
suggests that some manufactured home loans may have construction-only 
phases that may be secured by personal property and not real property, 
the Bureau has determined it is appropriate to retain comment 
18(f)(1)(iv)-2.iii for flexibility. To the extent the loans described 
in the comment letter are secured by real property, however, such loans 
would be covered by Sec.  1026.19(e) and (f), and therefore Sec.  
1026.18(f) would be inapplicable. For a discussion of the scope of 
Sec.  1026.19(e) and (f), see the section-by-section analysis of Sec.  
1026.19, below. Similarly, with respect to the two industry trade 
association comments, the Bureau acknowledges that multiple advance 
construction loans may be secured by both real and personal property. 
In such a case, however, because the loans are secured by real 
property, at least in part, such transactions would be subject to the 
disclosure requirements of Sec.  1026.19(e) and (f), and therefore 
Sec.  1026.18(f) would be inapplicable. Accordingly, the Bureau is not 
finalizing the proposed changes to comment 18(f)(1)(iv)-2.
18(g) Payment Schedule
    Section 1026.18(g) requires the disclosure of the number, amounts, 
and timing of payments scheduled to repay the obligation, for closed-
end transactions other than transactions subject to Sec.  1026.18(s). 
Section 1026.18(s) requires an interest rate and payment summary table, 
in place of the Sec.  1026.18(g) payment schedule, for closed-end 
transactions secured by real property or a dwelling, other than 
transactions that are secured by a consumer's interest in a timeshare 
plan. As noted above, however, the Bureau proposed to remove from the 
coverage of Sec.  1026.18 transactions secured by real property, other 
than reverse mortgages, and subject them to the integrated disclosure 
requirement under Sec. Sec.  1026.37 and 1026.38. Thus, under the 
proposal, Sec.  1026.18(g) would have applied only to closed-end 
transactions that are unsecured or secured by personal property that is 
not a dwelling. All closed-end transactions that are secured by either 
real property or a dwelling, including reverse mortgages, would have 
been subject instead to either the interest rate and payment summary 
table disclosure requirement under Sec.  1026.18(s) or the projected

[[Page 79786]]

payments table disclosure requirement under Sec. Sec.  1026.37(c) and 
1026.38(c), as applicable.
    In light of these proposed changes to the coverage of Sec.  1026.18 
generally, and specifically Sec.  1026.18(g), the Bureau proposed 
several conforming changes to the commentary under Sec.  1026.18(g). 
Specifically, comment 18(g)-4 would have been revised to remove a 
reference to home repairs, and comment 18(g)-5, relating to mortgage 
insurance, would have been removed and reserved. In addition, comment 
18(g)-6, which currently discusses the coverage of mortgage 
transactions as between Sec.  1026.18(g) and (s), would have been 
revised to reflect the additional effect of proposed Sec.  1026.19(e) 
and (f), which would have required the new integrated disclosures set 
forth in proposed Sec. Sec.  1026.37 and 1026.38 for most transactions 
secured by real property. Finally, the Bureau also proposed to amend 
comments 18(g)(2)-1 and -2 to remove unnecessary, and potentially 
confusing, references to mortgages and mortgage insurance.
    The Bureau did not receive comments on this aspect of the proposed 
rule. For the reasons discussed in the proposal, the Bureau is 
finalizing the commentary to Sec.  1026.18(g) as proposed.
18(k) Prepayment
    Section 1026.18(k) implements the provisions of TILA section 
128(a)(11), which requires that the transaction-specific disclosures 
for closed-end consumer credit transactions disclose whether (1) a 
consumer is entitled to a rebate of any finance charge upon prepayment 
in full pursuant to acceleration or otherwise, if the obligation 
involves a precomputed finance charge, and (2) a ``penalty'' is imposed 
upon prepayment in full of such transactions if the obligation involves 
a finance charge computed from time to time by application of a rate to 
the unpaid principal balance. 15 U.S.C. 1638(a)(11). Commentary to 
Sec.  1026.18(k) provides further guidance regarding the disclosures 
and provides examples of prepayment penalties and the types of finance 
charges where a consumer may be entitled to a rebate. For further 
background on Sec.  1026.18(k), see the section-by-section analysis of 
Sec.  1026.37(b)(4), below.
    The proposal would have defined ``prepayment penalty'' in proposed 
Sec.  1026.37(b)(4) for transactions subject to Sec.  1026.19(e) and 
(f) as a charge imposed for paying all or part of a loan's principal 
before the date on which the principal is due, and would have provided 
examples of prepayment penalties and other relevant guidance in 
proposed commentary. As noted in the proposal, the Bureau's proposed 
definition of ``prepayment penalty'' and commentary is based on its 
consideration of the existing statutory and regulatory definitions of 
``penalty'' and ``prepayment penalty'' under TILA and Regulation Z; the 
Board's proposed definitions of prepayment penalty in its 2009 Closed-
End Proposal, 2010 Mortgage Proposal, and 2011 ATR Proposal; and the 
Bureau's authority under TILA section 105(a) and Dodd-Frank Act 
sections 1032(a) and, for residential mortgage loans, 1405(b). Further 
background on the Bureau's definition of prepayment penalty and the 
basis of its legal authority for that definition is provided in the 
section-by-section analysis of Sec.  1026.37(b)(4), below.
    As discussed in the section-by-section analysis of Sec.  
1026.37(b)(4), the Bureau sought to coordinate the definition of 
``prepayment penalty'' in proposed Sec.  1026.37(b)(4) with the 
definitions in the Bureau's other rulemakings under the Dodd-Frank Act 
concerning ability-to-repay requirements, high-cost mortgages under 
HOEPA, and mortgage servicing. The Bureau sought to coordinate the 
definition of ``prepayment penalty'' due to its belief that, to the 
extent consistent with consumer protection objectives, adopting a 
consistent definition of ``prepayment penalty'' across its various 
pending rulemakings affecting closed-end mortgages will facilitate 
compliance. As an additional part of adopting a consistent regulatory 
definition of ``prepayment penalty,'' the Bureau proposed certain 
conforming revisions to Sec.  1026.18(k) and associated commentary.
    As stated in the TILA-RESPA Proposal, the Bureau recognized that, 
with such conforming revisions to Sec.  1026.18(k) and associated 
commentary, the revised definition of ``prepayment penalty'' would have 
applied to both closed-end mortgage and non-mortgage transactions. In 
particular, the proposed conforming revisions to Sec.  1026.18(k) would 
have defined ``prepayment penalty'' with reference to a prepayment of 
``all or part of'' the principal balance of a loan covered by the 
provision, while TILA section 128(a)(11) and current Sec.  1026.18(k) 
and its associated commentary refer to prepayment ``in full.'' The 
proposal recognized that this revision could lead to an expansion of 
the set of instances that trigger disclosure under Sec.  1026.18 of a 
prepayment penalty for closed-end transactions. The proposal stated the 
Bureau's belief that consumers entering into closed-end mortgage and 
non-mortgage transactions alike would have benefited from the 
transparency associated with more frequent and consistent disclosure of 
prepayment penalties. Therefore, the Bureau proposed to use its 
authority under TILA section 105(a) to make conforming revisions to 
Sec.  1026.18(k) because of its belief that those changes would have 
effectuated the purposes of TILA by promoting the informed use of 
credit. Similarly, the Bureau believed these revisions would have 
helped to ensure that the features of these mortgage transactions are 
fully, accurately, and effectively disclosed to consumers in a manner 
that permits consumers to understand better the costs, benefits, and 
risks associated with mortgage transactions, in light of the facts and 
circumstances, consistent with Dodd-Frank Act section 1032(a). The 
Bureau also believed the revisions would improve consumer awareness and 
understanding of residential mortgage loans, and would be in the 
interest of consumers and the public, consistent with Dodd-Frank Act 
section 1405(b). The Bureau solicited comment on this approach to the 
definition of prepayment penalty.
    To conform with the proposed definition of prepayment penalty in 
Sec.  1026.37(b)(4), proposed Sec.  1026.18(k)(1) would have deleted 
the phrase ``a statement indicating whether or not a penalty may be 
imposed if the obligation is prepaid in full'' and would have replaced 
it with the phrase ``a statement indicating whether or not a charge may 
be imposed for paying all or part of a transaction's principal before 
the date on which the principal is due.'' Proposed Sec.  1026.18(k)(2) 
would have added the phrase ``or in part'' at the end of the phrase ``a 
statement indicating whether or not the consumer is entitled to a 
rebate of any finance charge if the obligation is prepaid in full.''
    Proposed revised comments 18(k)-1 through -3 would have inserted 
the word ``prepayment'' before the words ``penalty'' and ``rebate'' 
when used, to standardize the terminology across Regulation Z (i.e., 
Sec.  1026.32(d)(6) currently refers to ``prepayment penalty,'' and 
proposed Sec.  1026.37(b)(4) uses the same phrase). Proposed revised 
comment 18(k)(1)-1 would have replaced the existing commentary text 
with the language from proposed comments 37(b)(4)-2 and -3 and proposed 
comment 18(k)(2)-1.A would have been revised with language from 
proposed comment 37(b)(4)-2.
    The Bureau did not receive comments on the proposed changes to 
Sec.  1026.18(k). However, the Bureau is finalizing

[[Page 79787]]

certain additional changes to Sec.  1026.18(k) and its commentary in 
order to adopt a consistent definition of ``prepayment penalty'' across 
its various rulemakings affecting closed-end mortgage transactions, as 
the Bureau stated it sought to do in the proposal. The reasons for 
these additional changes are discussed in the section-by-section 
analysis of Sec.  1026.37(b)(4). Specifically, comment 18(k)(1)-1.ii is 
revised to provide that the term ``prepayment penalty'' does not 
include a waived bona fide third-party charge imposed by the creditor 
if the consumer pays all of a covered transaction's principal before 
the date on which the principal is due sooner than 36 months after 
consummation, for consistency with comment 37(b)(4)-2.ii. The comment 
also provides an illustrative example. In addition, the Bureau is 
finalizing certain clarifying changes to comment 18(k)(1)-2.i, for 
consistency with comment 37(b)(4)-3.i. All other proposed amendments to 
Sec.  1026.18(k) and its commentary are finalized as proposed, for the 
reasons stated in the proposed rule and in the section-by-section 
analysis of Sec.  1026.37(b).
18(r) Required Deposit
    If a creditor requires the consumer to maintain a deposit as a 
condition of the specific transaction, current Sec.  1026.18(r) 
requires that the creditor disclose a statement that the APR does not 
reflect the effect of the required deposit. Comment 18(r)-6 provides 
examples of arrangements that are not considered required deposits and 
therefore do not trigger this disclosure. The Bureau proposed to remove 
and reserve paragraph 6.vi, which states that an escrow of condominium 
fees need not be treated as a required deposit. In light of the 
proposed changes to the coverage of Sec.  1026.18, the only 
transactions to which this guidance would have applied are reverse 
mortgages, which do not entail escrow accounts for condominium fees or 
any other recurring expenses. Accordingly, the Bureau believed that 
comment 18(r)-6.vi would have been rendered unnecessary by the 
proposal. The Bureau requested comment, however, on whether any kind of 
transaction exists for which this guidance would continue to be 
relevant under Sec.  1026.18, as amended by the proposal.
    One small bank commenter noted that the Bureau proposed to exempt 
transactions subject to proposed Sec.  1026.19(e) and (f) from the 
disclosures required by current Sec.  1026.18(r), but that the 
integrated disclosures do not contain a similar disclosure requirement. 
As noted further in the section-by-section analyses of Sec. Sec.  
1026.37 and 1026.38, the integrated disclosures focus on the most 
readily understandable information that consumers use when shopping for 
and understanding their mortgage loans. The Bureau also stated in the 
TILA-RESPA proposal that it was concerned about the risk to consumers 
of experiencing information overload, which has often been cited as a 
problem with financial disclosures. The disclosure required by current 
Sec.  1026.18(r), which is not specifically required by TILA, is not a 
disclosure that the Bureau's research and consumer testing indicates is 
important to consumers in understanding their loans. Accordingly, to 
reduce the potential for information overload for consumers, the Bureau 
is not requiring this disclosure in Sec. Sec.  1026.37 or 1026.38. 
However, the final rule does not prohibit creditors from providing 
disclosures or information not specifically required by Sec. Sec.  
1026.37 or 1026.38. But, such additional information must be segregated 
from the required disclosures. See comment 37(o)(1)-1 and comment 
38(t)(1)-1. For the reasons discussed in the proposal, the Bureau is 
finalizing comment 18(r)-6.vi as proposed.
18(s) Interest Rate and Payment Summary for Mortgage Transactions
    Section 1026.18(s) currently requires the disclosure of an interest 
rate and payment summary table for transactions secured by real 
property or a dwelling, other than a transaction secured by a 
consumer's interest in a timeshare plan. Under the TILA-RESPA Proposal, 
however, Sec.  1026.19(e) and (f) would have required new, separate 
disclosures for transactions secured by real property, other than 
reverse mortgages. Generally, the disclosure requirements of Sec.  
1026.19(e) and (f) would have applied to transactions currently subject 
to Sec.  1026.18(s), except that reverse mortgages and transactions 
secured by dwellings that are personal property would have been 
excluded. In addition, as discussed in the section-by-section analysis 
of Sec.  1026.19, transactions secured by a consumer's interest in a 
timeshare plan would have been covered by the integrated disclosure 
requirements of Sec.  1026.19(e) and (f), although such transactions 
are not currently subject to the requirements of Sec.  1026.18(s).
    The new, integrated disclosures would have included a different 
form of payment schedule table, under Sec. Sec.  1026.37(c) and 
1026.38(c), instead of the interest rate and payment summary table 
under Sec.  1026.18(s). Accordingly, the Bureau proposed to amend Sec.  
1026.18(s) to provide that it would have applied to transactions that 
are secured by real property or a dwelling, other than transactions 
that are subject to Sec.  1026.19(e) and (f) (i.e., reverse mortgages 
and dwellings that are not secured by real property). The Bureau 
proposed parallel revisions to comment 18(s)-1 to reflect this change 
in the scope of Sec.  1026.18(s)'s coverage. The Bureau also proposed 
to add a new comment 18(s)-4 to explain that Sec.  1026.18(s) would 
have governed only closed-end reverse mortgages and closed-end 
transactions secured by a dwelling that is personal property.
    The Bureau did not receive comments on this aspect of the proposed 
rule. For the reasons discussed in the proposal, the Bureau is 
finalizing the revisions to Sec.  1026.18(s) and comment 18(s)-1 and 
adding new comment 18(s)-4 as proposed.
    While not specifically addressed in the proposal, one large 
provider of mortgage origination software commenter suggested the 
Bureau clarify that the interest rate and payment summary table 
represents a payment schedule that is a material disclosure for 
purposes of Sec.  1026.23. Although the Bureau is not adopting such a 
clarification in the rule at this time, the Bureau notes that current 
Regulation Z defines ``material disclosures'' to include the ``payment 
schedule'' disclosure, which has historically been implemented under 
Sec.  1026.18(g), but is currently also implemented in Sec.  1026.18(s) 
for closed-end transactions secured by real property or a dwelling and, 
under this final rule, for a transaction that is subject to Sec.  
1026.19(e) and (f), in Sec. Sec.  1026.37(c) and 1026.38(c). Section 
1026.18(g) and (s) and Sec. Sec.  1026.37(c) and 1026.38(c) each 
implement TILA section 128(a)(6), which requires the creditor to 
disclose the number, amount, and due dates or period of payments 
scheduled to repay the total of payments. Accordingly, each of these 
disclosures is a ``payment schedule'' for purposes of Sec.  1026.23.
18(s)(3) Payments for Amortizing Loans
18(s)(3)(i)(C)
    Current Sec.  1026.18(s)(3)(i)(C) requires creditors to disclose 
whether mortgage insurance is included in monthly escrow payments in 
the interest rate and payment summary. The proposal noted that the 
Bureau understands that some government loan programs impose annual 
guarantee fees and that creditors typically collect a monthly escrow 
for the payment of such amounts. Prior to issuing the proposal, the 
Bureau learned

[[Page 79788]]

through industry inquiries that uncertainty exists regarding whether 
such guarantee fees should be disclosed as mortgage insurance under 
Sec.  1026.18(s)(3)(i)(C) if the guarantee technically is not insurance 
under applicable law. As stated in the proposal, one way to comply with 
Sec.  1026.18(s) is to include such guarantee fees in the monthly 
payment amount, without using the check box for ``mortgage insurance.'' 
See comment 18(s)(3)(i)(C)-1 (escrowed amounts other than taxes and 
insurance may be included but need not be). Although the Bureau 
recognized that government loan program guarantees may be legally 
distinguishable from mortgage insurance, they are functionally very 
similar. Moreover, the Bureau believed that such a technical, legal 
distinction is unlikely to be meaningful to most consumers. Therefore, 
the Bureau believed that the disclosure of such fees would be improved 
by including them in the monthly escrow payment amount and using the 
check box for ``mortgage insurance.''
    For these reasons, pursuant to its authority under TILA section 
105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage 
loans, Dodd-Frank Act section 1405(b), the Bureau proposed to revise 
Sec.  1026.18(s)(3)(i)(C) to provide that mortgage insurance or any 
functional equivalent must be included in the estimate of the amount of 
taxes and insurance, payable with each periodic payment. Proposed 
comment 18(s)(3)(i)(C)-2 would have been revised to conform to Sec.  
1026.18(s)(3)(i)(C). Specifically, the proposed comment would have 
clarified that, for purposes of the interest rate and payment summary 
disclosure required by Sec.  1026.18(s), ``mortgage insurance or any 
functional equivalent'' includes ``mortgage guarantees'' (such as a 
United States Department of Veterans Affairs or United States 
Department of Agriculture guarantee) that provide coverage similar to 
mortgage insurance, even if not technically considered insurance under 
State or other applicable law. Since mortgage insurance and mortgage 
guarantee fees are functionally very similar, the Bureau believed that 
including both amounts in the estimate of taxes and insurance on the 
table required by Sec.  1026.18(s) would have promoted the informed use 
of credit, thereby carrying out the purposes of TILA, consistent with 
TILA section 105(a). In addition, the proposed disclosure would have 
ensured that more of the features of the mortgage transaction are 
fully, accurately, and effectively disclosed to consumers in a manner 
that will permit consumers to understand the costs, benefits, and risks 
associated with the mortgage transaction, consistent with Dodd-Frank 
Act section 1032(a), and would have improved consumer awareness and 
understanding of residential mortgage loans and would have been in the 
interest of consumers and the public, consistent with Dodd-Frank Act 
section 1405(b). Proposed comment 18(s)(3)(i)(C)-2 would have been 
consistent with the treatment of mortgage guarantee fees on the 
projected payments table required by proposed Sec. Sec.  1026.37(c) and 
1026.38(c). See the section-by-section analyses of Sec. Sec.  
1026.37(c) and 1026.38(c) for a description of the treatment of 
mortgage guarantee fees in those sections.
    One mortgage origination software provider commenter noted that the 
proposed revision to Sec.  1026.18 to include the ``functional 
equivalent'' of mortgage insurance in the disclosure would benefit 
consumers and creditors. However, one GSE commenter stated that the 
proposed revision to include the ``functional equivalent'' of mortgage 
insurance in the disclosure would create uncertainty as to what 
information must be disclosed because the language in the proposed rule 
could unintentionally cover a variety of credit enhancement or other 
structures, such as lender-paid mortgage insurance, that are not 
incremental to the consumers monthly payment and are disclosed 
elsewhere. That commenter suggested that the Bureau remove the 
reference to ``any functional equivalent'' of mortgage insurance and 
limit inclusion of the cost of mortgage guarantees to only those 
associated with United States Department of Veterans Affairs or United 
States Department of Agriculture guarantees that result in an 
incremental cost to the consumer that is separate and apart from the 
consumer's monthly payment of principal and interest. The Bureau 
otherwise did not receive comments on this aspect of the proposed rule.
    For the reasons discussed in the proposal, the Bureau is finalizing 
the revisions to Sec.  1026.18(s)(3)(i)(C) and comment 18(s)(3)(i)(C)-2 
substantially as proposed, with certain clarifying changes to comment 
18(s)(3)(i)(C)-2. As proposed, that comment would have provided that 
``mortgage insurance'' means insurance against the nonpayment of, or 
default on, and individual mortgage. As finalized, however, the comment 
provides that ``mortgage insurance or any functional equivalent'' means 
the amounts identified in Sec.  1026.4(b)(5). The Bureau believes that 
referencing the component of the finance charge in Sec.  1026.4, rather 
than adopting a new definition, will facilitate compliance for 
creditors and avoid regulatory complexity, since the definition in 
Sec.  1026.4(b)(5) is a longstanding part of Regulation Z. This change 
is consistent with the definition of ``mortgage-related obligations'' 
in the Bureau's 2013 ATR Final Rule and with the references to mortgage 
insurance or any functional equivalent in Sec.  1026.37(c), described 
below. The Bureau is also making clarifying changes to the references 
to mortgage insurance in comments 18(s)(3)(i)(C)-1 and 18(s)(6)-1, for 
consistency with the changes to comment 18(s)(3)(i)(C)-2.
    The Bureau has considered the comment related to the disclosure of 
the ``functional equivalent'' of mortgage insurance, but does not 
believe the comment should be specifically addressed in the rule. 
Section 1026.18(s)(3)(i)(C) requires disclosure of mortgage insurance 
or any functional equivalent only if an escrow account will be 
established, and only requires disclosure of the amount that will be 
paid with each periodic payment. Because lender-paid mortgage insurance 
would not be paid with escrow account funds and would not be paid by 
the consumer with each periodic payment, Sec.  1026.18(s)(i)(C) and its 
commentary would not apply.
18(t) ``No-Guarantee-To-Refinance'' Statement
    Current Sec.  1026.18(t)(1) provides that, for a closed-end 
transaction secured by real property or a dwelling, other than a 
transaction secured by a consumer's interest in a timeshare plan 
described in 11 U.S.C. 101(53D), the creditor shall disclose a 
statement that there is no guarantee the consumer can refinance the 
transaction to lower the interest rate or periodic payments. The TILA-
RESPA Proposal would have revised current Sec.  1026.18(t) to provide 
that transactions subject to proposed Sec.  1026.19(e) and (f) would 
not be subject to the requirements of Sec.  1026.18(t)(1), and would 
have removed the exclusion for timeshare plans because transactions 
secured by a consumer's interest in a timeshare plan would have been 
subject to proposed Sec.  1026.19(e) and (f).
    The Bureau did not receive comments on this aspect of the proposed 
rule. Accordingly, and for the reasons discussed in the proposal, the 
Bureau is finalizing the revisions to Sec.  1026.18(t) as proposed.
Section 1026.19 Certain Mortgage and Variable-Rate Transactions
    The Bureau proposed to amend Sec.  1026.19 to define the scope of 
the

[[Page 79789]]

proposed integrated disclosures and to establish the requirements for 
provision of those disclosures.
Coverage of Integrated Disclosure Requirements
Background
    The Bureau proposed to require delivery of the integrated 
disclosures for closed-end consumer credit transactions secured by real 
property, other than reverse mortgages. As discussed above in part IV, 
section 1032(f) of the Dodd-Frank Act requires that ``the Bureau shall 
propose for public comment rules and model disclosures that combine the 
disclosures required under [TILA and sections 4 and 5 of RESPA], into a 
single, integrated disclosure for mortgage loan transactions covered by 
those laws.'' 12 U.S.C. 5532(f). In addition, sections 1098 and 1100A 
of the Dodd-Frank Act amended RESPA section 4(a) and TILA section 
105(b), respectively, to require the Bureau to publish a ``single, 
integrated disclosure for mortgage loan transactions (including real 
estate settlement cost statements) which includes the disclosure 
requirements of [TILA and sections 4 and 5 of RESPA] that, taken 
together, may apply to a transaction that is subject to both or either 
provisions of law.'' 12 U.S.C. 2604(a); 15 U.S.C. 1604(b). Accordingly, 
the Bureau is directed to establish the integrated disclosure 
requirements for ``mortgage loan transactions'' that are ``subject to 
both or either provisions of'' RESPA sections 4 and 5 (the statutory 
RESPA GFE and RESPA settlement statement requirements) and TILA.\180\
---------------------------------------------------------------------------

    \180\ In addition to, and at the same time as, provision of the 
RESPA GFE under RESPA section 5(c), section 5(d) also requires 
lenders to provide to mortgage applicants the home buying 
information booklet prepared by the Bureau pursuant to section 5(a). 
Although the Bureau did not propose to integrate the booklet with 
the RESPA GFE and TILA disclosures, the Bureau proposed to implement 
the booklet requirement in proposed Sec.  1026.19(g), discussed 
below. The same considerations of coverage discussed here with 
respect to the integrated disclosures also apply for purposes of the 
requirement to provide the special information booklet under Sec.  
1026.19(g).
---------------------------------------------------------------------------

    The Legal Authority discussion in part IV above also notes that, 
notwithstanding this integrated disclosure mandate, the Dodd-Frank Act 
did not reconcile important differences between RESPA and TILA, such as 
the delivery of the RESPA settlement statement and the final TILA 
disclosure, as well as the persons and transactions to which the 
disclosure requirements are imposed. Accordingly, to meet the 
integrated disclosure mandate, the Bureau believes that it must 
reconcile such statutory differences. The Bureau also recognizes that 
application of the integrated disclosure requirements of this final 
rule to certain transaction types may be inappropriate, even though 
those transaction types are within the scopes of one or both statutes. 
These issues and the Bureau's decisions for addressing them in the 
final rule are discussed below.
    Differences in coverage of RESPA and TILA. RESPA applies generally 
to ``federally related mortgage loans,'' which means loans (other than 
temporary financing such as construction loans) secured by a lien on 
residential real property designed principally for occupancy by one to 
four families and that are: (1) Made by a lender with Federal deposit 
insurance; (2) made, insured, guaranteed, supplemented, or assisted in 
any way by any officer or agency of the Federal government; (3) 
intended to be sold to Fannie Mae, Ginnie Mae, or (directly or through 
an intervening purchaser) Freddie Mac; or (4) made by a ``creditor,'' 
as defined under TILA, that makes or invests in real estate loans 
aggregating more than $1,000,000 per year, other than a State agency. 
12 U.S.C. 2602(1), 2604.\181\ RESPA section 7(a) provides that RESPA 
does not apply to credit for business, commercial, or agricultural 
purposes or to credit extended to government agencies. 12 U.S.C. 
2606(a). Thus, RESPA disclosures essentially are required for consumer-
purpose loans that have some Federal nexus (or are made by a TILA 
creditor with sufficient volume) and that are secured by real property 
improved by single-family housing.
---------------------------------------------------------------------------

    \181\ Although section 4 of RESPA, 12 U.S.C. 2603, originally 
recited that it applied to federally related mortgage loans as well, 
as amended by the Dodd-Frank Act it no longer does so explicitly. 
The Bureau nevertheless regards the RESPA settlement statement 
requirement as continuing to apply to federally related mortgage 
loans, consistent with the rest of RESPA's scope generally.
---------------------------------------------------------------------------

    Regulation X Sec.  1024.5 implements these statutory provisions. 
Section 1024.5(a) provides that RESPA and Regulation X apply to 
federally related mortgage loans, which are defined by Sec.  1024.2(b) 
to parallel the statutory definition described above. Regulation X 
Sec.  1024.5(b) establishes certain exemptions from coverage, including 
loans on property of 25 acres or more; loans for a business, 
commercial, or agricultural purpose; temporary financing, such as 
construction loans, unless the loan is used to finance transfer of 
title or may be converted to permanent financing by the same lender; 
and loans on unimproved property, unless within two years from 
settlement the loan proceeds will be used to construct or place a 
residence on the land. 12 CFR 1024.5(b)(1) through (4). Unlike the 
others, the exemption for loans secured by properties of 25 acres or 
more is not statutory and is established by Regulation X only.
    TILA, on the other hand, applies generally to consumer credit 
transactions of all kinds, including unsecured credit and credit 
secured by nonresidential property. 15 U.S.C. 1602(f) (``credit'' 
defined as ``the right granted by a creditor to a debtor to defer 
payment of debt or to incur debt and defer its payment''). Similar to 
RESPA, TILA excludes, among others, extensions of credit primarily for 
business, commercial, or agricultural purposes, or to government or 
governmental agencies or instrumentalities, or to organizations. 15 
U.S.C. 1603(1). In contrast with RESPA and Regulation X, however, TILA 
and Regulation Z have no exclusion for property of 25 acres or more, 
temporary financing, or vacant land. Moreover, TILA applies only to 
transactions made by a person who ``regularly extends'' consumer 
credit. Id. 1602(g) (definition of creditor).
    Regulation Z Sec. Sec.  1026.2(a)(14) and (17) and 1026.3(a) 
implement these statutory provisions. In particular, Sec.  
1026.2(a)(17) defines ``creditor,'' in pertinent part, as a person who 
regularly extends consumer credit, and Sec.  1026.2(a)(17)(v) further 
provides that, for transactions secured by a dwelling (other than 
``high-cost'' loans subject to HOEPA), a person ``regularly extends'' 
consumer credit if it extended credit more than five times in the 
preceding calendar year. Section 1026.3(a) implements the exclusion of 
credit extended primarily for a business, commercial, or agricultural 
purpose, as well as credit extended to other than a natural person, 
including government agencies or instrumentalities.
    Although TILA generally applies to consumer credit that is 
unsecured or secured by nonresidential property, Dodd-Frank Act section 
1032(f), RESPA section 4(a), and TILA section 105(b) specifically limit 
the integrated disclosure requirement to ``mortgage loan 
transactions.'' The Dodd-Frank Act did not specifically define 
``mortgage loan transaction,'' but did direct that the disclosures be 
designed to incorporate disclosure requirements that may apply to ``a 
transaction that is subject to both or either provisions of the law.''
    As described above, five types of loans are currently covered by 
TILA or RESPA, but not both. Under the foregoing provisions, loans to 
finance home construction that do not finance transfer of title and for 
which the

[[Page 79790]]

creditor will not extend permanent financing (construction-only loans), 
loans secured by unimproved land already owned by the consumer and on 
which a residence will not be constructed within two years (vacant-land 
loans), and loans secured by land of 25 acres or more (25-acre loans) 
all are subject to TILA but are currently exempt from RESPA 
coverage.\182\ In addition, loans secured by dwellings that are not 
real property, such as mobile homes, houseboats, recreational vehicles, 
and similar dwellings that are not deemed real property under State 
law, (chattel-dwelling loans) could be considered ``mortgage loan 
transactions,'' and they also are subject to TILA but not RESPA. On the 
other hand, federally related mortgage loans made by persons who are 
not creditors under TILA, because they make five or fewer such loans 
per year, are subject to RESPA but not TILA. In addition, some types of 
mortgage loan transactions are covered by both statutes, but may 
warrant uniquely tailored disclosures because they involve terms or 
features that are so different from standard closed-end transactions 
that use of the same form may cause significant consumer confusion and 
compliance burden for industry.
---------------------------------------------------------------------------

    \182\ The exemption for 25-acre loans is provided by Regulation 
X but does not appear in RESPA. See 12 CFR 1024.5(b)(1).
---------------------------------------------------------------------------

    The Bureau proposed to use its authority under TILA section 105(a), 
(b), and (f), RESPA sections 4(a) and 19(a), and Dodd-Frank Act section 
1032(a) and (f) and, for residential mortgage loans, 1405(b) to tailor 
the scope of the proposal so that the integrated disclosure 
requirements apply to all closed-end consumer credit transactions 
secured by real property, other than reverse mortgages. Thus, the 
proposal would have exempted reverse mortgages, open-end transactions, 
and transactions that are not secured by real property. The proposal 
also would have expanded the application of the integrated disclosure 
requirements to transactions secured by real property that do not 
contain a dwelling. As it explained in the proposal, the Bureau 
believed that doing so would ensure that, in most mortgage 
transactions, consumers receive integrated disclosure forms developed 
by the Bureau through extensive consumer testing that would improve 
consumers' understanding of the transaction. Furthermore, the Bureau 
believed that applying a consistent set of disclosure requirements to 
most mortgage transactions would facilitate compliance by industry. 
Similarly, the proposal would have both narrowed and expanded the 
application of other Dodd-Frank Act mortgage disclosure requirements to 
improve consumer understanding and facilitate compliance.\183\
---------------------------------------------------------------------------

    \183\ See, e.g., Dodd-Frank Act section 1414(a) (requires 
negative amortization disclosure for open- or closed-end consumer 
credit plans secured by a dwelling or residential real property that 
includes a dwelling that provides or permits a payment plan that may 
result in negative amortization) (TILA section 129C(f)); Dodd-Frank 
Act section 1419 (requires certain payment disclosures for variable 
rate residential mortgage loans for which an escrow account will be 
established) (TILA section 128(a)(16)); Dodd-Frank Act sections 
1461(a), 1462, and 1465 (requires certain payment and escrow 
disclosures for consumer credit transactions secured by a first lien 
on the principal dwelling of the consumer, other than an open-end 
credit plan or reverse mortgage) (TILA section 129D(h) and (j) and 
section 128(b)(4)); Dodd-Frank Act section 1475 (permits disclosure 
of appraisal management fees for federally related mortgage loans) 
(RESPA section 4(c)).
---------------------------------------------------------------------------

25-Acre Loans, Vacant-Land Loans, and Construction-Only Loans
    The Bureau proposed to apply the integrated disclosure requirements 
to 25-acre loans, construction-only loans, and vacant-land loans. While 
these loans are currently exempt from mortgage disclosure requirements 
under RESPA and Regulation X, see 12 CFR 1024.5(b)(1), (3), and (4), 
the Bureau proposed to cover them to ensure that, in most mortgage 
transactions, consumers receive a consistent set of disclosures to 
improve consumer understanding and facilitate compliance. The Bureau 
explained that, if such transactions were not subjected to the 
integrated disclosure requirements, they would remain subject to the 
existing TILA disclosures under Sec.  1026.18. The Bureau stated its 
belief that this treatment would deprive consumers in such transactions 
of the benefits of the disclosures developed for this proposal. 
Moreover, the Bureau explained that these types of transactions involve 
real property and, therefore, are amenable to disclosure of the 
information currently disclosed through the RESPA GFE and RESPA 
settlement statement requirements. Thus, the Bureau expected that 
creditors should be able to use existing systems to provide the 
integrated disclosures for such transactions. The Bureau solicited 
comment, however, on whether application of the integrated disclosures 
to these transactions would impose significant burdens on creditors.
Comments
    25-acre loans. Several commenters expressed support for covering 
25-acre loans. A financial holding company indicated that covering 
these loans would facilitate compliance. A software company commenter 
and a title insurance company commenter stated that they did not 
believe covering these loans would be unduly burdensome on creditors, 
particularly if the Bureau provided guidance to address the unique 
characteristics of these loans. The software company commenter also 
explained that consumers who enter into multiple transactions at once 
would benefit from receiving consistent disclosures for different types 
of loans. A trade association representing banks from a midwestern 
State explained that many loans secured by properties of 25 acres or 
more are consumer-purpose loans for home construction, home 
improvement, refinance, or land acquisition. This commenter explained 
that these loans are typically structured the same as loans secured by 
properties on 24 or fewer acres and have similar costs, and that it is 
typically clear when they are being made for a consumer purpose, as 
opposed to a business purpose. Thus, the commenter explained that its 
membership generally did not object to providing the integrated 
disclosures for all consumer-purpose loans secured by real property, 
without regard to property size.
    By contrast, trade associations representing banks, a compliance 
company, a rural lender, and several community banks explained that 
many loans on 25 acres or more have more than one purpose and that 
loans that have a business, commercial, or agricultural purpose should 
be exempt under Regulation Z. The rural lender also recommended that 
the Bureau deem in the final rule all loans secured by 25 acres or more 
to be business, commercial, or agricultural purpose loans. The rural 
lender commenter explained that its customers often take out consumer-
purpose loans on properties of 25 acres or more, and that eliminating 
the current RESPA exemption for such loans would place a significant 
burden on rural creditors.\184\ The commenter noted that these loans 
were not subject to abusive mortgage practices in the past, and that 
the additional disclosures would impose a significant amount of 
paperwork and compliance burden, which would require it to increase 
staff. A rural lender commenter argued that covering loans on 
properties of 25 acres or more would not provide a significant

[[Page 79791]]

consumer benefit and could hurt customers because additional disclosure 
requirements would delay closings, inhibit access to credit, and 
increase costs for customers. Other industry commenters recommended 
that, if a loan on 25 acres or more has a business, commercial, or 
agricultural purpose, then the loan's primary purpose should be deemed 
as such, which would exempt the loan from the rule's coverage, 
consistent with the current treatment of such loans under Regulation X.
---------------------------------------------------------------------------

    \184\ The rural lender indicated that approximately 55 percent 
of its consumer-purpose loan applications and 61 percent of closed-
end consumer-purpose loans secured with real property are currently 
exempt from the RESPA GFE and RESPA settlement statement 
requirements, respectively.
---------------------------------------------------------------------------

    Other creditor and bank trade association commenters were concerned 
that covering business, commercial, or agricultural loans would 
decrease lending in that market. A trade association commenter 
representing banks asserted that the Bureau lacked authority to 
regulate such transactions because RESPA applies only to consumer 
mortgage loans, TILA applies only to consumer credit, and Dodd-Frank 
Act section 1405(b) authorizes modified disclosures for ``residential 
mortgage loans'' only for the purpose of improving consumer awareness 
and understanding.
    Vacant-land loans. A credit union commenter and an employee of a 
software company expressed support for covering vacant-land loans 
because standardizing loan disclosure for loans secured by real estate 
would benefit consumers and financial institutions. A title insurance 
company stated that it did not believe there would be a significant new 
burden if these loans were covered by the final rule. The software 
company commenter stated that it did not believe covering these loans 
would be unduly burdensome on creditors, particularly if the Bureau 
provided guidance to address the unique characteristics of these loans. 
This commenter also explained consumers who enter into multiple 
transactions at once would benefit from receiving consistent 
disclosures for different types of loans.
    By contrast, a rural lender commenter, a compliance company, and a 
trade association representing credit unions requested that the Bureau 
exempt loans secured by vacant land. The rural lender commenter 
specifically requested that the Bureau consider exempting vacant-land 
loans on which a home will not be constructed or placed using the loan 
proceeds within two years after settlement of the loan, which would be 
consistent with the exemption under current Regulation X Sec.  
1024.5(b)(4). The commenter explained that these loans, together with 
loans on properties of 25 acres or more and forms of temporary 
financing, comprise 55 percent of its consumer-purpose, real estate-
secured loan applications and 61 percent of its closed-end consumer-
purpose, real estate-secured loans that are currently exempt from RESPA 
GFE and RESPA settlement statement requirements, respectively. The 
commenter also observed that these loans were not subject to abusive 
mortgage practices in the past. Other commenters, including community 
banks, argued that covering vacant-land loans would not provide a 
significant consumer benefit and could hurt consumers because 
additional disclosure requirements would delay and complicate closings, 
inhibit access to credit, and increase costs for consumers. The trade 
association representing credit unions argued that many aspects of the 
proposal would be incongruous for vacant-land loans.
    Construction-only loans. A credit union commenter and an employee 
of a software company expressed support for covering temporary loans 
because standardizing loan disclosure for loans secured by real estate 
would benefit consumers and financial institutions. A title insurance 
company stated that it did not believe there would be significant new 
burden if these loans were covered by the final rule. The software 
company commenter stated that it did not believe covering these loans 
would be unduly burdensome on creditors, particularly if the Bureau 
provided guidance to address the unique characteristics of these loans. 
This commenter also explained consumers who enter into multiple 
transactions at the same time would benefit from receiving consistent 
disclosures for different types of loans.
    By contrast, a compliance company, a law firm submitting comments 
on behalf of a software company, a credit union, and trade associations 
representing banks and credit unions argued that temporary financing, 
particularly construction-only loans and bridge loans, also should be 
exempt because their unique characteristics make them ill-suited for 
RESPA disclosures. The trade association representing credit unions 
indicated that imposing the proposed timing requirements on 
construction-only loans would be unreasonable because the timing of 
their consummation is often affected by unforeseeable events, such as 
weather or material shortages, which would make it difficult to 
disclose the actual terms of their transactions in advance. The trade 
association commenter representing banks identified several 
characteristics of temporary or bridge loans it believed distinguished 
them from other transaction types: instead of monthly principal and 
interest payments, such loans typically require interest only payments 
or irregular quarterly payments with the principal balance due at 
maturity; no escrow account is established; no mortgage insurance is 
obtained; prepayment penalties are rare; and, typically closing costs 
are minimal because most costs are tied to the permanent financing. The 
commenter expressed concern that these unique features would mean bank 
software systems would not accurately populate the integrated 
disclosures and that associated compliance risk would reduce the 
availability of such products. The community bank commenter also argued 
that covering construction loans would reduce lending volume, 
complicate and delay closings, and would not necessarily benefit 
consumers. This commenter also observed that providing integrated 
disclosures for temporary and bridge loans would provide little benefit 
because they typically are made in conjunction with longer-term loans 
or until permanent financing is secure, and thus usually have lower 
costs than other loans. The compliance company commenter stated that 
construction-only loans are not consumer-purpose loans and consumers 
would receive no benefit from disclosures for such loans. The law firm 
commenter stated the Bureau was inconsistent by not exempting 
construction loans, which the company believed were distinct from 
traditional mortgage loans. This commenter identified several specific 
characteristics of construction loans that raised questions about the 
application of the proposal's integrated disclosure requirements, such 
as disclosure of loan term, adjustable payments, and adjustable 
interest rates.
    A rural lender commenter requested that the Bureau exempt loans for 
temporary financing unless the loan is used to finance transfer of 
title or may be converted to permanent financing by the same creditor. 
The commenter explained that these loans, together with loans on 
properties of 25 acres or more and vacant land loans, comprise 55 
percent of its consumer-purpose, real estate-secured loan applications 
and 61 percent of its closed-end consumer-purpose, real estate-secured 
loans that are currently exempt from RESPA GFE and RESPA settlement 
statement requirements, respectively. The commenter also argued that 
covering temporary financing would not provide a significant consumer 
benefit and could harm consumers because additional disclosure 
requirements would delay closings, restrict access to credit, increase 
costs for consumers, and

[[Page 79792]]

impede consumers' ability to purchase new homes. The commenter also 
noted that these loans were not subject to abusive mortgage practices 
in the past.
Final Rule
    The Bureau has considered the comments received regarding the 
applicability of the integrated disclosures to 25-acre loans, vacant-
land loans, and construction-only loans.
    25-acre loans. The Bureau declines to deem loans on properties of 
25 acres or more that have a business, commercial, or agricultural 
purpose as non-consumer-purpose loans, notwithstanding any consumer 
purpose they may have.\185\ TILA and Regulation Z already contemplate 
transactions that may have multiple purposes, and coverage depends on 
the primary purpose of the loan. TILA section 103(i) defines a 
``consumer'' credit transaction as one in which the money, property, or 
services which are the subject of the transaction are ``primarily'' for 
personal, family, or household purposes. The definition of ``consumer 
credit'' in Regulation Z Sec.  1026.2(a)(12) is consistent with this 
statutory definition. In addition, currently under Regulation Z, as in 
the final rule, an extension of credit primarily for business, 
commercial, or agricultural purpose is already exempt from the 
requirements of Regulation Z. See Sec.  1026.3(a)(1). Current comment 
3(a)-1 explains that a creditor must determine in each case if the 
transaction is primarily for an exempt purpose, and other existing 
commentary to 1026.3(a) provides guidance on whether particular types 
of credit, including credit for an agricultural purpose, are covered by 
Regulation Z. Further, loans on 25 acres or more that qualify as 
closed-end ``consumer credit'' under Regulation Z are currently subject 
to disclosure requirements under subpart C of Regulation Z, including 
those in Sec.  1026.18. Accordingly, creditors should be familiar with 
determining whether a loan on such properties is exempt.
---------------------------------------------------------------------------

    \185\ The final rule also removes the 25-acre loan exemption 
from Regulation X. See the section-by-section analysis of Sec.  
1026.5(b)(1) above.
---------------------------------------------------------------------------

    Although the Bureau received some comments suggesting that 
properties of 25 acres or more frequently have a non-consumer purpose, 
the Bureau received other comments, including one from a trade 
association representing banks located in a midwestern State, that 
loans on properties of 25 acres or more can be made for consumer 
purposes, such as home construction, home improvement, refinance, or 
land acquisition. Thus, even though a large-property loan may have a 
business, commercial, or agricultural purpose, the Bureau does not 
believe that fact alone should be sufficient to determine that the loan 
is not made primarily for a consumer purpose. Further, such an 
interpretation could have implications beyond this final rule to other 
parts of Regulation Z and remove existing TILA protections for 
consumers in rural areas.
    The Bureau recognizes that making such loans subject to the 
integrated disclosure requirements will impose a new burden on 
industry. However, the Bureau believes covering such loans under the 
final rule is consistent with the Dodd-Frank Act integration mandate 
applicable to mortgage loan transactions. Additionally, exempting such 
loans altogether could deprive these consumers of an important benefit. 
Further, basing coverage on whether real estate secures the transaction 
will facilitate compliance because creditors will not have to identify 
the size of the property before or upon receipt of an application to 
determine whether a Loan Estimate must be provided.
    Vacant-land loans. While vacant-land loans may not pose the same 
type of risk as dwelling-secured loans in the short term, they could 
present such risks if a consumer decides to construct a dwelling in the 
future. In addition, vacant land is itself an important source of value 
for consumers.
    The Bureau believes the integration mandate applies to more than 
just dwelling-secured loans. Dodd-Frank Act sections 1032(f), 1098, and 
1100A, which amend RESPA section 4(a) and TILA section 105(b), limit 
the integrated disclosure requirement to ``mortgage loan 
transactions.'' However, the Dodd-Frank Act did not specifically define 
that term. The Bureau believes the term extends broadly to real estate-
secured transactions as the Dodd-Frank Act did not use the term 
``residential mortgage loan,'' which was defined in Dodd-Frank Act 
section 1401. Moreover, the Dodd-Frank Act directs the Bureau to 
develop integrated disclosure requirements that may apply to a 
transaction that is subject to both or either provisions of TILA and 
RESPA. Although RESPA and Regulation X exempt vacant-land loans from 
coverage, TILA and Regulation Z apply to such loans.
    Accordingly, the Bureau believes these loans are covered by the 
integration mandate, and the Bureau believes that the integrated 
disclosures would be just as useful to a consumer whose closed-end 
credit transaction is secured by vacant real estate as they would to a 
consumer whose transaction is secured by real estate with a dwelling. 
In addition, the Bureau believes covering all real estate-secured 
closed-end consumer credit transactions (other than reverse mortgages) 
will facilitate industry compliance. Under the final rule, creditors 
will not have to determine whether the property includes a dwelling or 
if the loan proceeds will be used to construct a dwelling within two 
years from the date of the settlement of the loan \186\ before or upon 
receipt of an application to determine whether a Loan Estimate must be 
provided.
---------------------------------------------------------------------------

    \186\ Regulation X currently exempts from coverage any loan 
secured by vacant or unimproved property, unless, within two years 
from the date of the settlement of the loan, a structure or a 
manufactured home will be constructed or placed on the real property 
using the loan proceeds. 12 CFR 1024.5(b)(4). If a loan for a 
structure or manufactured home to be placed on vacant or unimproved 
property will be secured by a lien on that property, the transaction 
is covered by Regulation X. Id.
---------------------------------------------------------------------------

    Construction-only loans. The Bureau believes covering temporary 
loans secured by real estate will benefit consumers and will facilitate 
compliance because covering real estate-secured, closed-end consumer 
credit transactions, other than reverse mortgages, provides a clear 
compliance rule for industry. The Bureau notes that, while many 
construction-only loans may not be for a consumer purpose, only those 
loans made ``primarily'' for personal, family, or household purposes 
are covered by the final rule, consistent with the definition of 
``consumer credit'' in Regulation Z Sec.  1026.2(a)(12). Although the 
Bureau appreciates that the terms of a construction-only transaction 
may change based on unforeseen circumstances, these loans are not 
unique in that respect. Moreover, the Bureau has addressed the need for 
flexibility with respect to the provision of the Loan Estimate and 
Closing Disclosure under Sec.  1026.19(e) and (f), such that unforeseen 
circumstances should not interfere with the provision of those 
disclosures. For example, the good faith estimate requirement 
applicable to the Loan Estimate is subject to changed circumstances set 
forth in Sec.  1026.19(e)(3)(iv)(A). In addition, as discussed in the 
section-by-section analysis of Sec.  1026.19(f)(2), the final rule 
revises the redisclosure triggers applicable to the Closing Disclosure 
to account for unforeseen circumstances that could make previously 
disclosed settlement costs inaccurate. The Bureau appreciates that 
temporary loans, such as construction-only loans, may have unique 
characteristics that require special guidance. In response to

[[Page 79793]]

comments, the final rule provides additional clarity on how to disclose 
such construction-only loans, as described in the section-by-section 
analyses of the respective provisions of Sec. Sec.  1026.37 and 
1026.38.
    Conclusion. The Bureau believes that including 25-acre loans, 
vacant-land loans, and construction-only loans within the scope of the 
integrated disclosure requirements effectuates the purposes of TILA 
under TILA section 105(a), because it would ensure meaningful 
disclosure of credit terms to consumers and facilitate compliance with 
the statute. In addition, consistent with section 1032(a) of the Dodd-
Frank Act, coverage of these types of loans will ensure that the 
features of consumer credit transactions secured by real property are 
fully, accurately, and effectively disclosed to consumers in a manner 
that permits consumers to understand the costs, benefits, and risks 
associated with the product or service, in light of the facts and 
circumstances. Further, the Bureau adopts these requirements for 
residential mortgage loans based on its authority under Dodd-Frank Act 
section 1405(b), as it believes the modification will improve consumer 
awareness and understanding of transactions involving residential 
mortgage loans through the use of disclosures, and will be in the 
interest of consumers and in the public interest. Accordingly, for the 
aforementioned reasons, the final rule covers loans secured by 
properties of 25 acres or more, loans in which vacant land secures a 
closed-end consumer credit transaction, including loans on which a home 
will not be constructed or placed using the loan proceeds within two 
years after settlement of the loan, and construction-only loans and 
other forms of temporary financing secured by real property.
Reverse Mortgages, HELOCs, and Chattel-Dwelling Loans
    As described in more detail below, the Bureau proposed to exempt 
from the integrated disclosure requirements certain loans that are 
currently covered by both TILA and RESPA (reverse mortgages and open-
end transactions secured by real property or a dwelling), and certain 
loans that are covered by TILA but not RESPA (chattel-dwelling loans). 
The Bureau explained in the proposal that, for these mortgage 
transactions, the Bureau believes application of the integrated 
disclosure requirements would not improve consumer understanding or 
facilitate compliance and that these transactions should therefore be 
exempted from the integrated disclosure requirements.
    Reverse mortgages. The Bureau proposed to exempt reverse mortgage 
loans, as defined under Sec.  1026.33, from the integrated disclosure 
requirements. The Bureau explained in the proposal that it was aware 
that lenders and creditors face significant difficulties applying the 
disclosure requirements of RESPA and TILA to reverse mortgages, in 
light of those transactions' unusual terms and features. The 
difficulties appear to stem from the fact that a number of the 
disclosed items under existing Regulations X and Z are not relevant to 
such transactions and therefore have no meaning. Moreover, the Bureau 
explained in the proposal that it developed the proposed integrated 
disclosure forms for use in ``forward'' mortgage transactions and did 
not subject those forms, which implement essentially the same statutory 
disclosure requirements as do the current regulations, to any consumer 
testing using reverse mortgage transactions. The Bureau, therefore, was 
concerned that the use of the integrated disclosures for reverse 
mortgages may result in numerous disclosures of items that are not 
applicable, difficult to apply, or potentially even misleading or 
confusing for consumers.\187\ The Bureau expected to address reverse 
mortgages through a separate, future rulemaking process that would 
establish a distinct disclosure scheme.\188\
---------------------------------------------------------------------------

    \187\ In addition, many reverse mortgages are structured as 
open-end plans and therefore may be subject to the same concerns 
noted with respect to HELOCs.
    \188\ The Board's 2010 Mortgage Proposal included several 
provisions relating to reverse mortgages. See 75 FR 58539, 58638-59 
(Sept. 24, 2010). Specifically, the Board proposed requiring 
creditors to use new forms of disclosures designed specifically for 
reverse mortgages, rather than the standard TILA disclosures. The 
2010 Mortgage Proposal also proposed significant protections for 
reverse mortgage consumers, including with respect to advertising of 
reverse mortgages and cross-selling of reverse mortgages with other 
financial and insurance products. In addition, section 1076 of the 
Dodd-Frank Act required the Bureau to engage in a study of reverse 
mortgage transactions and instructs the Bureau to consider 
protections with respect to obtaining reverse mortgages for the 
purpose of funding investments, annuities, and other investment 
products and the suitability of a borrower in obtaining a reverse 
mortgage. The Bureau published the reverse mortgage study on June 
28, 2012. See Press Release, U.S. Consumer Fin. Prot. Bureau, CFPB 
Report Finds Confusion in Reverse Mortgage Market (June 28, 2012), 
available at http://www.consumerfinance.gov/pressreleases/consumer-financial-protection-bureau-report-finds-confusion-in-reverse-mortgage-market/. The Bureau intends that its future rulemaking for 
reverse mortgages will address the issues identified in the Board's 
2010 Mortgage Proposal and the findings of the Bureau's reverse 
mortgage study.
---------------------------------------------------------------------------

    HELOCs. Open-end transactions secured by real property or a 
dwelling (home-equity lines of credit, or HELOCs) are within the 
statutory scope of both TILA and RESPA and also reasonably could be 
considered ``mortgage loan transactions.'' However, as the Bureau 
explained in the proposal, HELOCs are, by their nature, fundamentally 
different from other forms of mortgage credit.
    Chattel-dwelling loans. Chattel-dwelling loans (such as loans 
secured by mobile homes) do not involve real property, by definition. 
The Bureau estimated in the proposal that approximately one-half of the 
closing-cost content of the integrated disclosures is not applicable to 
such transactions because they more closely resemble motor vehicle 
transactions than true mortgage transactions. Such transactions 
currently are not subject to RESPA and, unlike the transactions above 
that involve real property, generally are not consummated with ``real 
estate settlements,'' which are the basis of RESPA's coverage. Thus, 
the Bureau explained that, if these transactions were subject to the 
integrated disclosures under the proposal, a significant portion of the 
disclosures' content would be inapplicable. The Bureau explained that 
permitting those items to be omitted altogether could compromise the 
overall integrity of the disclosures, which were developed through 
consumer testing that never contemplated such extensive omissions, and 
the Bureau therefore had no basis for expecting that they would 
necessarily be as informative or understandable to consumers if so 
dramatically altered. The Bureau expressed similar concerns about 
keeping the overall forms intact but directing creditors to complete 
the inapplicable portions with ``N/A'' or simply to leave them blank. 
Moreover, the Bureau explained that such an approach would risk 
undermining consumers' understanding of their transactions, which would 
be inconsistent with the purpose of this rulemaking, because they could 
be distracted by extensive blank or ``N/A'' disclosures from the 
relevant disclosures present on the form.
Comments
    Reverse mortgages. A credit union commenter supported an exemption 
for reverse mortgage loans because of their uniqueness and because the 
required disclosures would confuse consumers. A settlement agent 
commenter stated that if reverse mortgage loans are exempt from the 
final rule, they also should be exempt from RESPA section 4. The 
commenter recommended a simple closing statement that would itemize 
debits and credits to the borrower and seller. By contrast,

[[Page 79794]]

another credit union commenter stated that reverse mortgage loans 
secured by real estate should be covered because standardizing loan 
disclosures for all real estate-secured loans would benefit consumers 
and financial institutions. The commenter recommended that additional 
disclosures required for reverse mortgages under Sec.  1026.33(b) could 
be added as an addendum to the integrated disclosures, and that 
consumers would benefit from the use of standard forms that they could 
rely on and understand, while financial institutions would benefit from 
having a single set of rules and disclosures that would apply to 
similar loans.
    HELOCs. A trade association representing credit unions and a credit 
union commenter supported an exemption for these loans due to their 
uniqueness and the fact that the required disclosures would not make 
much sense to the consumer for these types of transactions. A consumer 
advocacy group stated that HELOCs should have triggers and protections 
equal to those applicable to closed-end mortgage loans. The commenter 
explained that many consumers and creditors do not distinguish between 
open- and closed-end home-secured credit, and that the consequences of 
default on a HELOC are far more serious than for credit cards and more 
closely resemble the effects of default on a closed-end mortgage loan.
    Chattel-dwelling loans. A non-depository lender for manufactured 
homes and a trade association representing the manufactured home 
industry supported the exclusion for chattel-dwelling loans from the 
integrated mortgage disclosure requirements. The non-depository lender 
commenter explained that some States have laws that impose requirements 
that have been interpreted to require mortgage lenders to fully comply 
with the disclosure requirements of RESPA and/or TILA or their 
implementing regulations for loans secured by both personal property 
and real estate. The commenter further explained that the practical 
effect of dual application of RESPA and TILA under State law is that 
lenders must provide both old and new forms of the RESPA and TILA 
disclosures for the same transaction. The commenter stated its position 
that any State law or regulation that requires a mortgage lender to 
provide not only the proposed integrated disclosures but also the 
existing or current versions of the RESPA and Regulation X required 
disclosures in connection with chattel-dwelling loans is inconsistent 
with RESPA and Regulation X. The commenter requested that the Bureau 
exercise its authority pursuant to Regulation X Sec.  1024.13(b), both 
in connection with this rulemaking and in connection with current 
requirements regarding chattel-secured mortgage lending, to declare any 
such State law or regulation to be preempted by RESPA and Regulation X.
    A national trade association commenter representing the 
recreational vehicle industry expressed concern about language in the 
proposal's preamble about the treatment of transactions not subject to 
the final rule but that could arguably fall within Dodd-Frank Act 
sections 1032(f), 1098, and 1100A. The Bureau explained in the proposal 
that such transactions will remain subject to the existing disclosure 
requirements under Regulations X and Z, as applicable, until the Bureau 
adopts integrated disclosures specifically tailored to their distinct 
features.\189\ The commenter expressed concern that the Bureau intends 
to regulate recreational vehicle dealers through a future rulemaking by 
adopting integrated disclosures specifically tailored for such dealers. 
The commenter asked the Bureau to closely review the recreational 
vehicle market compared to the market for other chattel property, 
specifically manufactured homes. The commenter noted that signaling 
recreational vehicle dealers will be regulated by tailored future 
mortgage transaction disclosures confuses the motor vehicle sales 
process and would keep lenders out of that market. This commenter and a 
trade association representing the recreational boat industry were 
concerned that the definition of ``dwelling'' in Regulation Z and 
related commentary would cover types of vessels and vehicles that are 
generally not included in the definition of dwelling under State laws, 
and that covering these types of personal property would reduce the 
availability of credit to individuals living in these structures.
---------------------------------------------------------------------------

    \189\ See 77 FR 51116, 51156 (Aug. 23, 2012).
---------------------------------------------------------------------------

    A national trade association commenter representing credit unions 
and a credit union commenter supported the exemption for loans secured 
by personal property due to their uniqueness and the fact that the 
required disclosures would not make much sense to the consumer for 
these type transactions. A trade association commenter representing the 
manufactured home industry expressed concern that the proposal ignored 
that, in the manufactured housing industry, a home may be sold as 
personal property, and may only become real property at some later 
point in time in the home delivery and installation process. Commenters 
requested that the Bureau provide an exclusion from the new integrated 
disclosure requirements for land/home, staged funded manufactured home 
loans, even those loans that, when fully consummated, will be secured 
by real property. Several trade associations commenters representing 
banks requested that the Bureau clarify whether dual-collateral loans 
will be subject to the integrated disclosure requirements, and that if 
they are, that the Bureau consider developing related disclosures.
    In contrast, a nonprofit advocacy organization and two consumer 
advocacy groups submitting a joint comment stated that the Bureau 
should extend RESPA coverage to all manufactured homes, including those 
titled as personal or real property. The consumer advocacy groups 
emphasized that manufactured homes resemble other residential 
structures and should receive the same protections under RESPA. They 
also stated that covering vacant land loans but not manufactured homes 
would be inconsistent and could result in consumer harm. The commenters 
explained that dwelling-secured credit poses higher risk to consumers 
than loans secured by vacant land. Consumer advocacy group commenters 
also requested that the Bureau provide all homeowners adequate 
disclosures, regardless of whether State law denominates the dwelling 
as real or personal property. The commenters also argued that this 
result was imperative because consumers living in manufactured housing 
are particularly susceptible to abusive lending. The commenters also 
requested that the Bureau clarify the treatment of manufactured homes 
under RESPA, in light of guidance provided by HUD that suggested a 
manufactured home is subject to RESPA depending on the nature of the 
dwelling's connection to the land. The commenters asked that the Bureau 
clarify that RESPA applies to all manufactured homes treated as real 
property under State law.
Final Rule
    Reverse mortgages. As the Bureau explained in the proposal, reverse 
mortgages have unique features that are not amenable to the integrated 
disclosures, which were developed for forward mortgages. While 
requiring the integrated disclosures for reverse mortgages may provide 
a clearer coverage rule for creditors, applying the specific disclosure 
requirements to such loans would likely result in confusion for 
consumers and industry. As the

[[Page 79795]]

Bureau noted in the proposal, the Bureau expects to address disclosures 
for reverse mortgages in a future rulemaking.
    While the final rule exempts reverse mortgage loans from the 
integrated disclosure requirements of Sec.  1026.19(e) and (f), it 
declines to exempt them completely from RESPA. As discussed in the 
section-by-section analysis of appendices A and C of Regulation X 
above, the Bureau is finalizing amendments to Regulation X to 
incorporate certain guidance in the HUD RESPA FAQs regarding the 
completion of the RESPA GFE and the RESPA settlement statement for 
reverse mortgage transactions. Although, as it noted in the proposal, 
the Bureau is aware that industry faces difficulties applying the 
disclosure requirements of RESPA and TILA to reverse mortgages, the 
Bureau does not believe it would be appropriate to grant an exemption 
from RESPA for such transactions because it would leave consumers 
without important RESPA-required disclosures. For the aforementioned 
reasons, the Bureau declines to include reverse mortgage loans subject 
to Sec.  1026.33 within the scope of the integrated disclosure 
requirements of Sec.  1026.19(e) and (f).
    HELOCs. While the Bureau recognizes that open-end consumer credit 
transactions secured by real estate can pose risks to consumers, the 
Bureau continues to believe they would be inappropriate for coverage 
under the final rule. As the Bureau explained in the proposal, the 
integrated disclosures were developed for closed-end consumer credit, 
and the Bureau believes that using them to disclose open-end credit 
transactions would likely result in confusion because many parts of the 
disclosures would be inapplicable to open-end credit transactions, such 
as the projected payments table, the estimated taxes and insurance 
disclosure, or the escrow account disclosures under Sec. Sec.  
1026.37(c) and 1026.38(c).
    The Bureau notes that HELOCs are open-end credit plans and 
therefore are subject to different disclosure requirements than closed-
end credit transactions under Regulation Z. In recognition of the 
distinct nature of open-end credit, Regulation X effectively exempts 
such plans from the RESPA disclosure requirements. Sections 
1024.6(a)(2) and 1024.7(h) of Regulation X state that, for HELOCs, the 
requirements to provide the ``special information booklet'' regarding 
settlement costs and the RESPA GFE, respectively, are satisfied by 
delivery of the open-end disclosures required by Regulation Z. 
Regulation X Sec.  1024.8(a) exempts HELOCs from the RESPA settlement 
statement requirement altogether. The Bureau expects to address HELOCs 
through a separate, future rulemaking that will establish a distinct 
disclosure scheme tailored to their unique features, which will more 
effectively achieve the purposes of both RESPA and TILA.\190\
---------------------------------------------------------------------------

    \190\ In 2009, the Board proposed significant revisions to the 
disclosure requirements for HELOCs. See 74 FR 43428 (Aug. 26, 2009). 
The Bureau is now responsible for this proposal.
---------------------------------------------------------------------------

    Chattel-dwelling loans. The Bureau has considered the comments on 
the final rule's coverage with respect to chattel-dwelling loans. The 
Bureau believes that disclosing loans secured by personal property 
using the integrated disclosures could reduce the intended consumer 
benefit of the disclosures because of those loans' unique 
characteristics. Excluding them from coverage of these integrated 
disclosures, however, would not excuse them from TILA's disclosure 
requirements. Rather, they would remain subject to the existing closed-
end TILA disclosure requirements under Sec.  1026.18. Thus, the current 
treatment of chattel-dwelling-secured loans under both RESPA and TILA 
is preserved if they are excluded from coverage of the integrated 
disclosure requirements in this final rule. Excluding chattel-dwelling-
secured loans from the integrated disclosure requirements means they 
would not be subjected by this rulemaking to certain new disclosure 
requirements added to TILA section 128(a) by the Dodd-Frank Act. As 
discussed under the section-by-section analysis of Sec.  1026.1(c) 
above, certain other new mortgage disclosure requirements, added to 
TILA under title XIV of the Dodd-Frank Act are exempted until 
integrated disclosure requirements are implemented by regulations for 
such transaction types. As noted above, the Bureau plans to address 
integrated disclosure requirements for chattel-dwelling-secured loans, 
as well as reverse mortgages and HELOCs, in future rulemakings. The 
Bureau believes that the TILA disclosures resulting from that process 
would be more appropriate and more beneficial to consumers than the 
integrated disclosures under this final rule.
    With respect to commenters concerned about future rulemakings 
applicable to recreational vehicles, the Bureau notes that TILA 
currently applies to credit transactions broadly. See 15 U.S.C. 
1602(f). The Bureau also notes that closed-end consumer credit 
transactions not secured by real property, other than reverse mortgages 
subject to Sec.  1026.33, are already subject to disclosure 
requirements in subpart C of Regulation Z, including those in Sec.  
1026.18. Any subsequent disclosure requirements on creditors subject to 
the Bureau's authority will be based on a review of the relevant market 
and the adequacy of existing disclosures, among other factors. With 
respect to commenters concerned that the definition of ``dwelling'' in 
Regulation Z potentially covers recreational vehicles and other 
vessels, the Bureau did not propose changes to the definition of 
``dwelling'' under Sec.  1026.2(a)(19) in the proposal and is not 
making such changes in this final rule.
    Some commenters were concerned that coverage of multiple-advance 
construction loans may be secured by real property and personal 
property and, therefore, it may be unclear how a creditor would 
disclose such loans. However, the Bureau believes such loans are 
amenable to the integrated disclosures because such loans are secured 
by real property. The Bureau believes this treatment is warranted 
because the mandate to integrate disclosures under TILA and RESPA 
requires that the Bureau reconcile differences in coverage between the 
two statutes. The Bureau has addressed how to disclose such 
transactions in the rule, as described in the section-by-section 
analyses of Sec.  1026.18 and appendix D to Regulation Z.
    While the Bureau believes that most construction-only loans will be 
secured by real property at consummation, it recognizes that there may 
be circumstances in which such loans could be secured by personal 
property. Whether a transaction is secured by real property depends on 
State law, and the Bureau appreciates that, in some cases, a loan 
financing the construction phase of a dwelling may be classified as a 
loan secured by personal property at consummation of that phase of 
financing. Accordingly, the Bureau has retained existing regulatory 
provisions in Regulation Z that set forth disclosure requirements for 
construction loans applicable to closed-end consumer credit 
transactions not secured by real property.
    With respect to commenters who requested that the Bureau extend 
RESPA coverage to transactions secured by personal property, the Bureau 
declines to do so because RESPA and Regulation X apply by their terms 
to ``federally related mortgage loans,'' which are limited to 
transactions in which the lender has a lien secured by real property. 
The Bureau also declines

[[Page 79796]]

to exercise authority under TILA and the Dodd-Frank Act to extend 
coverage of the final rule to manufactured homes that are considered 
chattel under State law. The Bureau believes basing coverage on the 
characteristic of whether the loan is secured by real property is 
warranted because a significant portion of the content of the 
disclosures was developed for real property transactions. The Bureau 
also believes that basing coverage on the characteristic of whether the 
loan is secured by real property is necessary to harmonize the coverage 
of RESPA and TILA and satisfy the integration mandate. Although 
manufactured homes may resemble other forms of residential property, 
the Bureau does not believe this characteristic alone should be 
sufficient to warrant coverage under Sec.  1026.19(e) and (f). Other 
forms of chattel property besides manufactured homes also may serve as 
a residence, but more closely resemble motor vehicle transactions than 
real property transactions, and therefore many parts of the integrated 
disclosures would be inapplicable and would likely compromise consumer 
understanding of the disclosures. Finally, as the Bureau explained in 
the proposal, consumers who receive a loan secured by personal property 
would continue to be protected under the disclosures required elsewhere 
in Regulation Z, including those in Sec.  1026.18. The Bureau declines 
to make a determination under Sec.  1024.13(b), as requested by a 
commenter, regarding whether State laws conflict with the requirements 
of Regulation X. The commenter who requested this determination did not 
identify particular State laws that may conflict, and the Bureau 
therefore lacks a basis to make a conflict determination. See the 
section-by-section analysis of Sec.  1026.28 for a discussion of the 
State law exemption rules applicable to the integrated disclosure 
requirements of this final rule.
    Conclusion. For the reasons discussed above, the final rule does 
not apply to reverse mortgages, open-end credit transactions, or 
closed-end consumer transactions secured by personal property and not 
real property. Such loans will be subject to existing requirements in 
Regulation Z and reverse mortgages and open-end credit transactions 
will be subject to existing requirements in Regulation X. As discussed 
above, those transactions remain subject to the exemption in Sec.  
1026.1(c) from providing certain new disclosures under title XIV of the 
Dodd-Frank Act until the Bureau engages in future rulemakings for these 
transaction types.
Loans Extended by TILA ``Creditors''
    As noted above, RESPA applies generally to ``federally related 
mortgage loans,'' which means loans (other than temporary financing 
such as construction loans) secured by a lien on residential real 
property designed principally for occupancy by one to four families, 
and that have a Federal nexus or are made by a TILA ``creditor'' that 
makes or invests in real estate loans aggregating more than $1,000,000 
per year, other than a State agency. 12 U.S.C. 2602(1), 2604. TILA 
generally covers consumer credit transactions of all kinds, including 
unsecured credit and credit secured by nonresidential property and 
applies only to transactions made by a person who ``regularly extends'' 
consumer credit. For transactions secured by a dwelling, other than 
HOEPA loans, Regulation Z defines a ``creditor'' as a person who 
extends credit more than five times in the preceding calendar 
year.\191\
---------------------------------------------------------------------------

    \191\ See 15 U.S.C. 1602(g); 12 CFR 1026.2(a)(17).
---------------------------------------------------------------------------

    Lenders that do not meet the TILA definition of ``creditor'' 
generally are subject to RESPA if they make a real property-secured 
loan with a Federal nexus. The Bureau proposed to exempt from the 
integrated disclosure requirements loans extended by these lenders who 
are covered by RESPA but not TILA. The Bureau explained that, if a 
lender extends five or fewer consumer credit transactions secured by a 
consumer's dwelling in a year, it should not be subject to TILA or 
Regulation Z. This treatment would have preserved the status of such 
transactions under existing Regulation Z. That is, currently, consumers 
do not receive Regulation Z disclosures from such lenders because they 
are not considered ``creditors'' pursuant to Sec.  1026.2(a)(17)(v). 
The Bureau explained that eliminating this exemption could represent a 
significant expansion of TILA coverage and that it was unaware of any 
significant problems encountered by consumers obtaining credit from 
these types of creditors that might justify such an expansion. Further, 
because such creditors may lack the systems to comply with TILA, the 
Bureau anticipated they may cease to extend credit if forced to 
establish compliance systems. Although preserving this exemption means 
that the integrated disclosures would not be received by consumers in 
such transactions, the Bureau expected the impact of such an exemption 
to be limited. The Bureau noted in the proposal, based on data reported 
for 2010 under HMDA, that 569 creditors (seven percent of all HMDA 
reporters) reported five or fewer originations and, more significantly, 
that their combined originations of 1,399 loans equaled only 0.02 
percent of all originations reported under HMDA for that year. The 
Bureau further explained that these transactions would remain subject 
to the RESPA disclosure requirements under Regulation X.
Comments
    Commenters did not object to exempting these RESPA-covered lenders 
from the rule, but they did request that the Bureau further increase 
the threshold under Regulation Z for defining a TILA ``creditor.'' A 
trade association commenter representing settlement agents recommended 
that the threshold be increased to 25 annual transactions on mortgage 
loan transactions. A community bank commenter expressed support for a 
small creditor exemption with a threshold that exempts creditors that 
originate fewer than 2,500 loans in a calendar year. A law firm 
commenter recommended increasing the threshold to 100 mortgages a year.
    A trade association representing credit unions argued that the 
proposed threshold of five or fewer mortgages a year was not an 
appropriate measure to provide regulatory relief for small entities. 
This commenter was concerned that the Bureau appeared to be defining 
``small entities'' on a basis that appeared to be inconsistent with the 
Dodd-Frank Act, the Small Business Regulatory Enforcement Fairness Act 
of 1996 (SBREFA), and the Bureau's past actions in conducting small-
entity outreach under SBREFA, which identified small entities based on 
asset size, rather than lending volume. This commenter was concerned 
that a low exemption threshold would impose large costs on many credit 
unions not covered by the exemption and would force some credit unions 
to close their operations. The commenter recommended an exemption for 
credit unions that have $175 million or less in assets, which would be 
consistent with the size thresholds used for purposes of analysis under 
SBREFA. The commenter argued that the Dodd-Frank Act requires the 
agency to seriously consider the impact of its regulations on small 
entities. A commenter employed by a software company, however, stated 
that the rule should not modify the transaction threshold under Sec.  
1026.2(a)(17) because doing so would provide no consumer benefit, and 
that consistent application across creditors would facilitate shopping 
by the consumer. Several

[[Page 79797]]

individual commenters and settlement agents expressed concern that it 
would be difficult to identify criteria for a small creditor 
definition. A law firm commenter also recommended that the Bureau 
include an exemption for small businesses.
Final Rule
    The Bureau has considered the comments regarding the final rule's 
applicability to creditors subject to TILA and RESPA. The Bureau 
declines to grant an exemption for small creditors, such as one based 
on asset size, or otherwise make adjustments to the five-or-fewer 
mortgage threshold included in the definition of ``creditor'' under 
Sec.  1026.2(a)(17), as discussed further in the section-by-section 
analysis of Sec.  1026.2(a)(17). The Bureau does not believe exempting 
small creditors from the integrated disclosure requirements would be 
consistent with the integration mandate. The Bureau also believes such 
an exemption would hinder, rather than enhance, consumer understanding. 
Exempting a class of creditors from the final rule would result in an 
inconsistent set of disclosures that would negatively affect a 
consumer's ability to shop for the best loan. The integrated 
disclosures were designed to assist a consumer in comparing loans. The 
Bureau is concerned, for example, that a consumer who receives a Loan 
Estimate from a larger creditor for one loan would not be able to 
easily compare its terms to a loan disclosed in a different format from 
a small creditor exempt from this final rule that would otherwise meet 
the definition of ``creditor'' under Regulation Z. The Bureau is 
concerned that this result would be inconsistent with the aims of Dodd-
Frank Act section 1032(a), which authorizes the Bureau to prescribe 
rules to ensure effective disclosure.
    For the reasons discussed above in the section-by-section analysis 
of Sec.  1026.2(a)(17), the Bureau has concluded that it will not 
adjust the ``creditor'' threshold in Regulation Z. Accordingly, for the 
aforementioned reasons, the Bureau is finalizing the scope of the 
integrated disclosure requirements with respect to creditors as 
proposed and pursuant to the authority cited in the proposal.
Other Coverage Issues
    Some commenters requested that the Bureau clarify specific aspects 
of the proposal that relate to other sections of the rule. Trade 
association commenters representing banks requested clarification on 
how the rule would apply to trusts. One such trade association 
commenter observed that proposed comments 3(a)-9 and -10 specifically 
addressed trusts for tax or estate planning purposes. The commenter 
requested that the Bureau clarify how a trust's revocability would 
affect coverage. Another trade association commenter representing banks 
requested clarification regarding to whom the integrated disclosures 
and notice of the right of rescission must be provided in the case of 
certain inter vivos revocable trusts. Commenters also requested that 
Bureau address coverage with respect to certain housing assistance loan 
programs, which are currently exempted from Regulation X. See 12 CFR 
1024.2(b). One trade association commenter representing banks 
recommended that creditors should be given the option of either 
providing the integrated disclosures or the Sec.  1026.18 disclosures 
for housing assistance loan programs covered by the rule. The Bureau 
has addressed these comments in the section-by-section analysis of 
Sec.  1026.3 above.
    A trade association representing the timeshare industry commented 
regarding the Bureau's proposed expansion of the scope of certain 
disclosure requirements added to TILA by title XIV of the Dodd-Frank 
Act for ``residential mortgage loans'' (which, as noted above, is 
defined in section 1401 of the Dodd-Frank Act to exclude an extension 
of credit secured by a consumer's interest in a timeshare plan) to 
apply to transactions secured by a consumer's interest in a timeshare 
plan. Specifically, the Bureau proposed to include in the Closing 
Disclosure the disclosure requirements under Dodd-Frank Act sections 
1402(a)(2) (requires disclosure of loan originator identifier), 1414(c) 
(requires disclosure of anti-deficiency protections), 1414(d) (requires 
disclosure of partial payment policy), and 1419 (requires disclosure of 
certain aggregate amounts and wholesale rate of funds, loan originator 
compensation, and total interest as a percentage of the principal 
amount of the loan), and require them to be included in the Closing 
Disclosure for transactions secured by a consumer's interest in a 
timeshare plan. The trade association stated that the Bureau should 
provide in the final rule a timeshare-specific version of the Closing 
Disclosure that does not include these disclosures, or expressly permit 
timeshare lenders to strike out these provisions of the disclosure.
    The final rule requires that these disclosures, as implemented by 
Sec. Sec.  1026.37 and 1026.38, be provided for transactions secured by 
a consumer's interest in a timeshare plan. The Bureau acknowledges that 
in this final rule it has determined to exclude from provision certain 
disclosures in the Closing Disclosure for other types of transactions, 
if such disclosure would provide inaccurate information with respect to 
that type of transaction. For example, for transactions not subject to 
15 U.S.C. 1639h or 1691(e), as implemented in Regulation Z or 
Regulation B (12 CFR part 1002), respectively, the final rule does not 
require provision of the appraisal disclosure under Sec.  
1026.37(m)(1). In addition, the final rule provides alternative formats 
for certain parts of the Closing Disclosure to aid consumer 
understanding of particular aspects of such transactions (for example, 
the Bureau provides for alternative Costs at Closing and Calculating 
Cash to Close tables for transactions without a seller to aid consumer 
understanding of the unique aspects of such transactions, as described 
in the section-by-section analysis of Sec.  1026.37(d) below).
    However, the Bureau believes the disclosures for ``residential 
mortgage loans'' noted above would not be inaccurate for transactions 
secured by a consumer's interest in a timeshare plan, and would be just 
as useful to consumers in transactions secured by the consumer's 
interest in a timeshare plan as in transactions secured by real 
property. In addition, the Bureau believes that there is a benefit to 
consumers from receiving Closing Disclosures in a standardized format 
even in different types of transactions, because they may become more 
familiar with the format, which may aid consumer understanding of the 
disclosure. Further, the Bureau believes it will facilitate compliance 
for industry to reduce the amount of variability and dynamic aspects of 
the Closing Disclosure to instances that are technically necessary or 
that will aid consumer understanding, rather than numerous distinct 
versions for different types of transactions or security interests.
    Accordingly, the Bureau, pursuant to its authority under TILA 
section 105(a) and Dodd-Frank Act section 1032(a), is applying these 
disclosure requirements under title XIV of the Dodd-Frank Act to 
extensions of credit secured by a consumer's interest in a timeshare 
plan. The Bureau believes that requiring these disclosures in such 
transactions furthers the purpose of TILA by promoting the informed use 
of credit. In addition, applying these disclosure requirements to 
transactions secured by a consumer's interest in a timeshare plan will 
ensure that the integrated disclosures will permit consumers of such 
transactions to understand the costs, benefits, and

[[Page 79798]]

risks associated with the transaction, consistent with Dodd-Frank Act 
section 1032(a).
Conclusion--Coverage of the Final Rule
    For the reasons discussed above, final Sec.  1026.19(e) and (f), 
discussed further below, requires that the integrated disclosures be 
provided for closed-end consumer credit transactions secured by real 
property, other than a reverse mortgage subject to Sec.  1026.33. Final 
Sec.  1026.19(g) requires provision of the special information booklet 
for closed-end consumer credit transactions secured by real property 
and states in Sec.  1026.19(g)(1)(iii)(C) that the requirement does not 
apply to reverse mortgages.
    Accordingly, 25-acre loans, construction-only loans, and vacant-
land loans are subject to the integrated disclosure and booklet 
requirements. Pursuant to final Sec.  1026.19(g)(1)(iii)(C), reverse 
mortgage transactions are not subject to the integrated disclosure or 
booklet requirements. Pursuant to final Sec.  1026.19(g)(1)(ii), HELOCs 
are not subject to the integrated disclosure requirements, but they are 
subject to the booklet requirements (though compliance is satisfied by 
providing an alternate brochure described in the final rule). Chattel-
dwelling loans are not subject to the integrated disclosure or booklet 
requirements. Reverse mortgages, open-end transactions secured by real 
property or a dwelling, and chattel-dwelling loans will remain subject 
to the existing disclosure requirements under Regulations X and Z, as 
applicable, until the Bureau adopts integrated disclosures specifically 
tailored to their distinct features. Finally, federally related 
mortgage loans extended by a person that is not a creditor, as defined 
in Regulation Z Sec.  1026.2(a)(17), are not subject to the integrated 
disclosure or booklet requirements for the reasons set forth above.
    The Bureau believes adjusting the application of the provisions of 
TILA and RESPA is within its general mandate under Dodd-Frank Act 
sections 1032(f), 1098, and 1100A to prescribe integrated disclosures, 
which requires that the Bureau reconcile differences in coverage 
between the two statutes. The Bureau also believes that this approach 
is expressly authorized by sections 4(a) of RESPA and 105(b) of TILA 
because both provisions direct the Bureau to prescribe disclosures that 
``may apply to a transaction that is subject to both or either 
provisions of law.'' (Emphasis added.) The Bureau believes those 
provisions authorize requiring the integrated disclosures for any 
transaction that is subject to either RESPA or TILA, and not only a 
transaction that is subject to both, precisely so that the Bureau has 
the flexibility necessary to reconcile those statutes' coverage 
differences for purposes of the integrated disclosure mandate.
    Furthermore, the Bureau believes that applying the integrated 
disclosures to closed-end consumer credit transactions secured by real 
property other than reverse mortgages will carry out the purposes of 
TILA and RESPA, consistent with TILA section 105(a) and RESPA section 
19(a), by promoting the informed use of credit and more effective 
advance disclosure of settlement costs, respectively. In addition, the 
scope will ensure that the integrated disclosure requirements are 
applied only in circumstances where they will permit consumers to 
understand the costs, benefits, and risks associated with the mortgage 
transaction, consistent with Dodd-Frank Act section 1032(a), and will 
improve consumer awareness and understanding of residential mortgage 
loans, consistent with Dodd-Frank Act section 1405(b).
    Finally, the Bureau exempts from these integrated disclosure 
requirements transactions otherwise covered by TILA, pursuant to TILA 
section 105(f). The Bureau has considered the factors in TILA section 
105(f) and has determined that an exemption is appropriate under that 
provision. Specifically, the Bureau believes that the exemption is 
appropriate for all affected borrowers, regardless of their other 
financial arrangements and financial sophistication and the importance 
of the loan to them. Similarly, the Bureau believes that the exemption 
is appropriate for all affected loans, regardless of the amount of the 
loan and whether the loan is secured by the principal residence of the 
consumer. Furthermore, the Bureau believes that, on balance, the 
exemption will simplify the credit process without undermining the goal 
of consumer protection or denying important benefits to consumers. 
Based on these considerations, the results of the Bureau's consumer 
testing, and the analysis discussed elsewhere in this final rule, the 
Bureau has determined that the exemptions are appropriate.
19(a) Reverse Mortgage Transactions Subject to RESPA
    As discussed above, the final rule narrows the scope of Sec.  
1026.19(a) so that all loans currently subject to Sec.  1026.19(a), 
other than reverse mortgages, are instead subject to Sec.  1026.19(e) 
and (f), and makes conforming changes to comment 19(a)(1)(i)-1. The 
final rule also makes technical revisions to proposed Sec.  
1026.19(a)(1)(i) to require that the creditor ``provide the consumer 
with'' (instead of ``make'') the required good faith estimate 
disclosures, for greater consistency with other language in Sec.  
1026.19(e) and (f). The final rule also makes technical revisions to 
comment 19(a)(1)(i)-1. Specifically, the final comment refers to Sec.  
1026.19(a) instead of ``this section.'' The final comment also further 
specifies the citation to the definition of ``Federally related 
mortgage loan'' in Regulation X. As proposed, the final rule makes 
conforming changes to Sec.  1026.19(a)(1)(ii), deletes Sec.  
1026.19(a)(5), deletes comments 19(a)(5)(ii)-1 through -5, and deletes 
comments 19(a)(5)(iii)-1 and -2.
    Pursuant to its authority under section 105(a) of TILA, the final 
rule adopts Sec.  1026.19(a)(1)(i), substantially as proposed, to apply 
only to reverse mortgage transactions subject to both Sec.  1026.33 and 
RESPA. Final Sec.  1026.19(a), as amended, and its associated 
commentary are consistent with TILA's purpose in that it seeks to 
ensure meaningful disclosure of credit terms by requiring the 
integrated disclosures in this final rule only with respect to the 
loans for which they were designed: mortgage loans secured by real 
property other than reverse mortgages. The final rule and commentary 
also will be in the interest of consumers and the public because 
consumer understanding will be improved if consumers of reverse 
mortgages are not provided with inapplicable disclosures, consistent 
with Dodd-Frank Act section 1405(b).
Provision of the Loan Estimate and Closing Disclosure Under Sections 
19(e) and 19(f) Provision of Current Disclosures Under TILA and RESPA
    TILA. Section 128(b)(2)(A) of TILA provides that for an extension 
of credit secured by a consumer's dwelling, which also is subject to 
RESPA, good faith estimates of the disclosures in section 128(a) shall 
be made in accordance with regulations of the Bureau and shall be 
delivered or placed in the mail not later than three business days 
after the creditor receives the consumer's written application. 15 
U.S.C. 1638(b)(2)(A). Section 128(b)(2)(A) also requires these 
disclosures to be delivered at least seven business days before 
consummation. Regulation Z implements this provision in Sec.  
1026.19(a), which generally tracks the statute except that it does not 
apply to home equity lines of credit subject to

[[Page 79799]]

Sec.  1026.40 and mortgage transactions secured by a consumer's 
interest in a timeshare plan subject to Sec.  1026.19(a)(5).
    Section 128(b)(2)(A) and (D) of TILA states that, if the 
disclosures provided pursuant to section 128(b)(2)(A) contain an annual 
percentage rate that is no longer accurate, the creditor shall furnish 
an additional, corrected statement to the borrower not later than three 
business days before the date of consummation of the transaction. 15 
U.S.C. 1638(b)(2)(A), (D). Regulation Z implements TILA's requirement 
that the creditor deliver corrected disclosures in Sec.  
1026.19(a)(2)(ii).
    RESPA. Section 5(c) of RESPA states that lenders shall provide, 
within three days of receiving the consumer's application, a good faith 
estimate of the amount or range of charges for specific settlement 
services the borrower is likely to incur in connection with the 
settlement as prescribed by the Bureau.\192\ 12 U.S.C. 2604(c). Section 
3(3) of RESPA defines ``settlement services'' as:
---------------------------------------------------------------------------

    \192\ RESPA section 5(d) provides that ``[e]ach lender referred 
to in subsection (a) of this section shall provide the booklet 
described in such subsection to each person from whom it receives or 
for whom it prepares a written application to borrow money to 
finance the purchase of residential real estate. Such booklet shall 
be provided by delivering it or placing it in the mail not later 
than 3 business days after the lender receives the application, but 
no booklet need be provided if the lender denies the application for 
credit before the end of the 3-day period.'' 12 U.S.C. 2604(d). 
RESPA section 5(c) provides that ``[e]ach lender shall include with 
the booklet a good faith estimate of the amount or range of charges 
for specific settlement services the borrower is likely to incur in 
connection with the settlement as prescribed by the Bureau.'' 12 
U.S.C. 2604(c). Thus, the lender must deliver the RESPA GFE not 
later than three business days after receiving the consumer's 
application.

    [A]ny service provided in connection with a real estate 
settlement including, but not limited to, the following: title 
searches, title examinations, the provision of title certificates, 
title insurance, services rendered by an attorney, the preparation 
of documents, property surveys, the rendering of credit reports or 
appraisals, pest and fungus inspections, services rendered by a real 
estate agent or broker, the origination of a federally related 
mortgage loan (including, but not limited to, the taking of loan 
applications, loan processing, and the underwriting and funding of 
loans), and the handling of the processing, and closing or 
---------------------------------------------------------------------------
settlement.

12 U.S.C. 2602(3).
    Section 1024.7(a)(1) of Regulation X currently provides that, not 
later than three business days after a lender receives an application, 
or information sufficient to complete an application, the lender must 
provide the applicant with the RESPA GFE. In contrast to the TILA and 
RESPA good faith estimate requirements, which apply to creditors, the 
RESPA settlement statement requirement generally applies to settlement 
agents. Specifically, section 4 of RESPA provides that the settlement 
statement must be completed and made available for inspection by the 
borrower at or before settlement by the person conducting the 
settlement. 12 U.S.C. 2603(b). Section 4 of RESPA also provides that, 
upon the request of the borrower, the person who will conduct the 
settlement shall permit the borrower to inspect those items which are 
known to such person on the RESPA settlement statement during the 
business day immediately preceding the day of settlement. Id. These 
requirements are implemented in Regulation X Sec.  1024.10(a).
    The Dodd-Frank Act. Sections 1098 and 1100A of the Dodd-Frank Act 
amended RESPA and TILA to require an integrated disclosure that ``may 
apply to a transaction that is subject to both or either provisions of 
law.'' Accordingly, as discussed below, the final rule integrates the 
TILA and RESPA good faith estimate requirements in final Sec.  
1026.19(e), as discussed below. The final rule also integrates the 
final TILA disclosure requirements and the RESPA settlement statement 
requirements in final Sec.  1026.19(f), as discussed below. Finally, as 
appropriate, the final rule incorporates related statutory and 
regulatory requirements into Sec.  1026.19 and makes conforming 
amendments.
19(e) Mortgage Loans Secured by Real Property--Early Disclosures
19(e)(1) Provision of Disclosures
19(e)(1)(i) Creditor
    Proposed Sec.  1026.19(e)(1)(i) would have provided that in a 
closed-end consumer credit transaction secured by real property, other 
than a reverse mortgage subject to Sec.  1026.33, the creditor shall 
make good faith estimates of the disclosures listed in Sec.  1026.37. 
Proposed comment 19(e)(1)(i)-1 would have explained that Sec.  
1026.19(e)(1)(i) requires early disclosure of credit terms in closed-
end credit transactions that are secured by real property, other than 
reverse mortgages. It also would have explained that these disclosures 
must be provided in good faith, and that except as otherwise provided 
in Sec.  1026.19(e), a disclosure is in good faith if it is consistent 
with the best information reasonably available to the creditor at the 
time the disclosure is provided.
    Two national consumer advocacy group commenters asserted that the 
final rule should require the creditor to base disclosures on charges 
the creditor imposed on other consumers with similar loans, and to 
obtain pricing information from third-party vendors with which the 
creditor frequently works. The Bureau believes the tolerance rules in 
Sec.  1026.19(e)(3) will incentivize creditors to perform the 
activities suggested by these commenters. Moreover, as a general 
matter, the Bureau believes that the general good faith requirement set 
forth in final Sec.  1026.19(e)(1)(i) will strike the appropriate 
balance between consumer protection and reducing undue compliance 
burden. As final comment 19(e)(1)(i)-1 clarifies, except as otherwise 
provided in Sec.  1026.19(e), a disclosure is in good faith if it is 
consistent with the standard set forth in Sec.  1026.17(c)(2)(i). 
Section 1026.17(c)(2)(i) provides that disclosures may be estimated 
based on the best information reasonably available when exact 
information is not reasonably available to the creditor at the time the 
disclosures are made. The ``reasonably available'' standard requires 
that the creditor, acting in good faith, exercise due diligence in 
obtaining information. See comment 17(c)(2)(i)-1.
    The Bureau is adopting Sec.  1026.19(e)(1)(i) and comment 
19(e)(1)(i)-1 with revisions to enhance clarity. Additionally, for 
reasons discussed in the section-by-section analysis of Sec.  
1026.19(e)(3)(i), the Bureau has determined, based on comments received 
in response to that section requesting clarification regarding the 
definition of the term ``affiliate,'' to add new comment 19(e)-1 to 
explain that the term ``affiliate'' used in Sec.  1026.19(e) has the 
same meaning as in Sec.  1026.32(b)(5). The Bureau believes that 
because the term ``affiliate'' will be referenced in other provisions 
Sec.  1026.19(e), the new comment should be located in Sec.  1026.19(e) 
instead of Sec.  1026.19(e)(3).
19(e)(1)(ii) Mortgage Broker
    Currently, neither the disclosure requirements under TILA nor the 
disclosure requirements under RESPA expressly apply to mortgage 
brokers. The disclosure requirements of Regulation Z also do not apply 
to mortgage brokers. Section 1024.7(b) of Regulation X, however, 
currently permits mortgage brokers to deliver the RESPA GFE, provided 
that the mortgage broker otherwise complies with the relevant 
requirements of Regulation X, such as the RESPA GFE delivery 
requirements and tolerance rules, and that the creditor remains 
responsible for ensuring the mortgage broker's compliance. The Bureau 
proposed to carry this concept into the regulations

[[Page 79800]]

governing the integrated disclosures in recognition of the fact that 
permitting mortgage brokers to deliver the integrated disclosures could 
benefit consumers in some cases. The Bureau stated in the proposal that 
some consumers may have better relationships with their mortgage 
brokers than with their creditors, and the mortgage brokers may be 
better able to assist those consumers with understanding the RESPA GFE 
more effectively and efficiently.
    Accordingly, to preserve the flexibility in current Regulation X, 
the Bureau proposed Sec.  1026.19(e)(1)(ii) to permit the mortgage 
broker to provide the Loan Estimate, subject to certain limitations, 
pursuant to the Bureau's authority under TILA section 105(a) and, with 
respect to residential mortgage loans, Dodd-Frank Act section 1405(b). 
Proposed Sec.  1026.19(e)(1)(ii) would have provided that a mortgage 
broker may provide a consumer with the disclosures required under Sec.  
1026.19(e)(1)(i), provided that the mortgage broker acts as the 
creditor in every respect, including complying with all of the 
requirements of proposed Sec.  1026.19(e) and assuming all related 
responsibilities and obligations.
    The Bureau also proposed comments 19(e)(1)(ii)-1 through -4 to 
provide additional guidance regarding proposed Sec.  1026.19(e)(1)(ii). 
Proposed comment 19(e)(1)(ii)-1 would have explained that a mortgage 
broker may provide the disclosures required under Sec.  
1026.19(e)(1)(i) instead of the creditor. The proposed comment would 
have further explained that by assuming this responsibility, the 
mortgage broker becomes responsible for complying with all of the 
relevant requirements as if it were the creditor, meaning that 
``mortgage broker'' should be read in the place of ``creditor'' for all 
the relevant provisions of Sec.  1026.19(e), except where the context 
indicates otherwise. Proposed comment 19(e)(1)(ii)-1 would have also 
stated that the creditor and mortgage broker must effectively 
communicate to ensure timely and accurate compliance with the 
requirements of Sec.  1026.19(e).
    Proposed comment 19(e)(1)(ii)-2 would have provided further 
guidance on the mortgage broker's responsibilities if a mortgage broker 
issues any disclosure under Sec.  1026.19(e). The proposed comment 
provided an example clarifying that if the mortgage broker receives 
sufficient information to complete an application, the mortgage broker 
must issue the disclosures required under Sec.  1026.19(e)(1)(i) within 
three business days in accordance with Sec.  1026.19(e)(1)(iii). The 
proposed comment further provided that if the broker subsequently 
receives information sufficient to establish that a disclosure provided 
under Sec.  1026.19(e)(1)(i) must be reissued under Sec.  
1026.19(e)(3)(iv), then the mortgage broker is responsible for ensuring 
that a revised disclosure is provided.
    Proposed comment 19(e)(1)(ii)-3 would have discussed the creditor's 
responsibilities in the event that a mortgage broker provides 
disclosures under Sec.  1026.19(e). The proposed comment provided an 
example clarifying that the creditor must ensure that the mortgage 
broker provides the disclosures required under Sec.  1026.19(e) not 
later than three business days after the mortgage broker received 
information sufficient to constitute an application, as defined in 
Sec.  1026.2(a)(3)(ii). It would have also stated that the creditor 
does not satisfy the requirements of Sec.  1026.19(e) if it provides 
duplicative disclosures. The proposed comment further stated that a 
creditor does not meet its burden by issuing disclosures required under 
Sec.  1026.19(e) that mirror disclosures already issued by the mortgage 
broker for the purpose of demonstrating that the consumer received 
timely disclosures. The comment further stated that if the mortgage 
broker provides an erroneous disclosure, the creditor is responsible 
and may not issue a revised disclosure correcting the error. The 
proposed comment clarified that the creditor is expected to maintain 
communication with the mortgage broker to ensure that the mortgage 
broker is acting in place of the creditor. This proposed comment would 
have been consistent with guidance provided by HUD in the HUD RESPA 
FAQs pp. 8-10,  16, 26, 29 (``GFE--General''). 
Proposed comment 19(e)(1)(ii)-3 would have also clarified that 
disclosures provided by a mortgage broker in accordance with Sec.  
1026.19(e)(1)(ii) satisfy the creditor's obligation under Sec.  
1026.19(e)(1)(i).
    Proposed comment 19(e)(1)(ii)-4 would have explained when mortgage 
brokers must comply with Sec.  1026.19(e)(2)(ii), regarding the 
provision of preliminary written estimates specific to the consumer. 
The proposed comment would have provided the example that if a mortgage 
broker never provides disclosures required by Sec.  1026.19(e), the 
mortgage broker need not include the disclosure required by Sec.  
1026.19(e)(2)(ii) on written information provided to consumers.
    The Bureau recognized that there were potential concerns regarding 
the ability of mortgage brokers to provide the information required by 
the integrated Loan Estimate accurately and reliably and sought comment 
on those issues. For instance, the proposal noted that it is not clear 
that mortgage brokers have the ability to inform the consumer of 
certain required disclosures such as whether the creditor intends to 
service the consumer's loan, or whether the creditor will permit a 
person to assume the consumer's loan on the original terms. The 
proposal also sought comment on mortgage brokers' ability to estimate 
taxes and insurance, which were proposed to be required on the Loan 
Estimate but are not included on the current RESPA GFE, to satisfy the 
good faith standard that would have been required for such disclosures 
under proposed Sec.  1026.19(e)(3)(iii). The Bureau also recognized 
that mortgage brokers may not have the technology necessary to comply 
with the requirements under TILA regarding delivery of estimates, 
delivery of revised disclosures, and recordkeeping. The Bureau also 
solicited comment on the ability of creditors to coordinate their 
operations with mortgage brokers in a manner that provides the same or 
better information to consumers than if the creditor alone were 
permitted to provide the disclosures.
Comments
    The Bureau received a number of comments expressing concern that 
creditors would not be able to send revised estimates to correct 
mistakes made by mortgage brokers. The commenters included two GSE 
commenters and several industry trade association commenters. Industry 
trade association commenters representing banks and mortgage lenders 
asserted that it would be inappropriate to require the creditor to 
ensure that the mortgage broker's disclosures comply with Sec.  
1026.19(e) and to be bound by the terms of the Loan Estimate the 
mortgage broker provides to the consumer unless the creditor has 
authorized the mortgage broker to issue the Loan Estimate. 
Additionally, these commenters expressed concern that the proposed rule 
would not have required the broker to promptly provide information to 
the creditor for purposes of issuing the original Loan Estimate and the 
revised Loan Estimate.
    The commenters asserted that the final rule should: (1) Require the 
mortgage broker to make arrangements with creditors so that either the 
mortgage broker or at least one of the creditors with which the 
mortgage broker works issues the Loan Estimate within three business 
days after the mortgage broker receives an application;

[[Page 79801]]

or (2) require the mortgage broker to either issue the Loan Estimate 
within three business days after it receives the application or forward 
the application to the creditor, who would then have three business 
days from receipt of the application from the mortgage broker to issue 
the Loan Estimate. With respect to the revised Loan Estimate, the 
commenters asserted that if a mortgage broker receives information 
supporting the issuance of a revised Loan Estimate and provides it to 
the creditor, then the three-business-day redisclosure period proposed 
in Sec.  1026.19(e)(4) should not begin until the creditor has received 
and evaluated the information.
    A consumer commenter asserted that the Loan Estimate should always 
be provided by the creditor because permitting mortgage brokers to 
issue the Loan Estimate would add another party to the mortgage process 
and could cause consumer confusion. In contrast, a mortgage broker 
commenter asserted that the loan originator, not the creditor, should 
provide the Loan Estimate because the loan originator is the party 
working with the consumer to structure the terms of the mortgage loan. 
The commenter expressed concern that the consumer would be confused if 
a creditor were to send a separate Loan Estimate listing different 
costs for the same item that had been previously disclosed by a broker.
Final Rule
    The Bureau has considered the comments and is modifying the final 
rule to reflect more closely the current requirements under Regulation 
X that permit mortgage brokers to provide the RESPA GFE. The Bureau 
believes these modifications will preserve the ability of consumers to 
work with mortgage brokers with whom they have a relationship and 
ensure that consumers will receive the Loan Estimate in a timely 
manner, thus mirroring current Regulation X, while providing clarity 
that will facilitate compliance and address commenters' concerns. In 
response to the concern that the proposed rule does not require 
mortgage brokers to issue a Loan Estimate after the mortgage broker 
receives a consumer's application for a mortgage loan for which a Loan 
Estimate must be provided within three days of receipt, Sec.  
1026.19(e)(1)(ii)(A) provides that if a mortgage broker receives a 
consumer's application, either the creditor or the mortgage broker 
shall provide a consumer with the Loan Estimate within three business 
days of receipt. This requirement is substantially similar to the 
requirement on mortgage brokers to provide the RESPA GFE in Sec.  
1024.7(b), and thus, the Bureau believes that it will facilitate 
compliance.
    The Bureau. however, declines to adopt some industry commenters' 
suggestion that for creditors that receive consumer applications from 
mortgage brokers, the three-business-day period should not begin until 
such creditors receive consumer applications from mortgage brokers. The 
Bureau believes that making such a distinction would disadvantage 
consumers who work with mortgage brokers because compared to consumers 
who submit mortgage applications directly to creditors, consumers who 
submit mortgage applications to mortgage brokers would wait longer to 
receive a Loan Estimate. Additionally, the Bureau believes that 
treating creditors that receive applications directly from the consumer 
differently from creditors that receive consumer applications from 
mortgage brokers would disadvantage creditors that have direct 
relationships with consumers because they would have less time to 
provide the Loan Estimate.
    Section 1026.19(e)(1)(ii)(A) also provides that if the mortgage 
broker provides the Loan Estimate, the mortgage broker shall comply 
with all relevant requirements of Sec.  1026.19(e). This means that the 
mortgage broker shall comply with all applicable requirements of Sec.  
1026.19(e) as if it were the creditor. In this respect, Sec.  
1026.19(e)(1)(ii)(A) mirrors Regulation X. As noted above, Sec.  
1024.7(b) of Regulation X currently requires mortgage brokers who 
provide the RESPA GFE to comply with all the relevant provisions of 
Regulation X such as the RESPA GFE delivery requirements and the 
tolerance rules.
    Further reflecting the current rule in Regulation X, Sec.  
1026.19(e)(1)(ii)(A) provides that the creditor shall ensure that the 
Loan Estimate is provided in accordance with all requirements of Sec.  
1026.19(e). Under current Sec.  1024.7(b), the lender is responsible 
for ensuring that the RESPA GFE has been provided, and that obligation 
is not contingent on whether the creditor has authorized the mortgage 
broker to provide the RESPA GFE. Accordingly, the Bureau is not 
persuaded by the arguments of some commenters that it is inappropriate 
to require the creditor to ensure that a mortgage broker-provided Loan 
Estimate complies with Sec.  1026.19(e) unless the creditor has 
authorized the mortgage broker to provide the Loan Estimate. Section 
1026.19(e)(1)(ii)(A) further provides that disclosures provided by a 
mortgage broker in accordance with the requirements of Sec.  1026.19(e) 
satisfy the creditor's obligation under Sec.  1026.19(e). This aspect 
of Sec.  1026.19(e)(1)(ii)(A) substantially reflects current Sec.  
1024.7(b), which provides that if the mortgage broker has provided a 
RESPA GFE, the lender is not required to provide an additional RESPA 
GFE.
    Final Sec.  1026.19(e)(1)(ii)(B) further provides that if a 
mortgage broker issues any disclosure under Sec.  1026.19(e), the 
mortgage broker must also comply with the record retention requirements 
of Sec.  1026.25(c) that apply to the Loan Estimate. This provision was 
set forth in proposed comment 19(e)(1)(ii)-3, but the Bureau is 
incorporating it in the text of final Sec.  1026.19(e)(1)(ii) to 
facilitate compliance by providing greater clarity regarding a mortgage 
broker's responsibilities if it provides the Loan Estimate. 
Additionally, the record keeping requirement in Sec.  
1026.19(e)(1)(ii)(B) largely reflects the current rule in Regulation X, 
Sec.  1024.7(f), which requires a mortgage broker to retain 
documentation of any reasons for providing a revised RESPA GFE for at 
least three years after settlement.
    The Bureau does not believe that permitting mortgage brokers to 
provide the Loan Estimate will cause consumer confusion, as suggested 
by some commenters. As discussed above, Regulation X currently permits 
mortgage brokers to provide the RESPA GFE. The Bureau is not aware of 
any evidence that the current practice has led to any consumer 
confusion. The Bureau also believes that generally preserving this 
aspect of current regulation promotes the informed use of credit, and 
is thus consistent with the statutory purposes of TILA. In addition, 
some of the comments suggest that the presence and use of mortgage 
brokers is an aspect of the origination process that consumers are 
generally familiar with. Further, because the Bureau has made a number 
of revisions to Sec.  1026.19(e)(1)(ii) so that the final rule more 
closely resembles current Regulation X, the Bureau believes that 
creditors will continue to use mortgage brokers in the origination 
process.
    The final rule does not permit the creditor to issue a separate 
Loan Estimate or revised disclosures to correct a mortgage broker's 
error. In this respect, the final rule reflects guidance provided by 
HUD in the HUD RESPA FAQs pp. 8-10, 16, 26, 29 
(``GFE--General''). Additionally, the final rule permits either the 
creditor or the mortgage broker to provide revised Loan Estimates based 
on any of the six legitimate reasons for revisions, described in 
greater detail below in the section-by-section analysis of Sec.  
1026.19(e)(3)(iv). The final rule also does not require mortgage 
brokers to get

[[Page 79802]]

authorization from creditors before providing Loan Estimates. Further, 
creditors are bound by the terms of the Loan Estimate, subject to one 
of the six legitimate reasons for revisions such as changed 
circumstances or borrower-requested changes, whether or not the 
creditor has authorized the mortgage broker to provide the Loan 
Estimate. In these respects, the final rule reflects current Regulation 
X, because under current Regulation X, creditors are bound to the terms 
of the RESPA GFE provided to the consumer by the mortgage broker unless 
one of the six legitimate reasons for revisions apply (e.g., borrower-
requested change, a changed circumstance). Therefore, the Bureau is not 
persuaded that creditors should only be bound by the terms of a 
mortgage broker-provided Loan Estimate if the creditor has authorized 
the mortgage broker to provide the Loan Estimate. Lastly, the final 
rule does not impose explicit requirements on mortgage brokers with 
respect to providing application information to the creditor and to 
establishing additional conditions that mortgage brokers must satisfy 
before they issue a Loan Estimate. The Bureau believes that the 
creditor is in the best position to set these requirements 
contractually.
    Finally, the final rule permits both creditors and mortgage brokers 
to provide the Loan Estimate. In this respect, the final rule is 
consistent with current Regulation X in that current Regulation X 
permits both lenders and mortgage brokers to provide the RESPA GFE. The 
Bureau is not persuaded by the assertion of a mortgage broker commenter 
that creditors should be prohibited from providing the Loan Estimate. 
In addition, TILA applies its disclosure requirements to creditors, as 
does Regulation Z. A rule that prohibited creditors from delivering the 
Loan Estimate would be incongruous with these longstanding disclosure 
requirements and statutory requirements.
    The Bureau is adopting proposed comment 19(e)(1)(ii)-1 with 
modifications. The proposed comment would have explained the 
requirements of proposed Sec.  1026.19(e)(1)(ii). Comment 19(e)(1)(ii)-
1. explains the requirements of Sec.  1026.19(e)(1)(ii), as applied to 
mortgage brokers, and reflects the changes the Bureau is making 
proposed Sec.  1026.19(e)(1)(ii). Comment 19(e)(1)(ii)-1 also 
incorporates the relevant provisions of proposed comment 19(e)(1)(ii)-
2, which would have explained the requirements of proposed Sec.  
1026.19(e)(1)(ii), as applied to mortgage brokers.
    The Bureau is also adding to final comment 19(e)(1)(ii)-1 to 
clarify the meaning of ``mortgage broker'' for purposes of Sec.  
1026.19(e)(1)(ii). Comment 19(e)(1)(ii)-1 explains that the term 
``mortgage broker,'' as used in Sec.  1026.19(e)(1)(ii), has the same 
meaning as in Sec.  1026.36(a)(2), and references comment 36(a)(1)-2. 
Section 1026.36(a)(2) provides that a mortgage broker is any loan 
originator that is not an employee of the creditor, and comment 
36(a)(1)-2 explains that ``mortgage broker'' can include companies that 
engage in loan originator activities described in Sec.  1026.36(a) and 
their employees. The Bureau believes clarifying the meaning of 
``mortgage broker'' will facilitate compliance with the final rule. The 
definition of ``mortgage broker,'' as used in Sec.  1026.36(a)(2), is 
appropriate for Sec.  1026.19(e)(1)(ii) because Sec.  1026.36 applies 
to mortgage loan transactions that will be covered by Sec.  1026.19(e) 
and because Sec.  1026.36(a) provides a concise list of activities that 
are considered ``loan originator'' activities.
    Proposed comment 19(e)(1)(ii)-3, which would have explained 
creditors' responsibilities under proposed Sec.  1026.19(e)(1)(i), is 
adopted substantially as proposed as comment 19(e)(1)(ii)-2. The 
modifications reflect the changes to proposed Sec.  1026.19(e)(1)(ii). 
The Bureau is not adopting proposed comment 19(e)(1)(ii)-4, which would 
have clarified the responsibility of mortgage brokers to help consumer 
distinguish between pre-application worksheets and the Loan Estimate. 
The proposed comment would have explained that mortgage brokers would 
only have to provide the disclaimer set forth in Sec.  
1026.19(e)(2)(ii) if the mortgage broker provides the Loan Estimate. 
But as discussed below, Sec.  1026.19(e)(2)(ii) provides that any 
person that provides preliminary worksheets to consumers must provide 
the disclaimer. Accordingly, adopting the proposed comment would have 
been incongruous with Sec.  1026.19(e)(2)(ii). The Bureau adopts Sec.  
1026.19(e)(1)(ii) and comments 19(e)(1)(ii)-1 and -2 pursuant to its 
authority under TILA section 105(a), RESPA section 19(a), Dodd-Frank 
Act section 1032(a), and, for residential mortgage loans, Dodd-Frank 
Act section 1405(b).
19(e)(1)(iii) Timing
    The Bureau proposed to apply to the Loan Estimate the timing 
requirements in current Regulation Z that apply to the early TILA 
disclosure. 12 CFR 1026.19(a)(1)(i) and (a)(2)(i). These provisions 
implement TILA section 128(b)(2)(A). Section 128(b)(2)(A) of TILA 
provides that good faith estimates of the disclosures under section 
128(a) shall be delivered or placed in the mail not later than three 
business days after the creditor receives the consumer's written 
application. 15 U.S.C. 1638(b)(2)(A). Section 128(b)(2)(A) also 
requires these disclosures to be delivered at least seven business days 
before consummation. RESPA requires lenders to provide the RESPA GFE 
not later than three business days after receiving the consumer's 
application, but does not mandate that the disclosures be provided in 
any particular number of days before consummation. This requirement is 
implemented in Regulation X, Sec.  1024.7(a)(2).
    The proposal would have applied both timing requirements under TILA 
to the integrated disclosures. Although RESPA does not contain a seven-
business-day waiting period, the Bureau concluded that such a waiting 
period is consistent with the purposes of RESPA and that adopting it 
for the integrated disclosures would best effectuate the purposes of 
both TILA and RESPA by enabling the informed use of credit and ensuring 
effective advance disclosure of settlement charges. Accordingly, 
pursuant to its authority under TILA section 105(a), RESPA section 
19(a), Dodd-Frank Act section 1032(a), and, for residential mortgage 
loans, section 1405(b) of the Dodd-Frank Act, the Bureau proposed Sec.  
1026.19(e)(1)(iii).
    Proposed Sec.  1026.19(e)(1)(iii) would have required that the 
creditor deliver the disclosures required by Sec.  1026.19(e)(1)(i) not 
later than the third business day after the creditor receives the 
consumer's application, as defined in proposed Sec.  1026.2(a)(3)(ii), 
and that the creditor deliver these disclosures not later than the 
seventh business day before consummation of the transaction. The Bureau 
also proposed comments 19(e)(1)(iii)-1 through -3 to provide additional 
guidance regarding proposed Sec.  1026.19(e)(1)(iii). Proposed comment 
19(e)(1)(iii)-1 would have further clarified this provision and would 
have provided illustrative examples. Proposed comment 19(e)(1)(iii)-2 
would have discussed the waiting period, clarifying that the seven-
business-day waiting period begins when the creditor delivers the 
disclosures or places them in the mail, not when the consumer receives 
or is presumed to have received the disclosures, and would have 
provided an illustrative example.
    Proposed comment 19(e)(1)(iii)-3 would have clarified issues 
related to denied or withdrawn applications, explaining that under 
Sec.  1026.19(e)(1)(iii)

[[Page 79803]]

the creditor could determine within the three-business-day period that 
the application will not or cannot be approved on the terms requested, 
such as when a consumer's credit score is lower than the minimum score 
required for the terms the consumer applied for, or the consumer 
applies for a type or amount of credit that the creditor does not 
offer. The proposed comment would have clarified that in that case, or 
if the consumer withdraws the application within the three-business-day 
period, the creditor would not need to make the disclosures required 
under Sec.  1026.19(e)(1)(i). The proposed comment would have also 
clarified that if the creditor failed to provide early disclosures and 
the transaction is later consummated on the terms originally applied 
for, then the creditor would have violated Sec.  1026.19(e)(1)(i). The 
proposed comment would have further clarified that if, however, the 
consumer amended the application because of the creditor's 
unwillingness to approve it on the terms originally applied for, no 
violation occurs for not providing disclosures based on those original 
terms. The proposed comment would have stated that the amended 
application would be a new application subject to Sec.  
1026.19(e)(1)(i).
Comments
    The Bureau received comments from industry commenters and consumer 
advocacy groups. Two national consumer advocacy group commenters 
asserted that the Bureau should add a new requirement that applies the 
same timing requirement that applies to issuance of the Loan Estimate 
to issuance of notices concerning application denials. The commenters 
expressed concern that if the proposed timing requirements do not apply 
to denial notices, creditors can evade liability after failing to 
provide a Loan Estimate by simply claiming that they had denied the 
consumer's application and were excused from sending the Loan Estimate. 
The commenters also asserted that consumers will benefit from receiving 
a denial notification in the same timeframe in which the creditor is 
required to deliver the Loan Estimate because the requirement will 
ensure that consumers understand the reason that they have not received 
the Loan Estimate that they have requested while there is still a 
chance to correct errors on their credit report and apply elsewhere. 
The commenters further asserted that the disclosure for the denial 
should match requirements established by ECOA and FCRA.
    In contrast, industry trade associations representing banks and 
mortgage lenders asserted that the Loan Estimate should only be 
required after the consumer indicates an intent to proceed with the 
application, preferably after 30 days of the consumer making such an 
indication. The commenters advocated for the suggestion as the best way 
to resolve the creditor's need for redisclosure without leading to 
excessive redisclosure. A large bank commenter asserted that the 
proposal is not clear with respect to whether the creditor is required 
to place the Loan Estimate in the mail within three business days of 
receiving a consumer's application or whether the creditor must ensure 
that the consumer receives the Loan Estimate no more than three 
business days after the creditor's receipt of the application. The 
commenter stated that it preferred the first interpretation.
    Another large bank commenter sought clarification for purposes of 
Sec.  1026.19(e)(1)(iii) with respect to treatment of applications 
involving multiple mortgage applicants and in particular which joint 
applicant the Bureau considers to be the person primarily liable under 
the mortgage loan for the purpose of delivering the Loan Estimate and 
how the creditor should determine who should receive the Loan Estimate 
in the case of multiple applicants with similar credit qualifying 
profiles. The large bank commenter also sought clarification on whether 
the creditor may provide a cover letter along with the Loan Estimate 
outlining the next steps in the application process. A community bank 
commenter requested that the Bureau conform the requirements of 
Regulation X to Regulation Z so that in the case of multiple 
applicants, the RESPA GFE would only have to be provided to one of the 
borrowers if the transaction involves more than one borrower.
    An industry trade association representing developers of timeshares 
and similar fractional interest real estate products asserted that 
timeshare transactions should be exempted from the requirement in 
proposed Sec.  1026.19(e)(1)(iii) that the Loan Estimate must be 
received by the consumer no later than seven business days before 
consummation because TILA exempts such transactions from the statutory 
seven-day waiting requirement, as does current Regulation Z, Sec.  
1026.19(a)(5), and because timeshare transactions are typically 
consummated on the same or very next day after the creditor receives 
the application. Further, because timeshare transactions are typically 
consummated on the same or very next day after the creditor receives 
the application, the commenter asserted that the Bureau should clarify 
that a timeshare creditor should be exempted from providing the Loan 
Estimate altogether if the transaction is consummated on the same day 
or the next day following the receipt of a consumer's application. The 
commenter asserted that absent such an exemption, consumers may be 
confused by receiving seemingly duplicative disclosures.
Final Rule
    The Bureau has considered the comments, and continues to believe 
that it is appropriate to apply the statutory timing requirements under 
TILA to the integrated disclosures. While not expressly required by 
RESPA, the Bureau believes the seven-business-day requirement is 
consistent with RESPA's underlying purposes for the reasons stated in 
the proposal, described above. The Bureau therefore is adopting Sec.  
1026.19(e)(1)(iii) substantially as proposed.
    The Bureau does not believe that creditors should only be required 
to provide the Loan Estimate after the consumer indicates an intent to 
proceed. Indeed, such an approach would be fundamentally inconsistent 
with the plain language of both statutes and with the basic purpose of 
early disclosures. The Loan Estimate contains, among other things, 
important information about the loan terms and a reliable estimate of 
settlement costs that is helpful to the consumer in deciding whether to 
proceed with the transaction and to evaluate and compare financing 
options. Accordingly, the Bureau believes that the Loan Estimate must 
be provided to the consumer before the consumer indicates an intent to 
proceed.
    In response to comments, the Bureau has modified the final rule 
text and commentary so that it is clear that the timing requirement set 
forth in Sec.  1026.19(e)(1)(iii) imposes on a creditor the obligation 
to deliver or place the Loan Estimate in the mail within three business 
days of receiving a consumer's application, instead of imposing on the 
creditor the obligation to ensure that the consumer receives the Loan 
Estimate within three business days from the creditor's receipt of the 
application. The Bureau notes that Sec.  1026.19(e)(1)(iv) sets forth 
the rule regarding when a consumer is considered to have received the 
Loan Estimate if it is not provided to the consumer in person.
    Additionally, comment 17(d)-2 in this final rule provides guidance 
with respect to the issue of determining to which consumer the creditor 
must provide the Loan Estimate in situations

[[Page 79804]]

where there are two or more consumers. The comment explains that where 
two consumers are joint obligors with primary liability on an 
obligation, the Loan Estimate may be provided to any consumer with 
primary liability on the obligation. Comment 17(d)(2) also provides 
guidance on distinguishing a consumer who is primarily liable on an 
obligation from a consumer who is merely a surety or guarantor.
    With respect to whether a creditor may provide a cover letter 
together with the Loan Estimate, the Bureau understands that this is a 
common practice, and this final rule permits the creditor to provide 
the Loan Estimate with other documents or disclosures, such as 
disclosures required by State or other applicable law in accordance 
with the requirements of Sec.  1026.37(o). With respect to the argument 
that the Bureau should conform the requirements of Regulation X to 
Regulation Z so that in the case of multiple borrowers, the RESPA GFE 
would only have to be provided to one of the borrowers, the comment is 
addressed above in the section-by-section analysis of Regulation X, 
appendix C.
    The Bureau notes that the comment advocating for requiring 
creditors to provide application denial notices within the same three 
business days that are required for the Loan Estimate is outside the 
scope of the proposal. The Bureau acknowledges that such a requirement 
may provide some benefit to some borrowers, but would also increase 
burden as to the timing of existing notification requirements under 
other regulations. Additionally, comment 19(e)(1)(iii)-3, which the 
Bureau is adopting without change, explains that if the creditor fails 
to provide the early disclosures and the transaction is later 
consummated on the terms originally applied for, then the creditor does 
not comply with Sec.  1026.19(e)(1)(i). Accordingly, the Bureau does 
not believe that creditors can evade liability by claiming they denied 
the consumer's application and were excused from sending the Loan 
Estimate if the creditor and the consumer later consummate the 
transaction on the terms for which the consumer applied originally.
    The Bureau has considered the comments it received about the 
application of seven-business-day waiting period set forth in proposed 
Sec.  1026.19(e)(1)(iii) to timeshare transactions. The Bureau has 
modified the proposed rule to add Sec.  1026.19(e)(1)(iii)(C), which 
provides that a transaction secured by a consumer's interest in a 
``timeshare plan,'' as defined in 11 U.S.C. 101(53D) is not subject to 
the seven-business-day waiting period required by Sec.  
1026.19(e)(1)(iii)(B). The Bureau is persuaded that the unique nature 
of timeshare transactions would make it appropriate for the Bureau to 
retain the exemption in current Sec.  1026.19(a)(5) that provides the 
seven-business-day waiting period does not apply to timeshare 
transactions.
    The unique nature of timeshare transactions has also persuaded the 
Bureau that it would be appropriate to add new comment 19(f)(1)(ii)-4 
to clarify that if a consumer provides the creditor with an application 
for a timeshare transaction, and consummation occurs within three 
business days after the creditor's receipt of the consumer's 
application, then the creditor complies with Sec.  1026.19(e)(1)(iii) 
by providing the disclosures required under Sec.  1026.19(f)(1)(i) 
instead of the disclosures required by Sec.  1026.19(e)(1)(i). This 
interpretation essentially mirrors the current rule under Sec.  
1026.19(a)(5)(ii), which, with respect to a mortgage transaction 
subject to RESPA that is secured by a consumer's interest in a 
timeshare plan described in 11 U.S.C. 101(53D), requires the creditor 
to provide the early TILA disclosure within three business days after 
receipt of the consumer's application or before consummation, whichever 
is earlier. The Bureau believes that receiving a reliable estimate of 
the cost of the loan early is just as valuable to a consumer whose 
closed-end transaction is secured by a timeshare plan as a consumer 
whose closed-end transaction is secured by real property. However, 
given that timeshare transactions typically occur on the same day or 
the day after the creditor receives a consumer's application, the 
Bureau believes that it would be burdensome to creditors of such 
transactions to provide the Loan Estimate before consummation. But for 
timeshare transactions that will be consummated more than three 
business days after the receipt of an ``application,'' the Bureau 
believes that the receipt of the Loan Estimate within three business 
days of the creditor's receipt of the consumer's application will help 
consumers avoid the uninformed use of credit, which is a purpose of 
TILA. The Bureau also believes that this will be consistent with 
section 19(a) of RESPA because it achieves the purposes of RESPA by 
requiring more effective advance disclosure to consumers of settlement 
costs.
    Finally, for reasons discussed in greater detail above in the 
section-by-section analysis of Sec.  1026.2(a)(6), the Bureau is 
adopting the application of the general definition of ``business day'' 
to the Loan Estimate delivery requirement in Sec.  1026.19(e)(1)(iii). 
Accordingly, the Bureau is reorganizing Sec.  1026.19(e)(1)(iii) to 
reflect that the general definition of ``business day'' applies to the 
Loan Estimate delivery requirement, but that the specific definition of 
``business day'' applies to the seven-business-day waiting period. As 
adopted, Sec.  1026.19(e)(1)(iii)(A) provides that the creditor shall 
deliver the disclosures required under Sec.  1026.19(e)(1)(i) not later 
than the third business day after the creditor receives the consumer's 
application, as defined in Sec.  1026.2(a)(3). Section 
1026.19(e)(1)(iii)(B) provides that except as set forth in Sec.  
1026.19(e)(1)(iii)(C), the creditor shall deliver the disclosures 
required under Sec.  1026.19(e)(1)(i) not later than the seventh 
business day before consummation of the transaction. Lastly, Sec.  
1026.19(e)(1)(iii)(C), added for reasons discussed above, provides that 
for a transaction secured by a consumer's interest in a timeshare plan 
described in 11 U.S.C. 101(53D), Sec.  1026.19(e)(1)(iii)(B) does not 
apply. Comments 19(e)(1)(iii)-1 through -3 are adopted substantially as 
proposed. New comment 19(e)(1)(iii)-4 is adopted to explain that with 
respect to a transaction secured by a consumer's interest in a 
timeshare plan described in 11 U.S.C. 101(53D), where consummation 
occurs within three business days after a creditor's receipt of the 
consumer's application, a creditor complies with Sec.  
1026.19(e)(1)(iii) by providing the disclosures required under Sec.  
1026.19(f)(1)(i) instead of the disclosures required under Sec.  
1026.19(e)(1)(i). The Bureau adopts Sec.  1026.19(e)(1)(iii) and its 
commentary pursuant to its authority under TILA section 105(a), RESPA 
section 19(a), Dodd-Frank Act section 1032(a), and, for residential 
mortgage loans, Dodd-Frank Act section 1405(b).
19(e)(1)(iv) Receipt of Early Disclosures
    Section 128(b)(2)(E) of TILA, as amended by the MDIA, provides that 
if the disclosures are mailed to the consumer, the consumer is 
considered to have received them three business days after they are 
mailed. 15 U.S.C. 1638(b)(2)(E). RESPA provides that the RESPA GFE may 
be delivered either in person or by placing it in the mail. 12 U.S.C. 
2604(c) and (d). Regulation Z provides that if the disclosures are 
provided to the consumer by means other than delivery in person, the 
consumer is considered to have received the disclosures three business 
days after they are mailed or delivered. See

[[Page 79805]]

Sec.  1026.19(a)(1)(ii). Regulation X contains a similar provision. See 
Sec.  1024.7(a)(4).
    To establish a consistent standard for the integrated Loan 
Estimate, pursuant to its authority under TILA section 105(a), RESPA 
section 19(a), Dodd-Frank Act section 1032(a), and, for residential 
mortgage loans, section 1405(b) of the Dodd-Frank Act, the Bureau 
proposed Sec.  1026.19(e)(1)(iv). Proposed Sec.  1026.19(e)(1)(iv) 
would have provided that if the disclosures are provided to the 
consumer by means other than delivery in person, the consumer is 
presumed to have received the disclosures three business days after 
they are mailed or delivered to the address specified by the consumer.
    Proposed comment 19(e)(1)(iv)-1 would have explained that if any 
disclosures required under Sec.  1026.19(e)(1)(i) are not provided to 
the consumer in person, the consumer is presumed to have received the 
disclosures three business days after they are mailed or delivered. The 
proposed comment would have stated that the presumption may be rebutted 
by providing evidence that the consumer received the disclosures 
earlier than three business days. The proposed comment would have also 
contained illustrative examples. Proposed comment 19(e)(1)(iv)-2 would 
have clarified that the presumption established in Sec.  
1026.19(e)(1)(iv) applies to methods of electronic delivery, such as 
email. The proposed comment would have also explained that creditors 
using electronic delivery methods, such as email, must also comply with 
the requirements of the E-Sign Act. The proposed comment would have 
also contained illustrative examples.
Comments
    A number of industry commenters expressed concern that the proposal 
adjusted the regulatory language used in the current rule that 
addresses when a consumer is considered to have received the Loan 
Estimate if it was not delivered in person. As discussed above, current 
Sec.  1026.19(a)(1)(ii), which is analogous to proposed Sec.  
1026.19(e)(1)(iv), provides that if disclosures are provided to the 
consumer by means other than in-person delivery, the consumer is 
considered to have received the disclosure three business days after 
they are mailed or delivered. The Bureau's proposal would have replaced 
``considered'' with ``presumed.''
    The commenters asserted that the replacement would weaken the 
strong presumption of receipt under the current rule, which some of the 
commenters described as a safe harbor. Industry trade associations 
representing banks and mortgage lenders expressed concern that the 
proposal would have created a rebuttable presumption of receipt, which 
would create compliance burden because the creditor would not know that 
the consumer has not received a mailed disclosure, or that receipt has 
been delayed, until the consumer has informed the creditor. They 
asserted that creditors may respond by imposing additional conditions, 
such as requiring consumers to send back a confirmation of receipt, 
ensured to allow them to rebut consumer claims. The commenters argued 
that if these procedures extend the waiting period before closing, then 
such delays could harm consumers. Industry trade association commenters 
representing banks and mortgage lenders also observed that the proposed 
use of ``presumed'' in the proposed regulatory text deviated from the 
statutory language in TILA section 128(b)(2)(E). A large bank commenter 
requested that the Bureau make clear that the presumption cannot be 
rebutted with evidence that the disclosures were received more than 
three days after they were mailed, but most commenters expressed a 
preference for reverting to the current terminology (``considered'').
    Some commenters expressed concern about the proposal's treatment of 
electronic delivery methods. The SBA expressed concern that the 
industry stakeholders it met with to discuss the proposal did not 
believe that the rule recognized the uniqueness of these methods 
because the proposal would apply the same presumption of delivery to 
disclosures that are mailed to the consumer and to disclosures that are 
emailed to the consumer. The SBA encouraged the Bureau to adopt a final 
rule that recognizes instantaneous delivery methods and provide clear 
guidance on what forms of proof sufficiently demonstrate delivery. A 
credit union commenter asserted that it should be presumed that 
disclosures transmitted electronically are received by the consumer on 
the same day to better reflect the reality of how such transmittals 
work and to reduce potential inefficiencies associated with treating 
electronic delivery methods the same as sending the disclosure by mail.
    Another community bank commenter asserted that creditors should be 
able to rely on a consumer's request to receive the Loan Estimate 
electronically, and should not have to obtain prior consent that must 
meet the requirements of the E-Sign Act. The commenter asserted that 
electronic delivery is commonplace, and obtaining demonstrable consent 
can be difficult for creditors to achieve. If obtaining consent under 
the E-Sign Act were required, the commenter expressed concern that this 
would result in over-compliance: the creditor may send both a paper and 
an electronic copy of the Loan Estimate to the consumer. A different 
community bank commenter asserted that the Bureau must provide an 
objective definition of ``receipt.''
Final Rule
    The Bureau has considered the comments and has decided to conform 
Sec.  1026.19(e)(1)(iv) to the statutory language under MDIA in 
determining the date by which disclosures may be ``considered'' to have 
been received by the consumer. It appears that there would be 
implementation burden across the market associated with creditors 
trying to determine how to comply with a presumption of receipt 
standard rather than the standard that is in place currently. The 
Bureau also is persuaded that some of the compliance measures that 
creditors may adopt could cause unnecessary delays that harm consumers.
    The Bureau is not persuaded by the argument that the Bureau should 
adjust the final rule to reflect that disclosures provided by 
electronic delivery should be subject to a different standard. The 
Bureau believes that it would require more information regarding the 
many different forms of delivery methods available to creditors, 
including technical information regarding different forms of electronic 
delivery, before it issues a rule applying different standards than the 
standard under TILA section 128(b)(2)(E) to the early TILA disclosure. 
The Bureau notes that this point is also discussed in the section-by-
section analyses of Sec.  1026.19(f)(1)(ii) and (iii). The Bureau 
additionally believes that applying a consistent standard to all Loan 
Estimates that are not provided to the consumer in person helps to 
improve consumer understanding of the mortgage origination process and 
facilitate compliance.
    Finally, creditors are currently required to obtain consent that 
meets the requirements of the E-Sign Act with respect to the provision 
of the RESPA GFE and the early TILA disclosures in electronic form. See 
12 CFR 1024.23; 12 CFR 1026.17(a)(1). Accordingly, requiring creditors 
to obtain consent that meets the requirements of the E-Sign Act prior 
to providing the Loan Estimate in electronic form does not impose new 
burdens on creditors.
    The Bureau adopts Sec.  1026.19(e)(1)(iv) pursuant to its authority 
under TILA section 105(a), RESPA section 19(a),

[[Page 79806]]

Dodd-Frank Act section 1032(a), and, for residential mortgage loans, 
section 1405(b) of the Dodd-Frank Act. As finalized, Sec.  
1026.19(e)(1)(iv) provides that if the disclosures are provided to the 
consumer by means other than delivery in person, the consumer is 
considered to have received the disclosures three business days after 
they are delivered or placed in the mail. As discussed above, the 
Bureau is modifying proposed Sec.  1026.19(e)(1)(iv) to conform final 
Sec.  1026.19(e)(1)(iv) to the statutory language under MDIA. The 
Bureau is also modifying proposed Sec.  1026.19(e)(1)(iv) to harmonize 
the text of final Sec.  1026.19(e)(1)(iv) with the text of final Sec.  
1026.19(f)(1)(iii). Further, as discussed above in the section-by-
section analysis of Sec.  1026.19(e)(1)(iii), Sec.  1026.19(e)(1)(iv) 
sets forth when a consumer is considered to have received the Loan 
Estimate if it is not provided to the consumer in person. Accordingly, 
the Bureau is modifying the proposed heading to Sec.  1026.19(e)(1)(iv) 
to clarify that Sec.  1026.19(e)(1)(iv) addresses the receipt of the 
Loan Estimate.
    The Bureau is modifying proposed comments 19(e)(iv)-1 and -2 to 
reflect the fact that the Bureau is finalizing the timing currently 
used under TILA and Regulation Z. Comment 19(e)(1)(iv)-1 explains that 
Sec.  1026.19(e)(1)(iv) provides that, if any disclosures required 
under Sec.  1026.19(e)(1)(i) are not provided to the consumer in 
person, the consumer is considered to have received the disclosures 
three business days after they are mailed or delivered to the address 
specified by the consumer. The comment further explains that the 
creditor may, alternatively, rely on evidence that the consumer 
received the disclosures earlier than three business days and 
illustrates this with an example. Comment 19(e)(1)(iv)-2 explains that 
the three-business-day period provided in Sec.  1026.19(e)(1)(iv) 
applies to methods of electronic delivery, such as email, and 
illustrates the requirement with an example. The comment also explains 
that the creditor may, alternatively, rely on evidence that the 
consumer received the emailed disclosures earlier, and provides an 
illustrative example. The comment further explains that creditors using 
electronic delivery methods, such as email, must also comply with Sec.  
1026.37(o)(3)(iii) and illustrates this requirement with an example. As 
discussed in greater detail below in the section-by-section analysis of 
Sec.  1026.37(o), Sec.  1026.37(o)(3)(iii) requires a creditor to 
obtain the consumer's consent pursuant to the E-Sign Act if the 
creditor provides the disclosures required by Sec.  1026.19(e)(1)(i) in 
electronic form.
19(e)(1)(v) Consumer's Waiver of Waiting Period Before Consummation
    Section 128(b)(2)(F) of TILA provides that the consumer may waive 
or modify the timing requirements for disclosures to expedite 
consummation of a transaction, if the consumer determines that the 
extension of credit is needed to meet a bona fide personal financial 
emergency. Section 128(b)(2)(F) further provides that: (1) The term 
``bona fide personal financial emergency'' may be further defined in 
regulations issued by the Bureau; (2) the consumer must provide the 
creditor with a dated, written statement describing the emergency and 
specifically waiving or modifying the timing requirements, which bears 
the signature of all consumers entitled to receive the disclosures; and 
(3) the creditor must provide, at or before the time of waiver or 
modification, the final disclosures. 15 U.S.C. 1638(b)(2)(F). This 
provision is implemented in Sec.  1026.19(a)(3) of Regulation Z. 
Neither RESPA nor Regulation X contains a similar provision.
    The Bureau proposed to incorporate the current rule set forth in 
Sec.  1026.19(a)(3) in proposed Sec.  1026.19(e)(1)(v), which would 
have provided that the consumer has the ability to waive the proposed 
seven-business-day waiting period in Sec.  1026.19(e)(1)(iii)(B) for 
the Loan Estimate in the case of a ``bona fide personal financial 
emergency.'' The Bureau stated in the proposal that, although the 
Bureau understood that waivers based on a bona fide personal financial 
emergency were rare, this exception served an important purpose: 
consumers should be able to waive the protection afforded by the 
waiting period if, in the face of a financial emergency, the waiting 
period does more harm than good. Accordingly, pursuant to its authority 
under TILA section 105(a) and RESPA section 19(a) the Bureau proposed 
Sec.  1026.19(e)(1)(v). Proposed Sec.  1026.19(e)(1)(v) would have 
reflected the current rule, because it would have allowed a consumer to 
waive the seven-business-day waiting period that was proposed in Sec.  
1026.19(e)(1)(iii) in the event of a bona fide personal financial 
emergency. In addition, the Bureau requested comment on the nature of 
waivers based on bona fide personal financial emergencies. The Bureau 
also requested comment on whether the bona fide personal financial 
emergency exception is needed more in some contexts than in others 
(e.g., in refinance transactions or purchase money transactions).
    Proposed comment 19(e)(1)(v)-1 would have explained that a consumer 
may modify or waive the right to the seven-business-day waiting period 
required by Sec.  1026.19(e)(1)(iii) only after the creditor makes the 
disclosures required by Sec.  1026.19(e)(1)(i). The proposed comment 
would have clarified that the consumer must have a bona fide personal 
financial emergency that necessitates consummating the credit 
transaction before the end of the waiting period, and that whether 
these conditions are met would be determined by the individual facts 
and circumstances. The proposed comment would have explained that the 
imminent sale of the consumer's home at foreclosure, where the 
foreclosure sale will proceed unless loan proceeds are made available 
to the consumer during the waiting period, is one example of a bona 
fide personal financial emergency. The proposed comment would have also 
clarified that each consumer who is primarily liable on the legal 
obligation must sign the written statement for the waiver to be 
effective. Proposed comment 19(e)(1)(v)-2 would have provided 
illustrative timing examples.
Comments
    A number of industry commenters, including industry trade 
associations representing Federally-charted credit unions and credit 
unions generally, regional- and State-based credit union trade 
associations, a State bankers association, and a large bank, asserted 
that creditors are hesitant to use the current bona fide personal 
financial emergency exception because it has been interpreted too 
narrowly. Commenters recommended that the Bureau broaden the scope of 
the exception by expanding the list of examples illustrating the 
exception or allowing creditors to rely on what borrowers represent to 
the creditor to be a bona fide personal financial emergency.
Final Rule
    The Bureau has considered the comments, but is finalizing Sec.  
1026.19(e)(1)(v) substantially as proposed, with a change to reflect 
the revisions made to Sec.  1026.19(e)(1)(iii), which is referenced in 
Sec.  1026.19(e)(1)(v). The Bureau believes that the current exemption 
is intentionally narrow and is not persuaded that it should be 
expanded. For most consumers, a mortgage loan will be the most 
significant financial obligation of their lives. Accordingly,

[[Page 79807]]

the Bureau believes that the consumer must be given a meaningful 
opportunity to shop for a mortgage loan, compare the different 
financing options available, and negotiate for favorable terms. The 
Bureau believes the seven-business-day waiting period established by 
TILA section 128(b)(2)(F) is the minimum amount of time in which a 
consumer could meaningfully shop, compare, and negotiate the terms of 
the mortgage loan, and should only be waived in the most stringent of 
circumstances. The Bureau is adopting Sec.  1026.19(e)(1)(v) and 
comments 19(e)(1)(v)-1 and -2 substantially as proposed, pursuant to 
its authority under TILA section 105(a) and RESPA section 19(a).
19(e)(1)(vi) Shopping for Settlement Service Providers
    Neither TILA nor RESPA nor Regulation Z requires creditors to 
inform consumers about settlement service providers for whom the 
consumer may shop. However, Regulation X provides that where a creditor 
or mortgage broker permits a borrower to shop for third party 
settlement services, the creditor or broker must inform borrowers of 
that fact and provide them with a written list of settlement service 
providers at the time the RESPA GFE is provided on a separate sheet of 
paper. 12 CFR 1024 app. C. This requirement was intended to enable 
consumers to shop for settlement service providers, thereby enhancing 
market competition and lowering settlement service costs for consumers. 
The Bureau proposed to adopt the same basic requirements for purposes 
of the integrated disclosures in Sec.  1026.19(e)(1)(vi), agreeing with 
the conclusion that a written list of settlement service providers 
could benefit consumers by fostering settlement service shopping.
    As an initial matter, proposed Sec.  1026.19(e)(1)(vi)(A) would 
have provided that a creditor permits a consumer to shop for a 
settlement service if the creditor permits the consumer to select the 
provider of that service, subject to reasonable minimum requirements 
regarding the qualifications of the provider. Proposed comment 
19(e)(1)(vi)-1 would have provided examples of minimum requirements 
that are reasonable or unreasonable. This proposed comment would have 
also clarified that the requirements to provide lists of settlement 
service providers under Sec.  1026.19(e)(1)(vi)(B) and (C) do not apply 
if the creditor does not permit the consumer to shop.
    Proposed Sec.  1026.19(e)(1)(vi)(B) would have required that the 
creditor identify the services for which the consumer is permitted to 
shop in the Loan Estimate. Proposed comment 19(e)(1)(vi)-2 would have 
clarified that Sec.  1026.37(f)(3) contains the content and format 
requirements for this disclosure. Proposed Sec.  1026.19(e)(1)(vi)(C) 
would have provided that, if the creditor permits a consumer to shop 
for a settlement service, the creditor shall provide the consumer with 
a written list identifying available providers of that service and 
stating that the consumer may choose a different provider for that 
service. It would have also required that the list be provided 
separately from the Loan Estimate but in accordance with the timing 
requirements for that disclosure (i.e., within three business days 
after application). Proposed comment 19(e)(1)(vi)-3 would have 
explained that the settlement service providers identified on the 
written list must correspond to the settlement services for which the 
consumer may shop, as disclosed on the Loan Estimate pursuant to Sec.  
1026.37(f)(3). It would have also referred to the model list provided 
in form H-27 of appendix H to Regulation Z.
    Proposed comment 19(e)(1)(vi)-4 would have clarified that a 
creditor does not comply with the requirement in Sec.  
1026.19(e)(1)(vi)(C) to ``identify'' providers unless it provides 
sufficient information to allow the consumer to contact the provider, 
such as the name under which the provider does business and the 
provider's address and telephone number. It would have also clarified 
that a creditor does not comply with the availability requirement in 
Sec.  1026.19(e)(1)(vi)(C) if it provides a written list consisting of 
only settlement service providers that are no longer in business or 
that do not provide services where the consumer or property is located. 
The proposed comment would have further clarified that if the creditor 
determines that there is only one available settlement service 
provider, the creditor would only need to identify that provider on the 
written list of providers. The Bureau stated that the guidance 
regarding availability would be consistent with guidance provided by 
HUD in the HUD RESPA FAQs p. 15, 7 (``GFE--Written list of 
providers'').
    Proposed comment 19(e)(1)(vi)-5 would have referred to form H-27 of 
appendix H to Regulation Z for an example of a statement that the 
consumer may choose a provider that is not included on the written 
list. Proposed comment 19(e)(1)(vi)-6 would have clarified that the 
creditor may include a statement on the written list that the listing 
of a settlement service provider does not constitute an endorsement of 
that service provider. It would have further clarified that the 
creditor would also be permitted to identify on the written list 
providers of services for which the consumer is not permitted to shop, 
provided that the creditor expressly and clearly distinguishes those 
services from the services for which the consumer is permitted to shop, 
and that this could be accomplished by placing the services under 
different headings.
    Finally, proposed comment 19(e)(1)(vi)-7 would have explained how 
proposed Sec.  1026.19(e)(1)(vi) relates to the requirements of RESPA 
and Regulation X. The proposed comment would have explained that Sec.  
1026.19 does not prohibit creditors from including affiliates on the 
written list under Sec.  1026.19(e)(1)(vi), but that a creditor that 
includes affiliates on the written list would also have to comply with 
Sec.  1024.15 of Regulation X. The Bureau stated that this comment 
would be consistent with guidance provided by HUD in its RESPA FAQs p. 
16, 9 (``GFE--Written list of providers''). The proposed 
comment would have also explained that the written list is a 
``referral'' under Sec.  1024.14(f). The Bureau stated that this 
comment would be consistent with guidance provided by HUD in the HUD 
RESPA FAQs p. 14, 4 (``GFE--Written list of providers'').
    The Bureau solicited comment regarding whether the final rule 
should provide more detailed requirements for the written list of 
providers. The Bureau also solicited comment regarding whether the 
final rule should include additional guidance regarding the content and 
format of the written list of providers.
Comments
    A number of industry commenters provided comments on proposed Sec.  
1026.19(e)(1)(vi). Some of the commenters opposed the general 
requirement, while others sought clarifications. With respect to the 
general requirement, a large-bank industry trade association asserted 
that the proposal would be burdensome to comply with because the 
information on the written list of providers would require regular 
updating so that the list would only contain available settlement 
service providers and reflect the current fees that the providers 
charge for their services. A large bank commenter stated that it would 
be a large administrative burden for creditors to maintain current 
contact information of settlement service providers for various 
settlement service providers, particular information about street 
addresses. The same commenter also recommended the

[[Page 79808]]

Bureau to consider allowing creditors to provide the consumer with a 
dedicated toll-free number or Web site to receive information about 
settlement service providers, in lieu of providing the written list. 
The commenter asserted that allowing the creditor to provide a phone 
number instead of the written list would reduce paper disclosures and 
would allow large lenders to tailor recommendations based on the 
specific geographical area of the consumer. The commenter additionally 
stated that providing consumers with a provider list that contains 
contact information for the creditors may suggest to the consumer that 
the creditor endorses the provider, even if the lender has little 
knowledge of the provider's service.
    A mortgage broker commenter asserted that providing a list of 
settlement services that a borrower may shop for, rather than a list of 
providers of the services, would be a more appropriate requirement 
because it should not be a creditor's responsibility to provide a 
borrower with a list of providers. The commenter also expressed concern 
that the creditor would be subject to tolerance rules if the written 
list of providers must include more than one provider's contact 
information for a settlement service, but fee estimates are disclosed 
for only one provider, and the borrower chooses a different provider on 
the list for the settlement service. A title company commenter 
expressed concern that it may be difficult for a creditor to prepare a 
list identifying available providers if the consumer or the property is 
located in a geographical area with which it is unfamiliar. It further 
noted that it believed independent settlement service providers are 
concerned that consumers would only choose the settlement service 
providers disclosed on the list. Some commenters, including two State 
bar associations from states where an attorney is required to conduct 
real estate closings, asserted that the written lists may limit the 
right of consumers to select settlement agents.
    Industry trade associations representing mortgage brokers and banks 
asserted that the proposal would harm small settlement service 
providers. The commenters asserted that creditors would want to manage 
their liability risk unless they are relatively certain of a provider's 
availability to perform the service for which it was listed and of the 
fee the provider charges for the service. Accordingly, the commenters 
asserted that creditors' likely response would be listing a small 
number of very large providers that offer services over a wide area to 
reduce their compliance burden. Some commenters objected to the listing 
of hazard insurance providers on the written list. The commenters 
asserted that the final rule should not require creditors to list 
hazard insurance providers because consumers do not have difficulty 
finding such providers and the requirement may disadvantage small 
providers of hazard insurance because banks would want to manage the 
burden of monitoring their fees and availability by listing large 
providers.
    Industry reaction to whether additional guidance on the content and 
format of the proposed written list was mixed. A national provider of 
title insurance and settlement services stated that additional guidance 
regarding the content and format of the written list of providers is 
unnecessary. In contrast, a number of industry commenters sought 
guidance on various aspects of the proposal. An industry trade 
association representing credit unions generally stated that it 
supported the Bureau's proposal to include more detailed requirements 
for the written list of providers. Industry trade associations 
representing banks and mortgage lenders asked the Bureau to clarify 
whether the creditor must list more than one provider for a settlement 
service if more than one provider is available. They also asserted that 
if the creditor must list some minimum number of providers for a 
settlement service, then the rule must clarify what that minimum number 
is. The trade association commenters further asserted that there will 
be significant compliance burden for creditors to list more than one 
because the creditor must maintain multiple relationships with 
providers to track their fees and likely availability. The commenters 
additionally stated that the burden is difficult to justify because 
information about settlement service providers is readily available 
online.
    The trade group commenters asserted that the burden may be 
especially great on creditors that maintain lists of providers with 
whom they prefer to do business because in some cases, such lists 
contain multiple providers being listed for the same service. The 
commenters stated that they recommend that if the creditor lists 
providers that include providers in which they have a preferred client-
vendor relationship, the creditor should not be required to list all 
such providers because it would likely contain too much information. 
The commenters also expressed concern about compliance burden because 
creditors would have to monitor the prices charged by their preferred 
providers and the providers' availability. The commenters further 
stated that the compliance burden of having to provide the full list of 
preferred providers for a settlement service would force creditors to 
direct consumers to lender-required providers.
    The trade association commenters also requested clarification on 
how much flexibility creditors have when listing title services. The 
commenters stated that the HUD RESPA FAQs about the written list of 
providers state that title services may be subdivided into two 
categories: closing services and lender's title insurance and related 
services. The commenters stated that title service providers offer 
different title service packages, and accordingly, they asserted that 
the Bureau should provide additional flexibility to creditors if they 
list title services on the written list. The trade association 
commenters also asserted that the rule should clarify that disclosing 
an affiliate on the written list would not make the affiliate a 
required provider as long as the creditor lists unaffiliated providers. 
The commenters additionally sought clarification whether the written 
list of providers must be provided again if the creditor provides the 
consumer with a revised Loan Estimate.
    A State trade association representing bankers also sought 
clarification on how many providers for each settlement service must be 
listed. It additionally asserted that form H-27(B), which the Bureau 
proposed as a sample form of the written list of providers, made it 
unclear whether, with respect to a settlement service for which the 
creditor lists more than one service provider, the creditor must list 
the estimated fee that each listed service provider charges for that 
service, because although two providers are identified on form H-27(B) 
as providing survey services, the form only displays the fee of one of 
the service providers. The commenter also asserted that if a creditor 
lists multiple providers of the same service and the fees charged by 
those providers vary, then the creditor is likely to list the highest 
fee unless the creditor can disclose the fees as a range of fees. The 
commenter stated that listing the most expensive fee does not benefit 
consumers because they may not realize that the fees for a particular 
service vary by provider.
    A national association representing Federally-chartered credit 
unions sought clarification on whether the written list can be provided 
in the same transmittal as the Loan Estimate. If the creditor uses mail 
to send the Loan Estimate, the commenter asked if the list may be 
included in the same envelope on a separate piece of paper from the 
disclosures required by Sec.  1026.19(e)(1). If the creditor sends the 
Loan Estimate electronically, the commenter asked

[[Page 79809]]

whether the creditor may provide the written list on a separate page 
from the disclosures required by Sec.  1026.19(e)(1). A large bank 
commenter asked the Bureau to clarify whether a creditor could satisfy 
the requirement that the creditor must list service providers that 
perform the service where the consumer or property is located by 
listing vendor management companies.
    An industry trade association representing settlement and escrow 
agents stated that the Bureau should expand the scope of Sec.  
1026.19(e)(1)(vi) to prohibit creditors from imposing background checks 
or similar requirements on settlement and title service providers 
before the creditor agrees to use the provider's services if the 
providers are in good standing to conduct business in the applicable 
jurisdiction. The commenter referred to these requirements as vetting 
requirements. The commenter stated that some creditors are relying on a 
Bureau-issued supervisory bulletin, CFPB 2012-3 (Apr. 12, 2012), as a 
pretext to impose vetting requirements on independent settlement and 
escrow agents, even though the agents are in good standing in their 
State and are often members of State and industry trade associations. 
Similarly, the Bureau received comments from settlement and title 
agents that suggested that the Bureau adopt a final rule that would 
define the term ``third party provider'' and then expressly exempt 
settlement and title agents from the definition. The Bureau believes 
that it received these comments because a number of settlement and 
title agent commenters were also concerned about the above-referenced 
supervisory bulletin and notes that some commenters expressed the 
concern that the vetting requirements were included in the proposal.
Final Rule
    The Bureau has considered the comments and decided to finalize 
Sec.  1026.19(e)(1)(vi) largely as proposed. Because Sec.  
1026.19(e)(1)(vi) reflects the current requirements, the Bureau does 
not believe that creditors would be unduly burdened by the requirements 
in this final rule. The Bureau also believes that information asymmetry 
is pervasive in the mortgage origination process. Accordingly, the 
Bureau believes that if the creditor permits a consumer to shop for a 
settlement service, it is appropriate to require creditors to provide 
consumers with a written list that identifies available providers of 
that service. The Bureau recognizes that a creditor originating a loan 
in a geographical area with which it is unfamiliar may have less 
familiarity with the mortgage market in that area, but the Bureau 
believes that the creditor nonetheless has better access to information 
than the consumer about settlement service providers in the 
geographical area.
    The Bureau believes that providing consumers with a toll-free 
number or a Web site instead of a written list would be inefficient 
substitutes because they introduce an extra step into the shopping 
process. A consumer that receives a written list with the service 
provider's contact information could directly contact the service 
provider. Additionally, to comply with the current rule, creditors that 
permit shopping would already have to monitor the availability of 
settlement service providers and the fees charged by the providers, and 
thus they currently are ordinary business activities. Accordingly, the 
final rule should not impose additional burden.
    The Bureau also does not believe that it would be burdensome for 
the creditor to include a service provider's street address. Comment 
19(e)(1)(vi)-4 does not state that Sec.  1026.19(e)(1)(vi) requires the 
provision of addresses. Rather, it explains that to comply with the 
identification requirement in Sec.  1026.19(e)(1)(vi)(C), the creditor 
must provide sufficient information to allow the consumer to contact 
the service provider, and that a creditor that lists the provider's 
address, along with its telephone number and the name under which the 
provider conducts business, would have provided sufficient information. 
Accordingly, listing an available provider's street address is not 
required by Sec.  1026.19(e)(1)(iv)(C), but a creditor that does not 
list the street address must demonstrate that the information it 
provided is sufficient information that allows the consumer to contact 
the service provider.
    With respect to the argument that small settlement service 
providers may be harmed because a creditor's likely response to reduce 
compliance burden would be to list a small number of very large 
providers that offer services over a wide area, the Bureau believes 
that the creditor would not comply with the availability requirement in 
Sec.  1026.19(e)(1)(vi)(C) if the service provider listed does not 
provide services where the consumer or the property is located. But the 
Bureau understands that small, independent settlement service providers 
may be more likely to operate outside of large metropolitan areas than 
larger settlement service providers. Accordingly, creditors may have to 
list small, independent settlement service providers in some areas, 
rather than larger providers, to comply with Sec.  
1026.19(e)(1)(vi)(C). For additional reasons, the Bureau does not 
believe independent settlement service providers will be negatively 
impacted because of the inclusion of affiliate charges in the points 
and fees thresholds under the Bureau's ATR and HOEPA rulemakings. The 
Bureau believes that the motivation to avoid exceeding those points and 
fees thresholds may deter some creditors from using affiliated service 
providers for settlement services. Accordingly, the Bureau believes 
that they will be represented on the list because for a given 
settlement service, the creditor must list settlement service providers 
that provide services where the consumer or property is located.
    In response to the concern that that the written list of providers 
may suggest to the consumer that the creditor endorses the provider, 
the Bureau notes that comment 19(e)(1)(vi)-6 clarifies that the 
creditor may include a statement on the written list that the listing 
of a settlement service provider does not constitute an endorsement of 
that service provider. With respect to the assertion that the written 
list of providers may limit the right of consumers to select settlement 
agents, the final rule requires (consistent with the proposal) that if 
a creditor permits the consumer to shop for a settlement service, then 
the creditor must state on the written list that the consumer may 
choose a different provider for that service. This statement is 
illustrated on form H-27(A) of appendix H to Regulation Z in this final 
rule.
    Additional guidance. The Bureau has considered requests related to 
additional guidance and is finalizing the proposed rule and commentary 
with modifications to address questions raised by the commenters. With 
respect to requests for guidance that did not lead the Bureau to adjust 
the proposed rule and commentary, the Bureau believes that the 
adjustments were not needed because the final rule text and commentary 
are sufficiently clear.
    As noted above, some commenters expressed concern about how many 
available providers of a settlement service a creditor must list. The 
Bureau is adjusting final Sec.  1026.19(e)(1)(vi)(C) to provide that 
the creditor must identify at least one available provider for each 
settlement service for which the consumer is permitted to shop. The 
Bureau understands that this is consistent with the informal guidance 
provided by HUD with respect to the requirement to provide the written 
list under current Regulation X, and thus,

[[Page 79810]]

believes that this adjustment will facilitate compliance.
    With respect to the request that the Bureau provide creditors with 
additional flexibility with respect to the listing of title services, 
the Bureau notes that this final rule permits the creditor to provide a 
more detailed breakdown of title-related services than what is 
currently permitted under existing HUD RESPA FAQs. See comments 
37(f)(2)-3, -4, and 37(f)(3)-3. The Bureau also notes that form H-27(B) 
of appendix H to Regulation Z in this final rule contains a sample 
written list that illustrates the listing of title services on the 
written list. With respect to the request that the final rule should 
clarify that disclosing an affiliated service provider on the written 
list would not make the affiliated provider a required provider as long 
as the creditor lists unaffiliated providers, the Bureau declines. The 
Bureau does not believe that an affiliated provider is a required 
provider if the creditor lists the affiliated provider under a heading 
that clearly states that the consumer can select the provider or shop 
for different providers, and accordingly, does not believe 
clarification is necessary.
    On the question of listing hazard insurance providers on the 
written list of providers, hazard insurance would not have been among 
the services that the creditor would have been required to identify 
pursuant to Sec.  1026.37(f)(3). Therefore, hazard insurance providers 
do not need to be listed on the written list of providers. Comment 
19(e)(1)(vi)-2, which the Bureau is adopting as proposed, explains that 
the creditor should look to Sec.  1026.37(f)(3) for guidance on how the 
creditor must identify the services for which the consumer is permitted 
to shop. However, the Bureau has noted that passing references to 
homeowner's insurance in proposed comments 19(e)(1)(vi)-1 and -6 could 
have caused confusion on this point, so it has removed that language in 
the final commentary adopted in this final rule. With respect to 
questions about the creditor's obligation to disclose the fees of the 
settlement service providers the creditor lists on the written list of 
providers, the Bureau notes Sec.  1026.19(e)(1)(iv) does not require 
creditors to list the estimated fees of the service providers, although 
form H-27(A) of appendix H to Regulation Z adopted in this final rule 
does provide creditors the space to do so.
    Section 1026.37(f)(3), as adopted, requires the creditor to itemize 
on the Loan Estimate the estimated amount for each of the services for 
which a consumer can shop. Even if the creditor lists on the written 
list under Sec.  1026.19(e)(1)(vi)(C) more than one service provider 
for a settlement service that it permits the consumer to shop for, the 
creditor must itemize on the Loan Estimate only one estimated cost of 
that service for one of the service providers listed. This estimated 
cost would be the amount used for purposes of the good faith analysis 
under Sec.  1026.19(e)(3). However, nothing in the final rule prohibits 
a creditor from identifying the estimated fee of each service provider 
listed for a settlement service on the written list under Sec.  
1026.19(e)(1)(vi).
    With respect to the question of whether the creditor must provide 
the consumer with a second written list of providers whenever the 
creditor provides a revised Loan Estimate to the consumer pursuant to 
Sec.  1026.19(e)(4), the Bureau believes that Sec.  
1026.19(e)(1)(vi)(C), which the Bureau is adopting as proposed for 
reasons set forth in this section-by-section analysis, clearly explains 
that the creditor is required to provide the written list only once, in 
accordance with the timing requirement that applies to the delivery of 
the original Loan Estimate set forth in Sec.  1026.19(e)(1)(iii). With 
respect to the question of whether the creditor may provide the written 
list in the same transmittal as the Loan Estimate and whether the 
creditor must provide the list on a separate page from the disclosures 
required by Sec.  1026.19(e)(1)(i), the Bureau notes that Sec.  
1026.19(e)(vi)(C) requires the written list to be provided separately 
from the disclosures required under Sec.  1026.19(e)(1)(i). In 
addition, the requirements set forth in Sec.  1026.37(o)(1) applies 
whenever the creditor provides the Loan Estimate with any other 
documents or disclosures. That provision states that the Loan Estimate 
must be provided on separate pages that are segregated from other 
documents or disclosures. This final rule does not prohibit a creditor 
from providing the written list in the same transmittal as the Loan 
Estimate.
    With respect to the question of whether a creditor may comply with 
the requirements of Sec.  1026.19(e)(1)(vi)(C) by listing vendor 
management companies, the availability requirement in proposed Sec.  
1026.19(e)(1)(vi)(C) requires that an entity that a creditor lists on 
the written list of providers for a particular service be available to 
provide the service. A creditor that lists a vendor management company 
on the written list for a particular service would not comply with 
Sec.  1026.19(e)(1)(vi)(C) if the vendor management company cannot 
ensure that the service for which it is listed can be performed by its 
employees or contractors in the area where the consumer or property is 
located, because it would not be available for purposes of Sec.  
1026.19(e)(1)(iv)(C). Lastly, with respect to requests to adjust the 
proposal to prohibit creditors from imposing background checks and 
similar requirements on settlement, and title agents, the proposal 
would not have imposed on the creditor an obligation to impose vetting 
requirements on settlement agents, nor prohibited such vetting, nor 
sought comment on the issue.
    Accordingly, for the reasons stated above, the Bureau is adopting 
Sec.  1026.19(e)(1)(vi)(A) as proposed, and Sec.  1026.19(e)(1)(vi)(B) 
substantially as proposed, with revisions to enhance clarity. For the 
reasons discussed above, the Bureau is adjusting proposed Sec.  
1026.19(e)(1)(vi)(C) in response to comments received about how many 
service providers must a creditor identify on the written list for each 
settlement service for which a consumer is permitted to shop. As 
adopted, Sec.  1026.19(e)(1)(vi)(C) provides that if the consumer is 
permitted to shop for a settlement service, the creditor shall provide 
the consumer with a written list identifying available providers of 
that settlement service and stating that the consumer may choose a 
different provider for that service. It additionally provides that the 
creditor must identify a minimum of one available provider for each 
settlement service for which the consumer is permitted to shop. Section 
1026.19(e)(1)(vi)(C) further provides that the creditor shall provide 
this written list of settlement service providers separately from the 
disclosures required by Sec.  1026.19(e)(1)(i) but in accordance with 
the timing requirements in Sec.  1026.19(e)(1)(iii).
    Comments 19(e)(1)(vi)-1 through -7 are adopted substantially as 
proposed. As noted, the Bureau modified proposed comments 19(e)(1)(vi)-
1 and -6 to address confusion about whether hazard insurance carriers 
must be listed in the written list of providers required by Sec.  
1026.19(e)(1)(vi)(C), and the Bureau is modifying proposed comment 
19(e)(1)(vi)-4 because final Sec.  1026.19(e)(1)(vi)(C) states 
expressly that at least one service provider must be identified for 
each settlement service for which the consumer is permitted to shop. 
The Bureau is adopting Sec.  1026.19(e)(1)(vi)(A) through (C), and its 
commentary, pursuant to the Bureau's authority under sections 105(a) of 
TILA, 19(a) of RESPA, and, for residential mortgage loans, sections 
129B(e) of TILA and 1405(b) of the Dodd-Frank Act, as described in the 
proposal.

[[Page 79811]]

19(e)(2) Predisclosure Activity
    To promote the ability of consumers to shop for and evaluate 
available options for credit, the Bureau proposed several provisions in 
proposed Sec.  1026.19(e)(2) that would have restricted certain 
activities by creditors that may occur prior to the receipt by the 
consumer of the Loan Estimate. These provisions include restrictions on 
imposing fees on consumers, a requirement to place a statement on 
written estimates of loan terms or costs specific to the consumer that 
creditors may provide to the consumer before providing the Loan 
Estimate to the consumer to differentiate the written estimates from 
the Loan Estimate, and a prohibition that the creditor may not require 
the consumer to submit verifying information related to the consumer's 
application. These provisions are described in detail below in the 
section-by-section analyses of Sec.  1026.19(e)(2)(i), (ii), and (iii), 
respectively. In addition, see part VI for a discussion of the specific 
effective date applicable to Sec.  1026.19(e)(2).
19(e)(2)(i) Imposition of Fees on Consumer
    The Bureau proposed Sec.  1026.19(e)(2)(i), which would have 
prohibited a creditor or any other person from imposing a fee on a 
consumer in connection with the consumer's application for a mortgage 
transaction subject to Sec.  1026.19(e)(1)(i) before the consumer has 
received the Loan Estimate and indicated an intent to proceed with the 
transaction, except for a bona fide and reasonable fee for obtaining 
the consumer's credit report. As set forth below, the general fee 
restriction was set forth in proposed Sec.  1026.19(e)(2)(i)(A), and 
the exception was set forth in proposed Sec.  1026.19(e)(2)(i)(B). Both 
provisions are discussed in greater detail below.
19(e)(2)(i)(A) Fee Restriction
    Section 128(b)(2)(E) of TILA provides that the ``consumer shall 
receive the disclosures required under [TILA section 128(b)] before 
paying any fee to the creditor or other person in connection with the 
consumer's application for an extension of credit that is secured by 
the dwelling of a consumer.'' 15 U.S.C. 1638(b)(2)(E). This provision 
is implemented in Sec.  1026.19(a)(1)(ii). Although RESPA does not 
contain a similar provision, Regulation X does. See Sec.  1024.7(a)(4). 
However, unlike Regulation Z, Regulation X prohibits a consumer from 
paying a fee until the consumer indicates an intent to proceed with the 
transaction after receiving the disclosures. Id. As discussed below, 
both Regulation Z and Regulation X provide an exception only for the 
cost of obtaining a credit history or credit report, respectively.
    Thus, Regulation X requires consumers to take an additional 
affirmative step before new fees may be charged. In the proposal, the 
Bureau stated its belief that the goals of the integrated disclosures 
are best served by adopting the approach under Regulation X. The Bureau 
explained that the integrated disclosures were designed to facilitate 
the making of informed financial decisions by consumers, and expressed 
concern that this goal would be inhibited if fees are imposed on 
consumers before a consumer indicates an intent to proceed. The Bureau 
noted that for example, after reviewing the Loan Estimate a consumer 
may be uncertain that the disclosed terms are in the consumer's best 
interest or that the disclosed terms are those which the consumer 
originally requested. However, if fees may be imposed before the 
consumer decides to proceed with a particular loan, consumers may not 
take additional time to understand the costs and evaluate the risks of 
the disclosed loan. The Bureau also stated its intent for consumers to 
use the integrated disclosures to compare loan products from different 
creditors. The Bureau expressed concern that if creditors can impose 
fees on consumers once the Loan Estimate is delivered, but before the 
consumer indicates intent to proceed, shopping may be inhibited.
    The Bureau noted that, for example, after reviewing the Loan 
Estimate a consumer may be uncertain that the disclosed terms are the 
most favorable terms the consumer could receive in the market. However, 
if fees may be imposed before the consumer decides to proceed with a 
particular loan, consumers may determine that too much cost has been 
expended on a particular Loan Estimate to continue shopping, even 
though the consumer believes more favorable terms could be obtained 
from another creditor. The Bureau also expressed concern that consumers 
would conclude that obtaining a Loan Estimate from multiple creditors 
is too costly if each creditor can impose fees for each Loan Estimate.
    Accordingly, pursuant to its authority under TILA section 105(a) 
and 128(b)(2)(E) and RESPA section 19(a), the Bureau proposed Sec.  
1026.19(e)(2)(i)(A), which would have provided that neither a creditor 
nor any other person may impose a fee on a consumer in connection with 
the consumer's application before the consumer has received the 
disclosures required by Sec.  1026.19(e)(1)(i) and indicated to the 
creditor an intent to proceed with the transaction described by those 
disclosures. Proposed comment 19(e)(2)(i)(A)-1 would have explained 
that a creditor or other person may not impose any fee, such as for an 
application, appraisal, or underwriting, until the consumer has 
received the disclosures required by Sec.  1026.19(e)(1)(i) and 
indicated an intent to proceed with the transaction. The only exception 
to the fee restriction would have been to allow the creditor or other 
person to impose a bona fide and reasonable fee for obtaining a 
consumer's credit report, pursuant to proposed Sec.  
1026.19(e)(2)(i)(B).
    Proposed comment 19(e)(2)(i)(A)-2 would have explained that the 
consumer may indicate an intent to proceed in any manner the consumer 
chooses, unless a particular manner of communication is required by the 
creditor, provided that the creditor does not assume silence is 
indicative of intent. The proposed comment would have clarified that 
the creditor must document this communication to satisfy the 
requirements of Sec.  1026.25. The proposed comment would have also 
included illustrative examples.
    Proposed comment 19(e)(2)(i)(A)-3 would have discussed the 
collection of fees and clarified that at any time prior to delivery of 
the required disclosures, the creditor may impose a credit report fee 
as provided in Sec.  1026.19(e)(2)(i)(B), but that the consumer must 
receive the disclosures required by Sec.  1026.19(e)(1)(i) and indicate 
an intent to proceed before paying or incurring any other fee in 
connection with the consumer's application. Proposed comment 
19(e)(2)(i)(A)-4 would have provided illustrative examples regarding 
these requirements.
    Proposed comment 19(e)(2)(i)(A)-5 would have clarified that, for 
purposes of Sec.  1026.19(e), a fee is ``imposed by'' a person if the 
person requires a consumer to provide a method for payment, even if the 
payment is not made at that time. The proposed comment would have 
provided examples that a creditor may not require the consumer to 
provide a $500 check or a credit card number to pay a ``processing 
fee'' before the consumer receives the disclosures required by Sec.  
1026.19(e)(1)(i) and the consumer subsequently indicates intent to 
proceed. The proposed comment would have further clarified that the 
creditor in this example would not comply with Sec.  1026.19(e)(2) even 
if the creditor did not deposit the check or charge the card until 
after the disclosures required by

[[Page 79812]]

Sec.  1026.19(e)(1)(i) were received by the consumer and the consumer 
subsequently indicated intent to proceed. The proposed comment would 
have further explained that the creditor would have complied with Sec.  
1026.19(e)(2) if the creditor required the consumer to provide a credit 
card number if the consumer's authorization was only to pay for the 
cost of a credit report. The proposed comment would have clarified that 
this would comply with Sec.  1026.19(e)(2) even if the creditor 
maintained the consumer's credit card number on file and charged the 
consumer a $500 processing fee after the disclosures required by Sec.  
1026.19(e)(1)(i) were received and the consumer subsequently indicated 
an intent to proceed, provided that the creditor requested and received 
a separate authorization for the processing fee charge from the 
consumer after the consumer received the disclosures required by Sec.  
1026.19(e)(1)(i).
19(e)(2)(i)(B) Exception to Fee Restriction
    As noted above, Sec.  1026.19(a)(1)(iii) of Regulation Z currently 
provides that a person may impose a fee for obtaining a consumer's 
credit history prior to providing the good faith estimates, which is 
the lone exception to the general rule established by Sec.  
1026.19(a)(1)(ii) that fees may not be imposed prior to the consumer's 
receipt of the disclosures. Section 1024.7(a)(4) of Regulation X 
contains a similar exception, but it differs in two important respects. 
First, Regulation Z provides that the fee may be imposed for a 
consumer's ``credit history,'' while Regulation X specifies that the 
fee must be for the consumer's ``credit report.'' The Regulation Z 
provision could be read as permitting a broader range of activity than 
just acquiring a consumer's credit report. The Bureau proposed to adopt 
the terminology used by Regulation X, concluding that the purposes of 
the integrated disclosures were better served by the more restrictive 
language. The Bureau stated that consumers should be able to receive a 
reliable estimate of mortgage loan costs with as little up-front 
expense and burden as possible, while creditors should be able to 
receive sufficient information from the credit report alone to develop 
a reasonably accurate estimate of costs.
    Second, existing commentary under Regulation Z provides that the 
fee charged pursuant to Sec.  1026.19(a)(1)(iii) may be described or 
referred to as an ``application fee,'' provided the fee meets the other 
requirements of Sec.  1026.19(a)(1)(iii). The Bureau, however, proposed 
for purposes of the integrated disclosures to require a fee for a 
credit report to be disclosed with the more precise label under the 
theory that consumers may be more likely to understand that a credit 
report fee is imposed if a fee for the purpose of obtaining a credit 
report is clearly described as such, and compliance costs are generally 
reduced when regulatory requirements are standardized. Accordingly, the 
Bureau proposed Sec.  1026.19(e)(2)(i)(B), which would have provided 
that a person may impose a bona fide and reasonable fee for obtaining 
the consumer's credit report before the consumer has received the 
disclosures required by Sec.  1026.19(e)(1)(i). Proposed comment 
19(e)(2)(i)(B)-1 would have clarified that a creditor or other person 
may impose a fee before the consumer receives the required disclosures 
if it is for purchasing a credit report on the consumer, provided that 
such fee is bona fide and reasonable in amount. The proposed comment 
would have also stated that the creditor must accurately describe or 
refer to this fee, for example, as a ``credit report fee.''
Comments
    A large non-depository lender expressed the concern that if the 
proposal was finalized as proposed, the practice of requiring a method 
of payment prior to providing the Loan Estimate would be a violation of 
the rule. The commenter, along with a number of other commenters that 
included a large bank commenter and industry trade associations 
representing banks and mortgage lenders, asserted that creditors should 
be permitted to obtain the consumer's credit card information before a 
consumer receives the Loan Estimate and indicates an intent to proceed, 
regardless of whether the creditor intends to charge the consumer the 
fee for obtaining the consumer's credit report. The trade association 
commenters asserted that restricting the creditor's ability to obtain 
the consumer's credit card information imposes an operational burden on 
creditors that do not charge a consumer for a credit report fee until 
the consumer has indicated an intent to proceed. The commenters 
predicted that adopting the proposed rule would make it likely that 
creditors will change their current practice and begin charging the 
credit report fee before the consumer indicates an intent to proceed.
    The Bureau also received requests from industry commenters that the 
Bureau clarify how to determine when a consumer has indicated an intent 
to proceed. The trade association commenter requested that the Bureau 
clarify that a lender may require the consumer to indicate the intent 
to proceed in a specific manner, as long as it is reasonable. The 
commenters also described specific examples and asked the Bureau to 
provide guidance on whether each specific example constitutes the 
consumer's intent to proceed. Similarly, a community bank commenter 
asserted that the Loan Estimate should contain a signature line, which 
could be signed by the consumer to indicate the consumer's intent to 
proceed.
    The trade association commenter and the large bank commenter 
additionally requested that the Bureau clarify what the Bureau meant 
when it stated in proposed Sec.  1026.19(e)(2)(i)(A)-5 that a creditor 
must request and receive a separate authorization for a new fee before 
it charges the consumer the new fee on the credit card the creditor had 
previously used to charge the consumer for the cost of a credit report. 
The commenters asserted that it was unclear whether the ``separate 
authorization'' refers to an authorization from the credit card company 
or a separate verbal authorization from the consumer to the creditor 
with respect to charging the consumer's credit card. The trade 
association commenter further requested clarification on whether the 
consumer's explicit expression of intent to proceed provides the lender 
with separate authorization to charge additional fees. Finally, the 
Bureau also received comments from industry commenters that asserted 
that the creditor should be able to charge the consumer a ``pre-
application fee'' to compensate the creditor for pre-approval 
activities, such as the issuance of pre-application worksheets.
Final Rule
    The Bureau has considered the comments, and for the reasons set 
forth below, is finalizing Sec.  1026.19(e)(2)(i) substantially as 
proposed. The Bureau believes that it is important that the consumer 
takes the affirmative step to indicate an intent to proceed with the 
mortgage loan transaction before the creditor requests a method of 
payment from the consumer, other than a method of payment to pay for 
the cost of a credit report. The Bureau recognizes that requiring a 
method of payment does not necessarily mean that the consumer will 
actually be charged. However, the Bureau is concerned that consumers' 
use of the integrated disclosures to make informed financial decisions 
and to compare loan products from different creditors may be inhibited 
if creditors can require that the consumer provide

[[Page 79813]]

the consumer's credit card number without a specific, narrowly tailored 
purpose before the consumer indicates an intent to proceed with the 
transaction. This may make a consumer feel committed to the creditor 
even though, after reviewing the Loan Estimate, the consumer may be 
uncertain that the disclosed terms are in the consumer's best interest 
or that the disclosed terms are those for which the consumer originally 
asked. The consumer may also feel uncomfortable providing the 
consumer's credit card number to multiple creditors, if multiple 
creditors intend to keep the numbers on file to charge at a later date. 
In addition, the Bureau understands that some creditors may currently 
require consumers to provide their credit card numbers at the time of 
application to provide a ``deposit'' that is either charged after 
application if the consumer does not consummate the transaction, or is 
applied towards the consumer's closing costs if the transaction is 
consummated. Under Sec.  1026.19(e)(2)(i) adopted in this final rule, a 
creditor is not permitted to require the consumer to provide the 
consumer's credit card number before the consumer receives the Loan 
Estimate and indicates an intent to proceed, even if the creditor 
promises not to charge the card until after such time. See comment 
19(e)(2)(i)(A)-5.
    The Bureau has revised the final regulation text to address 
commenters' request for additional clarification with respect to 
determining whether a consumer has indicated an intent to proceed. 
Proposed comment 19(e)(ii)(A)-2 would have explained, among other 
things, that a creditor can require a particular method of 
communication for the consumer to indicate an intent to proceed, as 
long as the creditor can document this communication to satisfy the 
requirements of Sec.  1026.25. But in light of the comments requesting 
additional clarification with respect to determining whether a consumer 
has indicated an intent to proceed, the Bureau believes incorporating 
the statement, set forth in proposed comment 19(e)(ii)(A)-2, that the 
consumer may indicate an intent to proceed in any manner the consumer 
chooses, unless the creditor requires a particular manner of 
communication into final Sec.  1026.19(e)(2)(i)(A) as part of the 
regulatory text would facilitate compliance. As adopted, Sec.  
1026.19(e)(2)(i)(A) provides that except as provided in Sec.  
1026.19(e)(2)(i)(B), neither a creditor nor any other person may impose 
a fee on a consumer in connection with the consumer's application for a 
mortgage transaction subject to Sec.  1026.19(e)(1)(i) before the 
consumer has received the disclosures required under Sec.  
1026.19(e)(1)(i) and indicated to the creditor an intent to proceed 
with the transaction described by those disclosures. Section 
1026.19(e)(2)(i)(A) further provides that a consumer may indicate an 
intent to proceed with a transaction in any manner the consumer 
chooses, unless a particular manner of communication is required by the 
creditor.
    The Bureau declines to make other changes to the rule requested by 
commenters. With respect to the request that the Loan Estimate contain 
a signature line that could be signed by the consumer to indicate the 
consumer's intent to proceed, the Bureau believes that allowing the 
Loan Estimate to be signed by the consumer to document the consumer's 
intent to proceed is contradictory to the intent of TILA section 
128(2)(B)(i). This section of TILA, implemented in this final rule in 
Sec.  1026.37(n)(1), provides that consumers are not required to 
proceed with the transaction merely because they have received the Loan 
Estimate or signed a loan application. Specifically, form H-24 of 
appendix H to Regulation Z, which illustrates the optional signature 
line permitted on the Loan Estimate under Sec.  1026.37(n)(1), states 
that the consumer's signature only documents receipt of the Loan 
Estimate. The Bureau also does not believe that additional 
clarification is needed to explain what ``separate authorization'' 
means in comment 19(e)(2)(i)(A)-5, which is adopted as proposed. The 
Bureau believes that the term ``separate authorization,'' as used in 
the comment, clearly means a new authorization, whether verbal or 
written, from the consumer for the creditor to charge new fees. The 
Bureau believes that an expression of a consumer's intent to proceed 
with a transaction is not the same as an authorization to the creditor 
to charge additional fees.
    Lastly, the Bureau does not believe that the creditor should be 
able to impose on a consumer a ``pre-application fee'' before the 
consumer has received the Loan Estimate and indicated an intent to 
proceed. As discussed above, both Regulations X and Z contain 
provisions that create exceptions to the general prohibition on the 
creditor's ability to impose fees on a consumer prior to providing the 
RESPA GFE and early TILA disclosure. The Bureau incorporated the 
terminology used by Regulation X in the proposal because the Bureau 
believed that incorporating the more narrow and precise terminology 
used by Regulation X would better ensure that consumers receive a 
reliable estimate of mortgage loan costs with as little up-front 
expense and burden as possible.
    The Bureau believes permitting creditors to impose a ``pre-
application fee'' on the consumer is problematic. First, although the 
Bureau recognizes that the creditor uses resources to provide pre-
application worksheets or other pre-qualification services, the 
worksheets are not subject to the good faith requirements of TILA 
section 128(b)(2)(A) and RESPA section 5 and may be unreliable. 
Accordingly, expanding the exception to a ``pre-application fee'' would 
be contrary to the Bureau's intent of ensuring that consumers receive a 
reliable estimate of mortgage loan costs with as little up-front 
expense and burden as possible. Second, the Bureau is concerned that 
the description of a fee as a ``pre-application fee'' is imprecise and 
that there may not be an industry standard to help determine what the 
fee is paying for, which does not promote the informed use of credit. 
The lack of precision and uniformity could also complicate supervision 
and compliance. Additionally, consumers may not have any information 
available to them regarding what services are included in the fee.
    For the reasons stated above, the Bureau is adopting Sec.  
1026.19(e)(2)(i)(A) and (B) largely as proposed, pursuant to its 
authority under TILA section 105(a) and 129(b)(2)(E), and RESPA section 
19(a). The Bureau is also finalizing comments 19(e)(2)(i)(A)-1 through 
-5, and comment 19(e)(2)(i)(B)-1 substantially as proposed, except for 
revisions to improve the clarity of the proposed comments. The Bureau 
believes that it is important that the consumer takes the affirmative 
step to indicate an intent to proceed with the mortgage loan 
transaction before the creditor requests a method of payment from the 
consumer, other than a method of payment to pay for the cost of a 
credit report. The Bureau recognizes that requiring a method of payment 
does not necessarily mean that the consumer actually will be charged. 
However, the Bureau's goals that consumers use the integrated 
disclosures to make informed financial decisions and that consumers use 
the disclosure to compare loan products from different creditors may be 
inhibited if the Bureau permits a creditor to require that the consumer 
provide the consumer's credit card number without a specific, narrowly-
tailored purpose before the consumer indicates an intent to proceed.

[[Page 79814]]

19(e)(2)(ii) Written Information Provided to Consumer
    The Bureau proposed to require creditors that provide a written 
estimate of loan terms or costs specific to a consumer, before the 
consumer has received the Loan Estimate and indicated an intent to 
proceed, to include a statement on such estimate to distinguish the 
estimate from the Loan Estimate. The Bureau understands that consumers 
often request written estimates of loan terms before receiving the 
RESPA GFE or early TILA disclosure. The Bureau recognizes that these 
written estimates may be helpful to consumers. However, the Bureau 
expressed concern in the proposal that consumers could confuse such 
written estimates, which are not subject to the good faith requirements 
of TILA section 128(b)(2)(A) and RESPA section 5 and may therefore be 
unreliable, with the Loan Estimate disclosures proposed under Sec.  
1026.19(e)(1)(i), which must be made in good faith. The Bureau was also 
concerned that unscrupulous creditors may use formatting and language 
similar to the disclosures that would have been required under Sec.  
1026.19(e)(1)(i) to deceive consumers into believing that the 
creditor's unreliable written estimate is actually the disclosure that 
would have been required under Sec.  1026.19(e)(1)(i). The Bureau found 
these concerns to be particularly important in light of section 1405(b) 
of the Dodd-Frank Act, which places emphasis on improving ``consumer 
awareness and understanding of transactions involving residential 
mortgage loans through the use of disclosures.''
    The Bureau believes that creditors may choose to issue, and 
consumers may want, preliminary written estimates based on less 
information than is needed to issue the disclosures required under 
Sec.  1026.19(e)(1)(i). However, mortgage loan costs are often highly 
sensitive to the information that triggers the disclosures. The Bureau 
noted that as such, the disclosures that would have been required under 
proposed Sec.  1026.19(e)(1)(i) may be more accurate indicators of cost 
than preliminary written estimates. The Bureau stated that consumers 
may better understand the sensitivity of mortgage loan costs to 
information about the consumer's creditworthiness and collateral value 
if consumers are aware of the difference between preliminary written 
estimates and disclosures required under Sec.  1026.19(e)(1)(i). 
Additionally, section 1032(a) of the Dodd-Frank Act authorizes the 
Bureau to prescribe rules to ensure the full, accurate, and effective 
disclosure of mortgage loan costs in a manner that permits consumers to 
understand the associated risks. The Bureau sought to foster consumer 
understanding of the reliability of the cost information provided, 
while permitting the use of preliminary written estimates, which may be 
beneficial to consumers.
    Accordingly, pursuant to its authority under section 105(a) of 
TILA, section 1032(a) of the Dodd-Frank Act, and, for residential 
mortgage loans, sections 129B(e) of TILA and 1405(b) of the Dodd-Frank 
Act, the Bureau proposed to require creditors to distinguish between 
preliminary written estimates of mortgage loan costs, which are not 
subject to the good faith requirements under TILA and RESPA, and the 
disclosures required under Sec.  1026.19(e)(1)(i), which are subject to 
these requirements. Proposed Sec.  1026.19(e)(2)(ii) would have 
required creditors to provide consumers with a disclosure indicating 
that the preliminary written estimate is not the Loan Estimate required 
by RESPA and TILA, if a creditor provides a consumer with such written 
estimate of specific credit terms or costs before the consumer receives 
the disclosures under Sec.  1026.19(e)(1)(i) and subsequently indicates 
an intent to proceed with the mortgage loan transaction. The Bureau 
concluded that the proposed provision is consistent with section 105(a) 
of TILA in that it would increase consumer awareness of the costs of 
the transaction by informing consumers of the risk of relying on 
preliminary written estimates, thereby assuring a meaningful disclosure 
of credit terms and promoting the informed use of credit. The Bureau 
also believed the proposal is consistent with section 129B(e) of TILA 
because permitting creditors to provide borrowers with a preliminary 
written estimate and the Loan Estimate required by TILA and RESPA 
without a disclosure indicating the difference between the two is not 
in the interest of the borrower.
    Proposed comment 19(e)(2)(ii)-1 would have explained that Sec.  
1026.19(e)(2)(ii) applies only to written information specific to the 
consumer. It provided examples to illustrate the difference between 
written information specific to the consumer, such as an estimated 
monthly payment for a mortgage loan based on the estimated loan amount 
and the consumer's estimated credit score, and non-individualized 
information such as a preprinted list of closing costs common in the 
consumer's area, or an advertisement as defined in Sec.  1026.2(a)(2). 
This proposed comment would have also included a reference to comment 
19(e)(1)(ii)-4 regarding mortgage broker provision of written estimates 
specific to the consumer.
Comments
    The Bureau received largely supportive comments from industry 
commenters, but largely negative comments from consumer advocacy 
groups. A number of consumer advocacy groups expressed concerns 
regarding how non-binding, pre-application estimates have been used by 
creditors and mortgage brokers to deceive borrowers. They asserted that 
any creditor or broker using any document that is substantially similar 
to the Loan Estimate or Closing Disclosure should be subject to the 
requirements for such forms. The consumer advocacy groups asserted that 
the proposal would send a message that the Bureau condones the practice 
of providing consumers with non-binding estimates that have been used 
to deceive consumers. The commenters asserted that the disclaimer the 
Bureau proposed is inadequate. In joint comments, two national consumer 
advocacy groups observed that the Kleimann Testing Report contained a 
recommendation to design a more noticeable disclaimer, and asserted 
that the proposed disclaimer is only marginally more noticeable than 
the one tested. Accordingly, the national consumer advocacy group 
commenters expressed the belief that creditors would still be able to 
use pre-application worksheets to circumvent consumer shopping.
    As noted, industry commenters generally expressed support for the 
proposal. For instance, a community bank commenter concluded that the 
proposed disclaimer would reduce consumer confusion. A national trade 
association representing credit unions generally expressed support for 
the proposed disclaimer. The trade association commenter supported the 
disclaimer, so long as the statement does not require significant 
redesign of the forms that creditors currently use as pre-application 
worksheets or the use of additional pages for the disclaimer. A State 
trade association representing banks commented regarding proposed form 
H-26(B) that its member banks would prefer to use their own version of 
a consumer-specific worksheet, rather than proposed form H-26(B).\193\
---------------------------------------------------------------------------

    \193\ Proposed form H-26(B) would have illustrated the placement 
of the disclaimer on a consumer-specific worksheet for which a 
creditor uses a format similar to the proposed Loan Estimate in form 
H-24 of appendix H to Regulation Z.
---------------------------------------------------------------------------

    An industry trade association representing community banks agreed

[[Page 79815]]

that the unregulated nature of pre-application estimates can cause 
confusion for consumers, but asserted that the proposed disclaimer 
would further confuse the consumer. The commenter suggested that the 
problem lies not with the worksheets, but with the belief by creditors 
that they must have the property address to issue the RESPA GFE. The 
commenter expressed concern that creditors are treating this as a 
requirement, and thus, the creditor must provide worksheets to 
consumers shopping for a mortgage loan, and then issue the Loan 
Estimate only after the consumer selects the property. As discussed in 
greater detail in the section-by-section analysis of Sec.  
1026.2(a)(3), the commenter recommended that the Bureau address the 
issue by making ``property address'' an optional item in the definition 
of ``application'' for the original Loan Estimate delivery requirement 
in purchase transactions.
    A GSE commenter expressed concern that the proposed disclaimer 
could confuse consumers if the Bureau were to adopt, pursuant to the 
Bureau's 2012 Loan Originator Proposal, the requirement that the 
creditor must first provide the consumer with a quote for a comparable, 
alternative loan without any discount or origination points and/or fees 
(zero-zero alternative) before compensating a loan originator with a 
transaction-specific payment and charging the consumer discount and 
origination points and fees. The GSE commenter believed that the zero-
zero alternative would have been specific to the consumer and would be 
provided before the Loan Estimate. The GSE commenter argued that 
providing a disclosure that the consumer is meant to rely on for 
understanding pricing trade-offs in a document that contains the 
proposed disclaimer would cast doubt on the document's reliability and 
cause consumer confusion. An industry trade association representing 
mortgage bankers suggested that instead of finalizing this aspect of 
the Bureau's 2012 Loan Originator Proposal, the Bureau should permit 
creditors to inform the consumer that different loan programs with 
different mixes of rates and fees are available on the pre-application 
worksheets.
Final Rule
    The Bureau is adopting Sec.  1026.19(e)(2)(ii) and comment 
19(e)(2)(ii)-1 largely as proposed, after considering the comments, and 
pursuant to its authority under section 105(a) of TILA, section 1032(a) 
of the Dodd-Frank Act, and, for residential mortgage loans, sections 
129B(e) of TILA and 1405(b) of the Dodd-Frank Act. As adopted, Sec.  
1026.19(e)(2)(ii) provides that if a creditor or other person provides 
a consumer with a written estimate of terms or costs specific to that 
consumer before the consumer receives the disclosures required under 
Sec.  1026.19(e)(1)(i), the creditor or such person shall clearly and 
conspicuously state at the top of the front of the first page of the 
estimate in a font size that is no smaller than 12-point font: ``Your 
actual rate, payment, and costs could be higher. Get an official Loan 
Estimate before choosing a loan.'' The Bureau is deleting the proposed 
timing requirement that the written estimate be provided before the 
consumer has indicated an intent to proceed with the transaction. The 
Bureau believes that this requirement suggests that a written estimate 
could be provided even though the Loan Estimate had been provided. The 
Bureau believes receiving a written estimate after the Loan Estimate 
has been provided will confuse consumers and create compliance burdens 
for industry. The Bureau is modifying proposed Sec.  1026.19(e)(2)(ii) 
in response to consumer advocacy groups' concern that pre-application 
worksheets formatted in a way that is substantially similar to the Loan 
Estimate or Closing Disclosure can cause consumer confusion. Section 
1026.19(e)(2)(ii) provides that a written estimate of terms or costs 
may not be made with headings, content, and format substantially 
similar to form H-24 or H-25 of appendix H to Regulation Z.
    With respect to the concerns raised about proposed form H-26(B), 
which would have provided a sample of the statement required by Sec.  
1026.19(e)(2)(ii) on a consumer-specific worksheet, the Bureau intended 
that the worksheet illustrated by proposed form H-26(B) provide an 
example of a worksheet that had a similar format as the proposed Loan 
Estimate. However, as discussed in greater detail in the section-by-
section analysis of appendix H, the Bureau is concerned that worksheets 
similar in format to the Loan Estimate could confuse consumers, which 
was a concern raised by consumer advocacy group commenters. In 
addition, the Bureau is concerned that the sample caused confusion for 
industry commenters, which were concerned that the format of form H-
26(B) would be required. As noted above, to address concerns raised by 
commenters about consumer confusion from worksheets similar in format 
to the Loan Estimate, the Bureau has modified Sec.  1026.19(e)(2)(ii) 
to prohibit the use of a consumer-specific worksheet that is 
substantially similar in format to the Loan Estimate or the Closing 
Disclosure. Accordingly, the Bureau is not adopting proposed form H-
26(B). The Bureau is, however, adopting the model form of the statement 
required by Sec.  1026.19(e)(2)(ii), renumbered as form H-26. The 
Bureau believes that a creditor or other person providing consumer-
specific written estimates may use forms they have already developed, 
provided that they add the disclaimer required by Sec.  
1026.19(e)(2)(ii) and that their forms are not substantially similar to 
form H-24 or H-25 of appendix H to Regulation Z.
    With respect to the argument that consumers are becoming confused 
because current regulations prohibit provision of the RESPA GFE until 
the consumer has a specific property address, the Bureau notes that the 
final rule permits creditors to provide a consumer with a Loan Estimate 
without receiving information about the property address. As discussed 
in more detail above in the section-by-section analysis of Sec.  
1026.2(a)(3), the property address is not required to be received 
before a creditor may issue the Loan Estimate. Finally, with respect to 
concerns about the interactions between Sec.  1026.19(e)(2)(ii) and the 
2012 Loan Originator Proposal, the zero-zero alternative was not 
adopted in the Bureau's 2013 Loan Originator Final Rule.
19(e)(2)(iii) Verification of Information
    The Bureau proposed in Sec.  1026.19(e)(2)(iii) to prohibit 
creditors from requiring consumers to submit documents verifying 
information related to the consumer's application before providing the 
Loan Estimate. Section 1024.7(a)(5) of Regulation X currently provides 
that a creditor may collect any information from the consumer deemed 
necessary in connection with an application, but the creditor may not 
require, as a condition for providing a RESPA GFE, that the consumer 
provide supplemental documentation to verify the information the 
consumer provided on the application. HUD stated in its 2008 RESPA 
Final Rule that the prohibition was to prevent over-burdensome 
documentation demands on mortgage applicants, and to facilitate 
shopping by borrowers. 73 FR 68204, 68211 (Nov. 17, 2008).
    The Bureau proposed to incorporate language similar to Sec.  
1024.7(a)(5) in the integrated disclosures rules in order to minimize 
the cost to consumers of obtaining Loan Estimates. The Bureau proposed 
Sec.  1026.19(e)(2)(iii), which

[[Page 79816]]

would have provided that a creditor shall not require a consumer to 
submit documents verifying information related to the consumer's 
application before providing the disclosures required by Sec.  
1026.19(e)(1)(i).
    The Bureau made this proposal pursuant to its authority under 
section 105(a) of TILA, section 19(a) of RESPA, and, for residential 
mortgage loans, section 129B(e) of TILA. The Bureau stated its belief 
in the proposal that proposed Sec.  1026.19(e)(2)(iii) would effectuate 
the purposes of TILA by reducing the burden to consumers associated 
with obtaining different offers of available credit terms, thereby 
facilitating consumers' ability to compare credit terms, consistent 
with section 105(a) of TILA. The Bureau also stated that this proposed 
provision would be consistent with section 129B(e) of TILA because 
requiring documentation to verify the information provided in 
connection with an application increases the burden on borrowers 
associated with obtaining different offers of available credit terms, 
which is not in the interest of the borrower.
    Proposed comment 19(e)(2)(iii)-1 would have explained that the 
creditor may collect from the consumer any information that it requires 
prior to providing the early disclosures, including information not 
listed in Sec.  1026.2(a)(3)(ii). However, the proposed comment would 
have clarified that the creditor is not permitted to require, before 
providing the disclosures required by Sec.  1026.19(e)(1)(i), that the 
consumer submit documentation to verify the information provided by the 
consumer. The proposed comment would have also provided examples, 
stating that the creditor may ask for the names, account numbers, and 
balances of the consumer's checking and savings accounts, but the 
creditor may not require the consumer to provide bank statements, or 
similar documentation, to support the information the consumer provides 
orally before providing the disclosures required by Sec.  
1026.19(e)(1)(i). Further, proposed comment 19(e)(2)(iii)-1 would have 
referenced Sec.  1026.2(a)(3) and the related commentary for guidance 
on the definition of application.
    The proposed provision did not generate much comment. A software 
vendor commenter sought clarification on whether a creditor must refuse 
verifying documentation a consumer brings to the creditor in 
anticipation of such documentation being needed. The Bureau does not 
believe that verifying documentation should be needed prior to issuing 
a Loan Estimate. However, the final rule does not prohibit the creditor 
from accepting verifying documentation if the consumer proffers such 
documentation, provided that it is not required by the creditor before 
the creditor provides the Loan Estimate.
    As noted above in the section-by-section analysis of Sec.  
1026.2(a)(3), based on comments responding to the Bureau's proposed 
definition of application, the Bureau understands that some creditors 
currently require a purchase and sale agreement prior to issuing the 
RESPA GFE and the early TILA disclosures in purchase transactions.
    The Bureau is concerned that some creditors may use the purchase 
and sale contract as verification documentation to support information 
that it has asked the consumer to provide in connection with the 
consumer's application, such as the sale price or the property address, 
before the creditor issues the Loan Estimate, although as noted in the 
section-by-section analysis of Sec.  1026.2(a)(3), the practice may be 
permissible under current Regulation X for purposes of the RESPA GFE in 
limited cases. Final comment 19(e)(2)(iii)-1 explains that a creditor 
is not permitted to require, before providing the disclosures required 
by Sec.  1026.19(e)(1)(i), that the consumer submit documentation to 
verify the information provided by the consumer. The Bureau is adopting 
Sec.  1026.19(e)(2)(iii) based on the same intent on which HUD based 
Sec.  1024.7(a)(5), which is to prevent overly burdensome documentation 
demands on mortgage applicants, and to facilitate shopping by the 
consumer.
    The Bureau believes that requiring a consumer to submit a purchase 
and sale contract so that the creditor can obtain information it would 
otherwise obtain from the consumer or other sources may constitute 
overly burdensome documentation and inhibit shopping because under such 
a demand a consumer would be required to become obligated to the 
purchase of real estate prior to obtaining a reliable estimate of the 
cost of financing such purchase. The Bureau notes that the creditor may 
revise the estimates provided in the original Loan Estimate based on 
receipt of changed information under Sec.  1026.19(e)(3)(iv)(A). 
Accordingly, the Bureau believes that requiring the consumer to provide 
a purchase and sale contract before issuing the Loan Estimate would be 
in contravention of the prohibition on requiring verifying 
documentation being finalized under Sec.  1026.19(e)(2)(iii). The 
Bureau is adjusting comment 19(e)(2)(iii)-1 to clarify that the 
creditor may not require the consumer to provide a purchase and sale 
agreement to verify information provided by the consumer before 
providing the disclosures required by Sec.  1026.19(e)(1)(i).
Final Rule
    Accordingly, the Bureau is finalizing Sec.  1026.19(e)(2)(iii) and 
comment 19(e)(2)(iii)-1 substantially as proposed. Section 
1026.19(e)(2)(iii) provides that the creditor or other person shall not 
require a consumer to submit documents verifying information related to 
the consumer's application before providing the disclosures required by 
Sec.  1026.19(e)(1)(i). Final comment 19(e)(2)(iii)-1 explains that the 
creditor or other person may collect from the consumer any information 
that it requires prior to providing the early disclosures before or at 
the same time as collecting the information listed in Sec.  
1026.2(a)(3)(ii) and provides illustrative examples. However, the 
creditor or other person is not permitted to require, before providing 
the disclosures required by Sec.  1026.19(e)(1)(i), that the consumer 
submit documentation to verify the information collected from the 
consumer. The comment also provides illustrative examples, including an 
example involving a purchase and sale contract, as described above, and 
refers to Sec.  1026.2(a)(3) and its commentary for guidance regarding 
the definition of application. The Bureau is adopting Sec.  
1026.19(e)(2)(iii) and comment 19(e)(2)(iii)-1 pursuant to its 
authority under section 105(a) of TILA, section 19(a) of RESPA, and for 
residential mortgage loans, section 129(B) of TILA.
19(e)(3) Good Faith Determination for Estimates of Closing Costs
The Bureau's Proposal
    The Bureau proposed to amend Regulation Z by: (1) Incorporating and 
expanding existing Regulation X requirements that establish tolerance 
categories limiting the variation between the estimated amount of 
certain settlement charges included on the RESPA GFE and the actual 
amounts included on the RESPA settlement statement; and (2) applying 
these requirements to variations between the estimated amount of 
certain settlement charges included on the Loan Estimate and the actual 
amounts paid by or imposed on the consumer. Current Regulation X 
prohibits variations in origination charges and transfer taxes between 
the estimated amounts and the actual amounts unless one of six 
exceptions, such as a changed circumstance or a borrower-requested

[[Page 79817]]

change, applies.\194\ The Bureau proposed to expand this zero percent 
tolerance category of settlement costs to include fees paid to 
affiliates of the creditor and fees paid to lender-required settlement 
service providers (i.e., settlement service providers that the creditor 
requires the consumer to use).\195\ Currently under Regulation X, these 
costs are in the ten percent tolerance category, which also includes 
recording fees and charges paid to non-lender-required third party 
settlement service providers where the borrower uses a lender-
identified settlement service provider, including charges for owner's 
title insurance. Costs in the ten percent tolerance category could 
increase between the estimated amount and the amount actually paid by 
or imposed on the consumer so long as the sum of all charges paid by or 
imposed on the consumer in this category does not exceed the sum of all 
such charges included on the RESPA GFE by more than ten percent. 12 CFR 
1024.7(e)(2). As discussed in greater detail in the section-by-section 
analysis of Sec.  1026.19(e)(3)(i), the Bureau proposed to incorporate 
these changes in that section.
---------------------------------------------------------------------------

    \194\ For a discussion of changed circumstances and borrower-
requested changes, see the section-by-section analysis of Sec.  
1026.19(e)(3)(iv).
    \195\ As proposed, the term ``affiliate'' would have meant any 
company that controls, is controlled by, or is under common control 
with another company, as set forth in the Bank Holding Company Act 
of 1956, 12 U.S.C. 1841(k). 77 FR 51167, fn. 141.
---------------------------------------------------------------------------

    Under the proposal, fees for lender-required services for which a 
creditor permits the consumer to choose the provider and the consumer 
selects a settlement service provider identified by the creditor would 
remain in the ten percent tolerance category. Recording fees and 
owner's title insurance would also stay in the ten percent tolerance 
category. See the section-by-section analysis of Sec.  
1026.19(e)(3)(ii) below.
    Further, similar to the current regulation, a cap would not be 
applied to certain settlement costs such as prepaid interest and 
property insurance premiums. This aspect of the proposal is discussed 
in greater detail in the section-by-section analysis of Sec.  
1026.19(e)(3)(iii) below. Lastly, similar to the current regulation, 
under the Bureau's proposal, creditors would continue to be able to 
rely on any of six exceptions such as changed circumstances and 
borrower-requested changes to adjust any estimated settlement cost 
subject to a tolerance if the creditor establishes that one of the six 
exceptions is the reason for the cost to increase beyond the applicable 
tolerance.
    The Bureau's rationale was based on the reasons described in the 
proposal (summarized below), and in reliance on its authority to 
prescribe standards for ``good faith estimates'' under TILA section 128 
and RESPA section 5, as well as its general rulemaking, exception, and 
exemption authorities under TILA sections 105(a) and 121(d), RESPA 
section 19(a), section 1032(a) of the Dodd-Frank Act, and, for 
residential mortgage loans, section 1405(b) of the Dodd-Frank Act and 
section 129B(e) of TILA.
    The Bureau believed that creditors could develop accurate estimates 
of fees for settlement services charged by their affiliates and by 
lender-required providers, because creditors are aided by the increased 
level of knowledge and communication suggested by these types of 
relationships and the frequency of repeat business with a particular 
affiliate or lender-required settlement service provider. The Bureau 
also believed that lenders that were denying the opportunity of 
consumers to influence the quality and cost of settlement services 
through shopping by requiring consumers to use lender-required service 
providers should take greater responsibility for estimating settlement 
costs accurately and assume some of the risk of underestimation for 
failing to accurately estimate such costs.
    The Bureau also believed that consumers benefit from having more 
reliable estimates of settlement costs. The Bureau believed that more 
reliable estimates are inherently beneficial. They enable consumers to 
make informed and responsible financial decisions. More reliable 
estimates also promote honest competition among industry providers that 
desire a fair and level playing field, and the existence of such a 
market for settlement services helps to prevent unnecessarily high 
settlement costs. Subjecting settlement costs to an enhanced 
reliability standard may also help to prevent financial surprises at 
the real estate closing that may greatly harm consumers.\196\ The 
Bureau stated in the proposal that it believed that these benefits 
advance the principles upon which TILA and RESPA were founded, and 
advance the goals of the 2008 RESPA Final Rule, under which the current 
tolerance categories were established.
---------------------------------------------------------------------------

    \196\ The Bureau stated in the proposal that settlement service 
providers such as appraisal management companies and title companies 
may be affiliated with the creditor. Because fees paid for 
appraisals and title-related services constitute a large percentage 
of total settlement service fees paid by consumers at consummation, 
permitting these fees to vary by ten percent may significantly 
increase the actual cost of obtaining a mortgage.
---------------------------------------------------------------------------

    TILA. TILA section 128(b)(2)(A) requires creditors to provide good 
faith estimates of certain required disclosures not later than three 
business days after receipt of a consumer's written application for a 
closed-end mortgage loan that is also subject to RESPA. TILA section 
128(b)(2)(D) also requires creditors to provide revised disclosures to 
consumers if the initially-disclosed APR becomes inaccurate, subject to 
a tolerance for accuracy, not later than three business days before 
consummation. TILA section 121(d) further establishes that the Bureau 
may create new tolerances for numerical disclosures other than the APR 
if the Bureau determines that such additional tolerances are necessary 
to facilitate compliance with TILA. Regulation Z Sec.  1026.19(a)(1)(i) 
implements the good faith and delivery requirements of TILA section 
128(b)(2)(A) in the context of certain mortgage loans. It requires 
creditors to make good faith estimates of the disclosures required by 
Sec.  1026.18 by either delivering or placing the disclosures in the 
mail not later than the third business day after the creditor receives 
the consumer's written application.\197\
---------------------------------------------------------------------------

    \197\ Section 1026.18 of Regulation Z includes several 
disclosures related to the cost of credit, such as the amount 
financed, finance charge, and annual percentage rate. Section 
1026.18(c)(3) also provides that the itemization of amount financed 
need not be delivered if the RESPA GFE is provided.
---------------------------------------------------------------------------

    Although settlement charges have historically been the subject of 
RESPA, section 1419 of the Dodd-Frank Act amended TILA section 128(a) 
to require creditors to disclose: ``In the case of a residential 
mortgage loan, the aggregate amount of settlement charges for all 
settlement services provided in connection with the loan, the amount of 
charges that are included in the loan and the amount of such charges 
the borrower must pay at closing . . . and the aggregate amount of 
other fees or required payments in connection with the loan.'' 15 
U.S.C. 1638(a)(17). The term ``settlement charges'' is not defined 
under TILA. This amendment expands the disclosure requirements of TILA 
section 128(a) beyond the cost of credit to include all charges imposed 
in connection with the mortgage loan. The Bureau stated in the proposal 
that the amendment made no distinction between whether those charges 
relate to the extension of credit or the real estate transaction, or 
whether those charges are imposed by the creditor or another party, so 
long as the charges arise in the context of the mortgage loan 
settlement.

[[Page 79818]]

    RESPA and HUD's 2008 RESPA Final Rule. A stated purpose of RESPA is 
that consumers should receive effective advance disclosures of 
settlement costs.\198\ Further, the statute establishes the requirement 
that lenders must provide consumers with good faith estimates of 
settlement costs, which include most fees charged in connection with a 
real estate settlement, within three days of receiving a consumer's 
application for a mortgage loan.\199\ HUD amended Regulation X with its 
2008 RESPA Final Rule after a ten-year investigatory process that found 
RESPA's stated purposes were undermined by market forces. HUD found 
that cost estimates appearing on the RESPA GFE could be significantly 
lower than the amount ultimately charged at settlement, even though in 
most cases loan originators could estimate final settlement costs with 
great accuracy. See 73 FR 14030, 14039 (March 14, 2009). Further, 
consumers were often unable to challenge increases in settlement costs 
because many consumers found out about the increases immediately before 
settlement, which was the point in time where they were in the weakest 
bargaining position.
---------------------------------------------------------------------------

    \198\ RESPA section 2(b). 12 U.S.C. 2601.
    \199\ RESPA section 5(c). 12 U.S.C. 2604.
---------------------------------------------------------------------------

    Since the enactment of the 2008 RESPA Final Rule, however, concerns 
were identified that could undermine its goals. The first of such 
concerns was the treatment of fees paid to lender affiliates. The 
inclusion of such fees in the ten percent tolerance category means that 
they could increase by as much as ten percent prior to the real estate 
closing, in addition to increases based on changed circumstances and 
borrower-requested changes. The Bureau stated in the proposal that 
given that the affiliate relationship is inherently beneficial to the 
creditor, permitting affiliate fees to vary by as much as ten percent 
without a need to justify the increase may incent creditors to raise 
fees at closing solely to obtain all money available up to the ten 
percent tolerance.
    The second of these concerns centers on the ability of consumers to 
shop for settlement service providers. As discussed above in the 
section-by-section analysis of Sec.  1026.19(e)(1)(vi), HUD intended to 
promote shopping by giving some information to the consumer as a 
starting point to shop. It promulgated the requirement that loan 
originators must provide borrowers with a written list of providers if 
the loan originator permits a borrower to shop for third-party 
settlement services. In the proposal, the Bureau stated that the 
concern is that creditors have used the requirement to direct consumers 
to use only the providers that are on the written list, thereby turning 
the lists into ``closed lists'' of ``preferred providers,'' and denying 
consumers the ability to influence the cost and quality of settlement 
services through shopping.
    Dodd-Frank Act. As discussed above, sections 1032(f), 1098, and 
1100A of the Dodd-Frank Act require integration of the disclosure 
provisions under TILA and RESPA, and sections 1098 and 1100A of the Act 
further provide that the purpose of the integrated disclosures is ``to 
facilitate compliance with the disclosure requirements of [RESPA] and 
[TILA], and to aid the borrower or lessee in understanding the 
transaction by utilizing readily understandable language to simplify 
the technical nature of the disclosures.'' The Bureau stated its belief 
in the proposal that these amendments require integration of the 
regulations related to the accuracy and delivery of the disclosures, as 
well as their content.
    During the Small Business Review Panel process, several small 
entity representatives expressed concern about the unintended 
consequences that may result from applying the zero-percent tolerance 
rule currently under Regulation X to affiliates of the creditor or 
mortgage broker and to providers selected by the creditor,\200\ and the 
Small Business Review Panel recommended that the Bureau consider 
alternatives that would increase the reliability of cost estimates 
while minimizing the impacts on small entities and solicit comment on 
the effectiveness of the current tolerance rules.\201\
---------------------------------------------------------------------------

    \200\ See Small Business Review Panel Report at 34, 37-38, 40, 
64, 67, and 71.
    \201\ Id. at 29.
---------------------------------------------------------------------------

    Consistent with the Small Business Review Panel's recommendation, 
the Bureau solicited comment on all aspects of the proposal, including 
the cost, burden, and benefits to consumers and to industry regarding 
the proposed revisions to the good faith requirements, and whether the 
current tolerance rules have sufficiently improved the reliability of 
the estimates that creditors give consumers, while preserving 
creditors' flexibility to respond to unanticipated changes that occur 
during the loan process. The Bureau solicited comment on the frequency, 
magnitude, and causes of settlement cost increases. The Bureau also 
requested comment on any alternatives to the proposal that would 
further the purposes of TILA, RESPA, and the Dodd-Frank Act and provide 
consumers with more useful disclosures.
Comments
    Consumer advocacy groups did not provide comments on the proposed 
application of the zero percent tolerance category of settlement costs 
to fees paid to affiliates of the creditor and fees paid to settlement 
service providers that creditors require consumers to use.\202\ But the 
Bureau received numerous comments from industry commenters representing 
a wide range of segments of the mortgage origination industry on both 
the Bureau's rationale to expand the zero percent tolerance category of 
settlement costs to fees paid to lender affiliates and lender-required 
providers and the specific provisions of Sec.  1026.19(e)(3). 
Provision-specific comments are addressed in the section-by-section 
analysis of each subsection of Sec.  1026.19(e)(3), as applicable. This 
general section-by-section analysis of Sec.  1026.19(e)(3) addresses 
comments received on the Bureau's rationale to expand the zero percent 
tolerance category of settlement costs to fees paid to lender 
affiliates and lender-required providers.
---------------------------------------------------------------------------

    \202\ Two national consumer advocacy groups, however, provided 
comments on the aspect of the proposal that would have kept prepaid 
interest in the category of settlement costs not subject to 
tolerances at all. For a detailed discussion of this issue, see the 
section-by-section analysis of Sec.  1026.19(e)(3)(iv) below.
---------------------------------------------------------------------------

    Industry commenters expressed mixed views on industry's ability to 
adapt to the change in the zero percent tolerance category of 
settlement charges, the impact of the change on competition and 
consumers, and alternatives. As discussed in more detail below, 
industry commenters questioned the Bureau's belief about the ability of 
creditors to accurately estimate the charges imposed by its affiliates 
and lender-required providers. Some commenters asserted that the Bureau 
was basing its proposal on anecdotal evidence, rather than systemic 
data. Commenters, including a large bank commenter, also questioned the 
Bureau's legal authority to establish a zero percent tolerance category 
for any settlement charge. They asserted that RESPA permits a creditor 
to provide consumers an estimate of settlement costs, rather than 
requiring a creditor to disclose the exact amount of a settlement 
charge early in the loan origination process.
    Compliance impact. Commenters expressed mixed views about the 
ability of industry to comply with the expansion of the zero percent 
tolerance category of settlement charges to

[[Page 79819]]

include fees paid to lender affiliates and lender-required settlement 
service providers. A regional bank holding company stated that it 
supported the accuracy thresholds on the Loan Estimate, but that 
industry should be given at least 18 months to comply with the new 
rules.
    Many industry commenters asserted that the proposed tolerance rules 
will be disruptive and costly because it would be difficult to estimate 
fees paid to lender-affiliates and lender-required service providers 
accurately early in the loan origination process. The SBA argued that 
the Bureau should maintain the current ten percent cushion for third-
party charges because the small entities that participated in the Small 
Business Review Panel process stated that they were currently able to 
comply with HUD's 2008 RESPA Final Rule. A number of the commenters 
asserted that the current tolerance rules have largely solved the 
problem of large settlement cost increases at closing and that if the 
Bureau did not have evidence of widespread or systemic abuse of 
consumers, the Bureau should not change the current rules.
    Industry commenters expressed concern about the impact of 
unforeseen circumstances that could change the cost estimates quoted on 
the original Loan Estimate, and about a creditor's ability to estimate 
affiliate fees and lender-required service provider fees. Some 
commenters suggested that unforeseen circumstances are especially 
likely to be an issue in rural areas where properties are often unique, 
title work frequently includes more variables, and appraisal costs vary 
because it is difficult to gather comparable sales data. Other 
commenters suggested that costs may be difficult to estimate initially 
if the creditor is working outside of the creditor's market and lacks 
familiarity with the prices charged by local settlement service 
providers.
    Commenters also expressed concern that the original estimates could 
change because of overall market forces, such as market-based price 
fluctuations or a change in the availability of a lender-required 
service provider. A national provider of title insurance and settlement 
services asserted that even under well-defined vendor agreements for 
services such as providing an appraisal, obtaining a flood risk 
determination, or obtaining the consumer's credit report, fees may vary 
slightly from time to time. Some commenters, including industry trade 
associations representing banks and mortgage lenders, suggested that 
section 8 of RESPA, the statutory provision in RESPA that prohibits 
kickbacks, referral fees and similar considerations being exchanged in 
the context of referrals for settlement service business, is one of the 
reasons that explains why the creditor is unable to control settlement 
service fees.
    Ability to estimate affiliates' fees. Several industry commenters, 
including mortgage lenders, a credit union, an industry trade 
association representing affiliated real estate businesses, and an 
industry association representing realtors, expressed support for the 
Bureau's rationale for including fees paid to affiliates in the zero 
percent tolerance category. They agreed that affiliated business 
relationships facilitate greater communication and coordination than a 
relationship between independent entities operating at arm's length. 
But other commenters expressed concern that unless the creditor-
affiliate relationship is one based on actual control of the creditor 
over the affiliate, creditors do not control the affiliates' cost.
    Ability to estimate fees of lender-required providers. Many 
commenters cited the lack of knowledge about a non-affiliated service 
provider's fees and control over the provider, as the primary reason 
they are concerned about expanding the zero percent tolerance category 
of settlement charges to include fees paid to lender-required 
providers. As noted above, some mortgage lenders, a credit union, and 
an industry trade association representing realtors supported the 
Bureau's rationale for including affiliate fees in the zero percent 
tolerance category. But they expressed concern that the same level of 
knowledge of and control over costs does not exist between creditors 
and unaffiliated service providers, even in situations where the 
creditor selects the unaffiliated service providers.
    Competitive impact. Commenters also expressed mixed views about the 
competitive impact of the expansion of the zero percent tolerance 
category of settlement fees. An industry trade association representing 
independent land title agents and a title company commenter expressed 
support for the proposal's potential to encourage consumer shopping, 
and thereby increase competition. Some commenters, including the SBA 
and several industry trade associations representing banks and mortgage 
lenders expressed concerns that the proposed rule would increase 
affiliation and decrease competition, thereby harming small, 
independent settlement service providers.
    But other commenters believed that there would be a decrease in 
affiliation. An industry trade association representing Federally-
charted credit unions expressed concern that although the expansion may 
decrease affiliation, well-established settlement service providers, 
rather than small entities, will reap the benefits from de-affiliation, 
because creditors would be incented to seek services from established 
providers that can offer fee guarantees or provide reimbursements if 
tolerance thresholds are crossed. A Federal credit union commenter 
expressed concern that small creditors may be negatively impacted by 
the proposed rules because large creditors can use affiliation to 
control costs and provide accurate estimates, while small creditors 
would have to rely on unaffiliated settlement service providers that 
charge fees small creditors do not manage or control.
    As noted above, several industry commenters supported the Bureau's 
rationale for the inclusion of fees paid to lender affiliates. But the 
commenters expressed concern about whether the change would lead to an 
unfair marketplace if only fees paid to lender-required affiliates were 
subject to the zero percent tolerance rule. The commenters asserted 
that the same tolerance rules should apply to affiliated and 
unaffiliated service providers equally.
    Impact on consumers. The proposal's potential impact on consumers 
also generated mixed reactions from industry. One large bank commenter 
stated that imposing a zero percent tolerance rule when the consumer is 
not given a choice in selecting the service provider and the creditor 
has a degree of control over the provider is the right thing to do for 
the consumer. An industry trade association representing independent 
land title agents and a title company commenter supported expanding the 
zero percent tolerance category of fees to include fees paid to 
affiliates because they believed that it would encourage consumer 
shopping and promote consumer choice. The trade association commenter 
stated that it conducted a survey of its members and found that over 
half of the respondents thought that it was appropriate to subject 
affiliate fees to a zero percent tolerance on cost increases.
    In joint comments, associations representing State consumer 
financial services regulators expressed support for the expansion. The 
commenters stated that applying the zero percent tolerance rule to fees 
of lender affiliates and lender-required service providers will ensure 
consumers are not subject to abusive practices that were prevalent in 
the past, and it will additionally incent creditors to provide 
consumers with accurate Loan Estimates and Closing

[[Page 79820]]

Disclosures. The commenters stated that the proposal should lead to a 
healthier residential mortgage market because better informed consumers 
provided with accurate disclosures make better choices and are less 
likely to default, and creditors will have a less cumbersome and more 
certain process, reducing the risk of error and uncertainty associated 
with the disclosure process. The commenters, however, stated that the 
tolerance thresholds should be adjusted if they cause closings to be 
delayed unnecessarily because industry has raised concerns about 
possible disruptions and inconveniences to consumers flowing from the 
combination of the Bureau's proposed changes to the tolerance rules and 
the timing requirement for delivery of the Loan Estimate.
    Many industry commenters asserted that expanding the zero percent 
tolerance category of settlement costs to include fees paid to lender 
affiliates and lender-required service providers would harm consumers. 
They asserted that if creditors are held to a zero percent tolerance 
for fees paid to lender affiliates and lender-required nonaffiliated 
service providers, creditors may either increase their loan origination 
costs or quote higher third-party fees as a hedge against losses if the 
actual cost for a settlement service in the zero percent tolerance 
category charged at settlement is greater than the cost estimate 
disclosed on the Loan Estimate. A State housing finance agency 
expressed concern that overestimating third-party fees would harm 
consumers, because it would make the cost of the loan look higher than 
it actually is to consumers. An industry trade association representing 
community banks expressed concern that creditors may collude on prices 
with settlement service providers because the proposal creates pressure 
to disclose accurate cost estimates, and such collision would 
ultimately harm consumers.
    As noted above, industry trade associations representing banks and 
mortgage lenders suggested creditors may increase affiliation to manage 
settlement costs. The commenters asserted this, in turn, may mean less 
credit availability for consumers because increased affiliation would 
raise the risk of creditors exceeding the points and fees thresholds 
for qualified mortgages under the Bureau's 2013 ATR Final Rule,\203\ 
and for qualified residential mortgages under a credit risk retention 
proposal issued by other Federal regulators.\204\ The SBA expressed 
concern that the negative impact of affiliation on small, independent 
service providers may harm consumers by decreasing competition.
---------------------------------------------------------------------------

    \203\ 78 FR 6408 (Jan. 30, 2013).
    \204\ 76 FR 24090 (Apr. 29, 2011). On August 29, 2013, the 
agencies announced in a joint press release that a revised NPRM on 
the rule has been issued. See e.g., Board of Governors of the 
Federal Reserve System, et al. Agencies revise proposed risk 
retention rule, available at http://www.federalreserve.gov/newsevents/press/bcreg/20130828a.htm (last accessed Aug. 29, 2013).
---------------------------------------------------------------------------

    Still other commenters, including the SBA and industry trade 
associations representing banks, argued that the proposed application 
of the zero percent category of settlement costs would cause an 
increase in the number of revised Loan Estimates being issued. They 
asserted that this, in turn, could increase consumer confusion, cause 
information overload, create closing delays, and increase the cost of 
obtaining a loan because creditors would pass the cost of producing the 
revised Loan Estimates to consumers.
    Alternatives. Commenters presented a number of alternatives, 
including retaining the current tolerance rules. Several commenters 
suggested that the Bureau narrowly define the term ``affiliate'' so 
that the zero percent tolerance category of fees would only be expanded 
to include fees paid to affiliates in which the creditor has a majority 
ownership interest. As noted above, several commenters asserted that 
the Bureau should treat affiliated and unaffiliated settlement service 
providers equally. One such commenter suggested that the Bureau subject 
both affiliate provider fees and non-affiliated provider fees to a five 
percent tolerance on cost increases.
    Still other industry commenters advocated for more fundamental 
changes. A number of mortgage lenders and mortgage broker commenters 
submitted similar comments asserting that the current tolerance rules 
generally caused consumer harm, and it would be better for mortgage 
transactions to be subject to the rules that applied before HUD's 2008 
RESPA Final Rule became effective. A national industry association 
representing mostly mortgage brokers stated that a materiality 
standard, which measures the amount of a cost increase against the loan 
amount, would be a better way to address limitations on settlement cost 
increases.
    A State association representing escrow agents asserted that 
tolerance rules should only apply to loan costs. If a consumer must pay 
the same fee in a cash transaction, then the fee should not be subject 
to limitations on increases. Some commenters, including industry trade 
associations representing banks and mortgage lenders, requested that 
the Bureau permit fees in the zero percent tolerance category to 
increase so long as the aggregate amount of these fees do not increase. 
The commenters stated that the result would streamline the disclosures 
and consumers would not be harmed because the total amount the consumer 
pays would be the same.
    Finally, industry trade associations representing banks and 
mortgage lenders asserted that the Bureau should consider whether to 
offer lenders an exemption from compliance with section 8 of RESPA so 
lenders could negotiate with third-party settlement service providers 
and offer consumers settlement service packages with guaranteed prices. 
The trade associations representing banks and mortgage lenders 
expressed the view that relief from section 8 liability is needed so 
creditors do not accidentally exceed the points and fees thresholds for 
qualified mortgages and qualified residential mortgages.
Final Rule
    The Bureau has considered these comments, but is finalizing the 
proposed expansion of the current zero percent tolerance category of 
settlement costs to affiliate fees and fees of lender-required service 
providers. As discussed in greater detail below in the section-by-
section analysis of Sec.  1026.19(e)(3)(i), the final rule generally 
provides that any affiliate charge or charge of a lender-required 
provider paid by or imposed on the consumer that exceeds the amount for 
such charge estimated on the disclosures required by Sec.  
1026.19(e)(1)(i) is not in good faith, subject to legitimate cost 
revisions such as changed circumstances or borrower-requested changes.
    As noted, several industry commenters expressed support for the 
Bureau's rationale to expand the zero percent tolerance category of 
settlement costs to fees of lender affiliates. The Bureau also does not 
believe that expanding the zero percent tolerance category will 
negatively impact credit availability. As previously noted, some 
industry trade associations suggested creditors may increase 
affiliation to manage settlement costs. The commenters asserted this, 
in turn, may mean less credit availability for consumers, because 
increased affiliation increase the risk that mortgages would not be 
able to be qualified mortgages or qualified residential mortgages 
because creditors would exceed the points and fees thresholds. Also as 
noted above,

[[Page 79821]]

some commenters suggested that providing industry with relief from 
RESPA section 8 liability would be an effective way to solve the 
problem, because creditors and settlement service providers could agree 
on prices in advance and avoid exceeding the points and fees threshold.
    The Bureau believes that the substantial communication that already 
exists between creditors and their affiliates would enable creditors to 
determine, early in the mortgage origination process, whether a loan 
would exceed the points and fees threshold tests. Accordingly, the 
Bureau is not persuaded that the proposal would negatively impact 
credit availability. The Bureau also believes that the presence of this 
points and fees threshold may incent creditors to strengthen the 
already-substantial communication with their affiliates to obtain 
affiliate cost information with greater accuracy early in the process, 
which would, in turn, facilitate compliance with the final rule. In 
addition, the Bureau does not have information that the lack of such an 
exemption has had any detrimental effect on creditors' ability to 
comply with the current tolerance rules under Regulation X.
    Further, there is a longstanding debate about whether RESPA section 
8 liability casts a shadow over creditors and settlement service 
providers such that it hinders the ability of creditors to comply with 
tighter tolerances for settlement charges. As noted above, some 
industry trade associations suggested that creditors and settlement 
service providers should be provided with relief from section 8 
liability if they could guarantee the prices of certain settlement 
services. HUD proposed a similar solution in 2002,\205\ and a strong 
backlash from independent settlement service providers and consumer 
advocacy groups ensued.\206\
---------------------------------------------------------------------------

    \205\ 67 FR 49134 (Jul. 29, 2002).
    \206\ 73 FR 14030, 14032 (Mar. 14, 2008).
---------------------------------------------------------------------------

    Additionally, the Bureau believes that if a creditor denies 
consumers the opportunity to influence the quality or cost of 
settlement services through shopping by requiring consumers to use 
lender-selected settlement service providers, then the creditor should 
take responsibility for making accurate estimations and assuming the 
risk of under-estimation. As noted above, one large national provider 
of title insurance and settlement services stated that creditors enter 
into ``well-defined'' vendor agreements with lender-required service 
providers. The Bureau believes that the existence of such agreements 
supports the Bureau's rationale that creditors are in a superior 
position of knowledge with respect to the expected costs of the 
services of lender-required providers. The Bureau acknowledges that 
unforeseen circumstances and market forces could render estimates of 
settlement services inaccurate. To the extent that the variation is due 
to a changed circumstance or borrower-requested change, the final rule 
permits a creditor to revise the cost estimate it originally provided 
to the consumer. The Bureau recognizes that the ten percent cushion 
could help creditors and settlement service providers manage the risk 
of price fluctuations associated with market forces. But the Bureau 
believes creditors' ability to obtain information about their 
affiliate's or preferred provider's pricing means that creditors do not 
need the ten percent cushion under the current tolerance rules to 
manage such risk, because the final rule permits revisions based on 
legitimate changed circumstances and borrower-requested changes.
    With respect to the concerns expressed by some commenters about the 
competitive consequences of applying the zero percent tolerance 
category to affiliate fees and fees paid to lender-required service 
providers, the Bureau does not believe that this final rule will 
threaten competition by pushing small, independent settlement service 
providers out of business. The Bureau believes that this final rule may 
actually enhance competition in the market for settlement service 
providers. If a creditor does not want the zero percent tolerance rule 
to apply to the cost of a lender-required service, a creditor must 
permit the consumer to select the settlement service provider for that 
service, and the service provider cannot be an affiliate of the 
creditor. Further, if the creditor permits a consumer to select the 
settlement service provider, the creditor must provide the consumer 
with a written list identifying available providers, which as 
illustrated in the model written list the Bureau is finalizing in this 
final rule as form H-27 of appendix H to Regulation Z, would expressly 
disclose to the consumer that the consumer may choose a different 
settlement service provider. The Bureau believes that these provisions 
would promote consumer shopping and competition among settlement 
service providers.
    The Bureau also believes that the structural flaws in HUD's 2008 
RESPA Final Rule the Bureau identified in the proposal and described in 
this section-by-section analysis justify the Bureau taking this action 
in this final rule, even though the Bureau's empirical support rests on 
anecdotal evidence, rather than systemic data, because of the 
significant harm that can result from increased closing costs to 
consumers. Further, with respect to the argument that RESPA permits a 
creditor to provide consumers with an estimate of settlement costs, 
rather than requiring a creditor to disclose the exact amount of a 
settlement charge early in the loan origination process, the Bureau 
observes that the final rule incorporates the current tolerance rules' 
exceptions (i.e., the amount of settlement charges subject to the zero 
percent tolerance category, as well as the ten percent tolerance 
category, may change due to events such as changed circumstances and 
borrower-requested changes).
    With respect to the argument that an unintended consequence of the 
Bureau's proposal would be that creditors would increase their 
origination charges to compensate for increased costs due to settlement 
charges exceeding the expanded zero percent tolerance category of 
settlement costs, the Bureau doubts that creditors will, in fact, incur 
such increased costs for the reasons already discussed and also 
believes that competition among creditors should be an effective 
countervailing force to prevent creditors using affiliates from 
charging higher interest rates on their loans. The Bureau also doubts 
that the final rule will pressure creditors and settlement service 
providers to collude on prices or to limit business relationships to 
ones with established settlement service providers that can offer price 
guarantees or provide reimbursements if tolerance thresholds are 
crossed. The Bureau believes that current restrictions under section 8 
of RESPA on kickbacks, referral fees, and similar considerations should 
deter such behavior.
    Some commenters expressed concern that creditors would have to 
issue more revised Loan Estimates, and the Bureau acknowledges that 
this is a possibility. However, the Bureau believes that this result is 
adequately counter-balanced by the benefits that will flow to consumers 
from receiving more accurate cost estimates and better enabling 
consumer shopping. The Bureau believes that adopting the proposal would 
mean that consumers would have more certainty about their settlement 
costs early in the loan process, which can enhance the ability of 
consumers to shop among creditors. The Bureau does not believe that 
expanding the zero percent tolerance category as proposed would delay 
closings, which concerned some commenters, because as noted above, 
creditors would be able to revise cost

[[Page 79822]]

estimates subject to a tolerance in the event of a changed circumstance 
or borrower-requested change. In addition, as discussed in greater 
detail below in the section-by-section analysis of Sec.  1026.19(e)(4), 
this final rule does not prohibit disclosing revised costs that have 
changed due to a changed circumstance or borrower-requested change on 
the Closing Disclosure provided under Sec.  1026.19(f)(1)(i).
    The Bureau does not believe that the final rule must be adjusted to 
subject all affiliated and unaffiliated businesses to a zero percent 
tolerance because it does not believe that this final rule will treat 
affiliated businesses unfairly. As discussed above, the application of 
the zero percent tolerance category of settlement charges to affiliated 
settlement service providers and lender-required unaffiliated 
settlement service providers is based on the premise that in both 
cases, creditors that use affiliates or unaffiliated providers they 
require are in a superior position of knowledge with respect to the 
expected costs of the services of those providers and can provide more 
accurate disclosures than they are with respect to the expected costs 
of services of unaffiliated and non-required providers. It is not based 
merely on the premise that creditors should be able to estimate more 
accurately all settlement charges. Additionally, because the Bureau's 
justification is not primarily based on the existence of actual 
control, the Bureau does not believe that ``affiliates'' should be 
defined to include only entities in which the creditor holds a majority 
ownership interest.
    The Bureau also does not believe that fundamental changes must be 
made to the current tolerances framework on charges for settlement 
services. As noted above, the current tolerance rules resulted from 
HUD's ten-year-long investigation of problems in the settlement 
services industry. For reasons discussed above, the Bureau believes 
that it is reasonable to expect creditors to estimate affiliate fees 
and fees paid to service providers required by the creditors as if they 
were estimating their own fees. In addition, such accurate estimates 
will benefit consumers because accurate estimates will enable consumers 
to make more informed comparisons among different loans, thus 
facilitating shopping. Therefore, the Bureau does not believe it is 
appropriate to permit fees in the zero percent tolerance category to 
increase so long as the aggregate amount of these fees does not 
increase. Further, for the same reasons, the Bureau does not believe 
other alternative fundamental changes raised in the comments, such as 
setting limitations on cost increases based on the materiality of the 
change, changing the zero percent tolerance rule to a five percent 
tolerance rule, or limiting the application of the tolerance rules to 
loan costs, are appropriate.
    Legal authority. The Bureau is adopting in this final rule the 
expansion of the zero percent tolerance category generally as proposed, 
with the modifications described below, pursuant to its authority to 
prescribe standards for ``good faith estimates'' under TILA section 128 
and RESPA section 5, as well as its general rulemaking, exception, and 
exemption authorities under TILA sections 105(a) and 121(d), RESPA 
section 19(a), section 1032(a) of the Dodd-Frank Act, and, for 
residential mortgage loans, section 1405(b) of the Dodd-Frank Act and 
section 129B(e) of TILA.
    For the reasons discussed above, the Bureau believes that expanding 
the zero percent tolerance category of settlement charges to include 
affiliate charges and charges of lender-required service providers is 
consistent with TILA's purpose in that it will ensure that the cost 
estimates are more meaningful and better inform consumers of the actual 
costs associated with obtaining credit. The Bureau also believes that 
this final rule will effectuate the statute's goals by ensuring more 
reliable estimates, which will increase the level of shopping for 
mortgage loans and foster honest competition for prospective consumers 
among financial institutions. The Bureau further believes that this 
final rule will prevent potential circumvention or evasion of TILA by 
penalizing underestimation to gain a competitive advantage in 
situations where TILA requires good faith.
    As noted above, section 121(d) of TILA generally authorizes the 
Bureau to adopt tolerances necessary to facilitate compliance with the 
statute, provided such tolerances are narrow enough to prevent 
misleading disclosures or disclosures that circumvent the purposes of 
the statute. The Bureau has considered the purposes for which it may 
exercise its authority under TILA section 121(d) and, based on that 
review and for reasons discussed above, the Bureau believes that the 
tolerance categories adopted in this final rule are appropriate, will 
facilitate compliance with the statute by providing bright-line rules 
for the determination of ``good faith'' based on the knowledge of costs 
that creditors have, or reasonably should have, and prevent misleading 
disclosures. Additionally, the Bureau believes that the final rule is 
in the interest of consumers and in the public interest, consistent 
with Dodd-Frank Act section 1405(b), because providing consumers with 
more accurate estimates of the costs of the mortgage loan transaction 
will improve consumer understanding and awareness of the mortgage loan 
transaction through the use of disclosure. Section 129B(e) of TILA 
generally authorizes the Bureau to adopt regulations prohibiting or 
conditioning terms, acts, or practices relating to residential mortgage 
loans that are not in the interest of the borrower. The Bureau has 
considered the purposes for which it may exercise its authority under 
TILA section 129B(e). Based on that review and for reasons discussed 
above, the Bureau believes that the regulations are appropriate because 
unreliable estimates are not in the interest of the borrower.
    Section 19(a) of RESPA authorizes the Bureau to prescribe 
regulations and make interpretations to carry out the purposes of 
RESPA, which include more effective advance disclosure of settlement 
costs. The Bureau has considered the purposes for which it may exercise 
its authority under RESPA section 19(a). Based on that review and for 
reasons discussed above, the Bureau believes that the final rule is 
appropriate. It will ensure more effective advance disclosure of 
settlement costs by requiring creditors to disclose accurate estimates 
when such creditors are in a position to do so. Contrary to assertions 
made by certain commenters about the Bureau's authority to impose zero 
percent tolerance on any settlement charge, the Bureau's authority is 
broad and, as noted above, resides in a number of statutes.
19(e)(3)(i) General Rule
    As discussed above, Regulation X currently provides that the 
amounts imposed for certain settlement services and transfer taxes may 
not exceed the amounts included on the RESPA GFE, unless certain 
exceptions are met. The items included under this category are 
generally limited to charges paid to creditors and brokers, in addition 
to transfer taxes. The Bureau proposed to incorporate the zero percent 
tolerance rule in Regulation X in proposed Sec.  1026.19(e)(3)(i). 
Further, as discussed above in the general section-by-section analysis 
of Sec.  1026.19(e)(3), the Bureau proposed to expand the scope of the 
zero percent tolerance category to include fees paid to affiliates and 
lender-required service providers. Legitimate cost revisions when an 
unexpected event occurs, such as a changed circumstance or a change

[[Page 79823]]

requested by the consumer, would permit fees subject to the zero 
percent tolerance to increase from their initial estimates.
    Proposed Sec.  1026.19(e)(3)(i) would have provided that the 
charges paid by or imposed on the consumer may not exceed the estimated 
amounts of those charges required to be disclosed under Sec.  
1026.19(e)(1)(i), subject to permissible reasons for revision provided 
in Sec.  1026.19(e)(3)(iv), and except as otherwise provided under 
Sec.  1026.19(e)(3)(ii) and (iii). Proposed comment 19(e)(3)(i)-1 would 
have explained that Sec.  1026.19(e)(3)(i) imposes the general rule 
that an estimated charge disclosed pursuant to Sec.  1026.19(e) is not 
in good faith if the charge paid by or imposed on the consumer exceeds 
the amount originally disclosed. Although proposed Sec.  
1026.19(e)(3)(ii) and (e)(3)(iii) would have provided exceptions to the 
general rule for certain types of charges, the comment would have 
explained that those exceptions generally would not apply to: (1) Fees 
paid to the creditor; (2) fees paid to a broker; (3) fees paid to an 
affiliate of the creditor or a broker; (4) fees paid to an unaffiliated 
third party if the creditor did not permit the consumer to shop for a 
third party service provider; and (5) transfer taxes.
    Proposed comment 19(e)(3)(i)-2 would have provided guidance on the 
issue of whether an item is ``paid to'' a particular person. In the 
mortgage loan origination process, individuals often receive payments 
for services and subsequently pass those payments on to others. 
Similarly, individuals often pay for services in advance of the real 
estate closing and subsequently seek reimbursement from the consumer. 
This proposed comment would have clarified that fees are not considered 
``paid to'' a person if the person does not retain the funds and would 
have provided examples. Proposed comment 19(e)(3)(i)-3 referred to 
other provisions addressing the distinction between transfer taxes and 
recording fees.
    Proposed comment 19(e)(3)(i)-4 would have provided examples 
illustrating the good faith requirement in the context of specific 
credits, rebates, or reimbursements. The proposed comment would have 
clarified that an item identified, on the disclosures provided pursuant 
to Sec.  1026.19(e), as a payment from a creditor to the consumer to 
pay for a particular fee, such as a credit, rebate, or reimbursement 
would not be subject to the good faith determination requirements in 
Sec.  1026.19(e)(3)(i) or (ii) if the increased specific credit, 
rebate, or reimbursement actually reduced the cost to the consumer. The 
proposed comment would have further clarified that specific credits, 
rebates, or reimbursements could not be disclosed or revised in a way 
that would otherwise violate the requirements of Sec.  1026.19(e)(3)(i) 
and (ii). The proposed comment would have illustrated these 
requirements with examples.
    Proposed comment 19(e)(3)(i)-5 would have clarified how to 
determine ``good faith'' in the context of lender credits. The proposed 
comment would have explained that the disclosure of ``lender credits,'' 
as identified in Sec.  1026.37(g)(6)(ii), is required by Sec.  
1026.19(e)(1)(i). The proposed comment would have also explained that 
lender credits are payments from the creditor to the consumer that do 
not pay for a particular fee on the disclosures provided pursuant to 
Sec.  1026.19(e)(1)(i). The proposed comment would have further 
clarified that these non-specific credits are negative charges to the 
consumer--as the lender credit decreases the overall cost to the 
consumer increases. Thus, under the proposal an actual lender credit 
provided at the real estate closing that is less than the estimated 
lender credit provided pursuant to Sec.  1026.19(e)(1)(i) would have 
been an increased charge to the consumer for purposes of determining 
good faith under Sec.  1026.19(e)(3)(i). The proposed comments would 
have illustrated these requirements with examples. The proposed comment 
would have also included a reference to Sec.  1026.19(e)(3)(iv)(D) and 
comment 19(e)(3)(iv)(D)-1 for a discussion of lender credits in the 
context of interest rate dependent charges.
Comments
    The Bureau received a number of comments on its proposal to 
incorporate aspects of the current zero percent tolerance under 
Regulation X in this final rule. The comments addressed the Bureau's 
proposal to keep transfer taxes in the settlement costs subject to the 
zero percent tolerance category, the treatment of ``no cost'' loans, 
the treatment of lender credits and specific credits, and the 
definition of ``affiliate.''
    A number of industry commenters asserted that transfer taxes should 
not be subject to a zero percent tolerance. The commenters included 
industry trade associations representing banks and mortgage lenders, 
individual large banks, community banks, mortgage lenders, mortgage 
brokers, a rural creditor, and settlement and title agents. The 
commenters asserted that transfer taxes are neither paid to, nor set 
by, the creditor. The commenters asserted that the amounts charged for 
transfer taxes vary among different State and local jurisdictions, 
provisions of the real estate purchase and sale contract, and 
transaction-specific factors, like changes in the loan amount, and 
locality-specific factors, such as local law or custom that determines 
if the seller or consumer is ultimately responsible for paying the 
transfer tax.
    Some industry commenters, including industry trade associations 
representing banks and mortgage lenders, asserted that ``no cost'' 
loans should not be subject to tolerance rules because the creditor 
finances the consumer's closing costs. Industry commenters also 
expressed confusion about the treatment of lender and specific credits. 
They sought various clarifications about specific credits, including 
how to determine when a creditor has committed a tolerance violation 
regarding specific credits, how to disclose these credits on the Loan 
Estimate, and whether changed circumstances would apply to lender 
credits and specific credits.
    A State manufactured housing trade association sought an exemption 
that would permit creditors to decrease the amount of lender credits 
actually provided to the consumer at closing without causing a 
tolerance violation in transactions subject to the Federal Housing 
Administration's streamlined refinancing program and other similar 
programs. The trade association commenter explained that the program 
guidelines limit the amount of cash a creditor can pay to the consumer 
at closing. Accordingly, the creditor may need to reduce the amount of 
the actual lender credit at the real estate closing to remain in 
compliance with program guidelines. The trade association commenter 
stated that if the reduction was considered a tolerance violation, 
creditors may respond by reducing the number of rate lock offers on 
these transactions.
    Some commenters, including an individual title company commenter, 
suggested that the Bureau define the term ``affiliate.'' Lastly, the 
Bureau received requests from some title company commenters that sought 
an exemption from the proposed general rule with respect to the 
treatment of payments that affiliated title companies receive at 
closing that are disbursed to service providers not affiliated with the 
lender as payment for services performed by the unaffiliated service 
providers on behalf of the affiliated title companies.

[[Page 79824]]

Final Rule
    The Bureau has considered the comments, and is adopting Sec.  
1026.19(e)(3)(i) substantially as proposed. Section 1026.19(e)(3)(i) 
provides that an estimated closing cost disclosed pursuant to Sec.  
1026.19(e) is in good faith if the charge paid by or imposed on the 
consumer does not exceed the amount originally disclosed under Sec.  
1026.19(e)(1)(i), subject to permissible reasons for revision permitted 
under Sec.  1026.19(e)(3)(iv), such as a changed circumstance or a 
borrower-requested change, and except as otherwise provided under Sec.  
1026.19(e)(3)(ii) and (iii).
    The adoption of the final rule means that for purposes of 
conducting the good faith analysis, the creditor compares the actual 
charge paid by or imposed on the consumer to the estimated amount 
disclosed in the original Loan Estimate. If the originally estimated 
amount changed due to one of the valid reasons for revision set forth 
in this final rule, e.g., a changed circumstance or borrower-requested 
change, the creditor may compare the actual charge paid by or imposed 
on the consumer with the revised estimated amount, provided that the 
creditor provides the revised amount pursuant to the redisclosure 
requirements in this final rule, discussed in greater detail below in 
the section-by-section analysis of Sec.  1026.19(e)(4). The Bureau has 
adjusted the text of Sec.  1026.19(e)(3)(i) to harmonize the regulatory 
text with the related commentary.
    Comment 19(e)(3)(i)-1 is adopted substantially as proposed, with 
minor changes to enhance clarity. The Bureau has added a new comment 
19(e)(3)(i)-2 to explain that for purposes of Sec.  1026.19(e), a 
charge ``paid by or imposed on the consumer'' refers to the final 
amount for the charge paid by or imposed on the consumer at 
consummation or settlement, whichever is later. As discussed in greater 
detail in the section-by-section discussion of Sec.  1026.19(f)(1)(ii), 
some industry commenters expressed concern about the ability of 
creditors to determine the final cost for certain settlement services 
three business days before consummation, because in some jurisdictions, 
settlement does not occur until after consummation, and costs could 
change between consummation and settlement. The Bureau understands that 
recording fees, which are subject to the ten percent tolerance 
category, are an example of such costs that could change between 
consummation and settlement.
    The Bureau is concerned that by not clarifying what a charge ``paid 
by or imposed upon the consumer'' means, the proposed rule would not 
have adequately accounted for changes in actual closing costs in 
jurisdictions where consummation and settlement occur at different 
times, which in turn, could complicate the creditor's good faith 
analysis under Sec.  1026.19(e)(3)(i) and (ii). Accordingly, the Bureau 
believes that compliance will be facilitated if the Bureau clarifies 
that for purposes of Sec.  1026.19(e)(3), a charge ``paid by or imposed 
on the consumer'' refers to the final amount for the charge paid by or 
imposed on the consumer at consummation or settlement, whichever is 
later. The comment further explains that ``consummation'' is defined in 
Sec.  1026.2(a)(13), and that ``settlement'' is defined in Regulation 
X, 12 CFR 1024.2(b). The Bureau notes that current Regulation Z refers 
to ``settlement'' with respect to the determination of whether a 
finance charge is a prepaid finance charge under Sec.  1026.2(a)(23) 
(see comment 2(a)(23)-2.ii) and the timing of corrected disclosures for 
transactions secured by a consumer's interest in a timeshare plan under 
Sec.  1026.19(a)(5)(iii) (see comment 19(a)(5)(iii)-1). Comment 
19(e)(3)(i)-2 also provides illustrative examples. The Bureau further 
notes that final Sec.  1026.19(f)(2)(iii) generally requires the 
creditor to provide a revised Closing Disclosure after consummation if 
the Closing Disclosures provided pursuant to Sec.  1026.19(f)(1)(i) 
becomes inaccurate after consummation.
    The Bureau is making a modification to proposed comment 
19(e)(3)(i)-2, renumbered as comment 19(e)(3)(i)-3, to facilitate 
compliance. Proposed comment 19(e)(3)(i)-2 did not include an 
illustration of whether transfer taxes and recording fees are 
considered ``paid to'' the creditor for purposes of Sec.  1026.19(e). 
As adopted, comment 19(e)(3)(i)-2 provides such an illustration. The 
Bureau is finalizing proposed comment 19(e)(3)(i)-3, renumbered as 
comment 19(e)(3)(i)-4, substantially as proposed to streamline the 
references to commentary to Sec.  1026.37(g)(1) that discuss the 
differences between transfer taxes and recording fees.
    The Bureau is not finalizing proposed comments 19(e)(3)(i)-4 and -5 
on the treatment of lender credits and specific credits in 
consideration of the comments received. Instead, the Bureau is adopting 
new comment 19(e)(3)(i)-5 to clarify that the final rule is 
incorporating the guidance on lender credits under current Regulation 
X. The Bureau acknowledges industry's concern that the Loan Estimate 
does not permit lender credits and specific credits to be separately 
disclosed. But under current Regulation X, lender credits and specific 
credits are not separately disclosed on the RESPA GFE. Accordingly, the 
Bureau believes that maintaining the status quo on the treatment of 
lender credits and specific credits will reduce industry confusion and 
facilitate implementation of this final rule.
    New comment 19(e)(3)(i)-5 explains that the disclosure of ``lender 
credits,'' as identified in Sec.  1026.37(g)(6)(ii), is required by 
Sec.  1026.19(e)(1)(i), and that ``lender credits,'' as identified in 
Sec.  1026.37(g)(6)(ii), represents the sum of non-specific lender 
credits and specific lender credits. Non-specific lender credits are 
generalized payments from the creditor to the consumer that do not pay 
for a particular fee. Specific lender credits are specific payments, 
such as a credit, rebate, or reimbursement, from a creditor to the 
consumer to pay for a specific fee. Non-specific lender credits and 
specific lender credits are negative charges to the consumer. The 
actual total amount of lender credits, whether specific or non-
specific, provided by the creditor that is less than the estimated 
``lender credits'' identified in Sec.  1026.37(g)(6)(ii) and disclosed 
pursuant to Sec.  1026.19(e) is an increased charge to the consumer for 
purposes of determining good faith under Sec.  1026.19(e)(3)(i). 
Comment 19(e)(3)(i)-5 also provides illustrations of these 
requirements. The comment also references Sec.  1026.19(e)(3)(iv)(D) 
and comment 19(e)(3)(iv)(D)-1 for a discussion of lender credits in the 
context of interest rate dependent charges. With respect to whether a 
changed circumstance or borrower-requested change can apply to the 
revision of lender credits, the Bureau believes that a changed 
circumstance or borrower-requested change can decrease such credits, 
provided that all of the requirements of Sec.  1026.19(e)(3)(iv), 
discussed below, are satisfied.
    The Bureau is also adding new comment 19(e)(3)(i)-6 to provide 
guidance on how to perform the good faith analysis required by Sec.  
1026.19(e)(3)(i) with respect to lender credits. New comment 
19(e)(3)(i)-6 explains that for purposes of conducting the good faith 
analysis required under Sec.  1026.19(e)(3)(i) for lender credits, the 
total amount of lender credits, whether specific or non-specific, 
actually provided to the consumer is compared to the amount of ``lender 
credits'' identified in Sec.  1026.37(g)(6)(ii). The comment also 
explains that the total amount of lender credits actually

[[Page 79825]]

provided to the consumer for purposes of the good faith analysis is 
determined by aggregating the amount of the ``lender credits'' 
identified in Sec.  1026.38(h)(3) with the amounts paid by the creditor 
that are attributable to a specific loan cost or other cost, disclosed 
pursuant to Sec.  1026.38(f) and (g). As clarified in final comment 
19(e)(3)(i)-6, a creditor uses the actual total amount of lender 
credits, whether specific or non-specific, for purposes of the good 
faith analysis under Sec.  1026.19(e)(3)(i).
    However, with respect to the request that the Bureau provide a 
specific exemption that would allow the amount of lender credits to 
decrease so that the creditor would be able to stay within guidelines 
under streamlined refinancing programs that limit the amount of cash 
that the creditor could pay the consumer at closing, the Bureau 
declines. Lenders are not permitted to reduce the lender credits they 
provide to the borrower under current Regulation X. See HUD RESPA FAQs 
p. 27,  4 (``GFE--Block 2''). Under current Regulation X, the 
loan originator may only apply the amount of the excess lender credits 
to additional closing costs previously not anticipated to be included 
in the loan, apply the excess to a principal reduction to the 
outstanding balance of the loan, pay the consumer the excess in cash, 
or reduce the interest rate and the credit accordingly. Creditors will 
be able to take the same actions with respect to lender creditors in 
streamlined refinancing programs under this final rule.
    The Bureau is also adding commentary to Sec.  1026.19(e)(3)(i) to 
address a comment the Bureau received from a document preparation 
company about the proposed requirements set forth in proposed Sec.  
1026.37(o)(4) and Sec.  1026.38(t)(4) to disclose rounded numbers for 
certain charges on the Loan Estimate and Closing Disclosure. The 
commenter requested guidance on how numbers required to be rounded on 
the Loan Estimate pursuant to Sec. Sec.  1026.37(o)(4) and 
1026.38(t)(4) would be compared to the Closing Disclosure for the 
purposes of the tolerances provided in Sec.  1026.19(f)(1). New comment 
19(e)(3)(i)-7 explains that although Sec. Sec.  1026.37(o)(4) and 
1026.38(t)(4) require that the dollar amounts of certain charges 
disclosed on the Loan Estimate and Closing Disclosure, respectively, be 
rounded to the nearest whole dollar, to conduct the good faith analysis 
under Sec.  1026.19(e)(3)(i) and (ii), the creditor should use 
unrounded numbers to compare the actual charge paid by or imposed on 
the consumer for a settlement service with the estimated cost of the 
service.
    The Bureau does not believe that it would be appropriate to exempt 
``no cost'' loans from Sec.  1026.19(e)(3)(i). ``No cost'' loans must 
comply with the current limitations on settlement charge increases set 
forth in Regulation X. Additionally, the text of Sec.  1026.19(e)(3)(i) 
indicates that the general rule applies to both charges that are paid 
by the consumer, and charges that are imposed on the consumer. In a 
``no cost'' loan transaction, closing costs may not be paid by the 
consumer because they are financed by the creditor, but are nonetheless 
imposed on the consumer. The Bureau also believes that consumers should 
receive reliable cost estimates for ``no cost'' loans so the consumer 
could use the Loan Estimate to compare such loans, where the closing 
costs are financed, with loans that do not finance closing costs.
    The Bureau also declines to modify the rule to provide an exemption 
for payments that affiliated title companies receive at closing that 
are then disbursed to unaffiliated service providers as payment for 
services performed by the unaffiliated service providers on behalf of 
the affiliated title companies. If a lender requires a consumer to use 
an affiliated company for title services, then the fees the consumer 
pays to the affiliate company should be subject to zero percent 
tolerance, even if the affiliate uses vendors to perform the title 
services.
    The Bureau has also considered the comments about the application 
of the zero percent tolerance rule to transfer taxes. The Bureau 
believes that a creditor should be able to obtain information about 
transfer taxes with considerable precision based on its knowledge of 
the real estate settlement process and resources it has available, such 
as software that permits a creditor to estimate transfer taxes with 
considerable precision, even though it is originating a loan in a 
geographical area with which it is unfamiliar. In addition, the amount 
of transfer taxes could be obtained through other sources, such as 
directly from the government authority of the jurisdiction where the 
transaction is taking place. Further, because the final rule reflects 
the current rule, the Bureau believes that creditors have already 
adapted to this requirement. Further, the adoption of Sec.  
1026.19(e)(3)(iv) in this final rule, as discussed below, offers a 
level of flexibility for the creditor to make adjustments to its 
estimate for transfer taxes similar to the current rule under 
Regulation X if the amount of transfer taxes increases because of a 
changed circumstance or borrower-requested change. Lastly, as noted 
above, the Bureau has added a comment to Sec.  1026.19(e) to define 
``affiliate'' for purposes of Sec.  1026.19(e) by explaining that it 
has the same meaning as in Sec.  1026.32(b)(2) in current subpart E of 
Regulation Z.\207\
---------------------------------------------------------------------------

    \207\ Current Sec.  1026.32(b)(2), which sets the definition of 
``affiliate'' in subpart E of Regulation Z, will be renumbered as 
Sec.  1026.32(b)(5) when the Bureau's 2013 ATR Final Rule becomes 
effective on January 10, 2014.
---------------------------------------------------------------------------

19(e)(3)(ii) Limited Increases Permitted for Certain Charges
    Proposed Sec.  1026.19(e)(3)(ii) would have permitted the sum of 
recording fees and all charges for non-affiliated third-party services 
for which the creditor permits the consumer to shop for a provider 
other than those identified by the creditor, to increase by ten percent 
for the purposes of determining good faith. Proposed comment 
19(e)(3)(ii)-1 would have explained that Sec.  1026.19(e)(3)(ii) 
provides that certain estimated charges are in good faith if the sum of 
all such charges paid by or imposed on the consumer does not exceed the 
sum of all such charges disclosed pursuant to Sec.  1026.19(e) by more 
than ten percent. The proposed comment would also have explained that 
Sec.  1026.19(e)(3)(ii) permits this limited increase for only: (1) 
fees paid to an unaffiliated third party if the creditor permitted the 
consumer to shop for the service, consistent with Sec.  
1026.19(e)(1)(vi)(A); and (2) recording fees.
    Proposed comment 19(e)(3)(ii)-2 would have clarified that pursuant 
to Sec.  1026.19(e)(3)(ii), whether an individual estimated charge 
subject to Sec.  1026.19(e)(3)(ii) is in good faith depends on whether 
the sum of all charges subject to Sec.  1026.19(e)(3)(ii) increase by 
more than ten percent, even if a particular charge does not increase by 
more than ten percent. The proposed comment would have also clarified 
that Sec.  1026.19(e)(3)(ii) provides flexibility in disclosing 
individual fees by focusing on aggregate amounts, and would have 
provided illustrative examples. Proposed comment 19(e)(3)(ii)-3 would 
have discussed the determination of good faith when a consumer is 
permitted to shop for a settlement service, but either does not select 
a settlement service provider, or chooses a settlement service provider 
identified by the creditor on the list required by Sec.  
1026.19(e)(1)(vi)(C). The proposed comment would have explained that 
Sec.  1026.19(e)(3)(ii) provides that if the

[[Page 79826]]

creditor requires a service in connection with the mortgage loan 
transaction, and permits the consumer to shop, then good faith is 
determined pursuant to Sec.  1026.19(e)(3)(ii)(A), instead of Sec.  
1026.19(e)(3)(i) and subject to the other requirements in Sec.  
1026.19(e)(3)(ii)(B) and (C). The proposed comment also would have 
illustrated the requirement with examples.
    Proposed comment 19(e)(3)(ii)-4 would have discussed how the good 
faith determination requirements apply to recording fees. The proposed 
comment would have explained that the condition specified in Sec.  
1026.19(e)(3)(ii)(B), that the charge not be paid to an affiliate of 
the creditor, is inapplicable in the context of recording fees. The 
proposed comment would have also explained that the condition specified 
in Sec.  1026.19(e)(3)(ii)(C), that the creditor permits the consumer 
to shop for the service, is similarly inapplicable. Therefore, the 
proposed comment would have stated that estimates of recording fees 
would only have needed to satisfy the condition specified in Sec.  
1026.19(e)(3)(ii)(A) (i.e., that the aggregate amount increased by no 
more than ten percent) to be subject to the requirements of Sec.  
1026.19(e)(3)(ii).
Comments
    Commenters expressed concern that fees subject to the ten percent 
tolerance would be restricted to fees paid to non-affiliates for 
services for which creditors permit consumers to shop. A number of 
commenters opposed the Bureau's proposal to keep recording fees in the 
ten percent tolerance category. A number of commenters sought various 
clarifications of proposed Sec.  1026.19(e)(3)(ii).
    An industry trade association representing mortgage lenders 
asserted that whether a consumer is able to shop beyond the written 
list of providers for a settlement service should not be a condition 
that determines whether the ten percent tolerance applies to a fee 
charged by a settlement service provider. An industry trade association 
representing banks asserted that the ten percent tolerance rule should 
apply to lender-required service providers and that no tolerance rules 
should apply to fees paid to settlement service providers selected by 
the consumer without, or regardless of, a creditor's recommendation 
because the creditor has no knowledge of or control over the pricing 
set by such providers.
    The commenters opposing the application of the ten percent 
tolerance to recording fees included commenters that opposed the 
application of the zero percent tolerance to transfer taxes, and many 
based their opposition on similar arguments they made for transfer 
taxes. A large bank commenter observed that recording fees can increase 
shortly before, or even at, closing. A settlement agent commenter 
suggested that applying the ten percent tolerance rule to recording 
charges will delay closings and harm consumers. But a law firm employee 
commenter from a State that requires attorneys to conduct real estate 
closings suggested that the ten percent tolerance rule would not 
negatively impact the timeliness of closings.
    Industry trade association commenters representing banks and 
mortgage lenders observed that, in some cases, the creditor may 
disclose an amount for a settlement service on the original Loan 
Estimate but later on, the service is no longer required, due to 
unexpected events. The commenters asserted that the final rule should 
clarify that the estimated amount for that settlement service disclosed 
on the Loan Estimate be included in the sum of all estimated amounts 
for charges subject to Sec.  1026.19(e)(3)(ii) for purposes of the good 
faith analysis under Sec.  1026.19(e)(3)(ii), because the creditor 
could not have predicted the occurrence of the event that resulted in 
the nonperformance of a lender-required service.
    A large bank commenter requested the Bureau confirm that the ten 
percent tolerance applies where the creditor permits the consumer to 
shop for a settlement service, but the consumer still asks the creditor 
to select the settlement service provider. The large bank commenter 
also requested clarification on what tolerance rule applies when the 
consumer asks the creditor to select the settlement service provider, 
even though the creditor permits the consumer to shop pursuant to Sec.  
1026.19(e)(1)(iv)(A), and the creditor selects a non-affiliate that the 
creditor did not disclose to the consumer on the list required by Sec.  
1026.19(e)(1)(iv)(C).
Final Rule
    The Bureau has considered the comments and is adopting Sec.  
1026.19(e)(3)(ii) with minor revisions to enhance clarity. Section 
1026.19(e)(3)(ii) provides that an estimate of a charge for a third-
party service performed by an unaffiliated settlement service provider 
or a recording fee is in good faith if the aggregate amount of such 
charges paid by or imposed on the consumer does not exceed the 
aggregate amount of such charges disclosed under Sec.  1026.19(e)(1)(i) 
by more than 10 percent, provided that the creditor permits the 
consumer to shop for the third-party service, consistent with Sec.  
1026.19(e)(1)(vi). Comments 19(e)(3)(ii)-1 through -4 are adopted 
substantially as proposed.
    With respect to applying the ten percent tolerance rule to fees 
paid to service providers recommended by the creditor, the Bureau 
believes there needs to be a determination, pursuant to Sec.  
1026.19(e)(3)(ii), whether the fee is paid to an unaffiliated third 
party and whether the creditor permitted the consumer to shop for the 
service. The Bureau recognizes that some consumers may ask their 
creditor or mortgage broker for recommendations when selecting 
settlement service providers; however, the Bureau is concerned that 
some creditors and mortgage brokers may try to require the consumer to 
select certain providers while appearing to permit the consumer to shop 
for a provider. If the creditor or mortgage broker engages in this 
practice, the Bureau believes that it may raise similar consumer 
protection issues associated with creditors developing ``closed lists'' 
of ``preferred providers,'' discussed above in the general section-by-
section analysis of Sec.  1026.19(e)(3).
    The Bureau declines to incorporate in final Sec.  1026.19(e)(3)(ii) 
some commenters' suggestion that the estimated amount of a settlement 
service be included in the amount of charges used to conduct the good 
faith analysis required by Sec.  1026.19(e)(3)(ii), even when the 
service was not performed. Current Regulation X provides that if a 
service that was listed on the RESPA GFE was not obtained in connection 
with the transaction, then no amount for that service should be 
reflected on the RESPA settlement statement, and the estimated amount 
for that charge on the RESPA GFE should not be included in any amount 
used to determine whether a tolerance violation has occurred. 12 CFR 
part 1024, app. C. HUD explained that the reason for adopting this rule 
is that allowing loan originators to include in the good faith analysis 
charges from the RESPA GFE for settlement services that were not 
purchased could both induce loan originators to discourage consumers 
from purchasing settlement services in order to increase the cushion 
they have under the ten percent tolerance rule and to disclose on the 
RESPA GFE services that the consumer will not need in the transaction. 
76 FR 40612, 40614 (July 11, 2011). The final rule largely mirrors 
these requirements in that if the creditor discloses a cost estimate 
for a settlement service on the Loan Estimate, but the

[[Page 79827]]

settlement service was not obtained, the creditor cannot include the 
fee estimate in the estimated aggregate amount for purposes of 
conducting the good faith analysis under Sec.  1026.19(e)(3)(ii). To 
facilitate compliance, the Bureau is adopting new comment 19(e)(3)(ii)-
5. Comment 19(e)(3)(ii)-5 explains that in calculating the aggregate 
amount of estimated charges for purposes of conducting the good faith 
analysis pursuant to Sec.  1026.19(e)(3)(ii), the aggregate amount of 
estimated charges must reflect charges for services that are actually 
performed, and provides an illustrative example. The Bureau believes 
that the ten percent tolerance rule should continue to apply to 
recording fees. Because this is the current rule under Regulation X, 
the Bureau believes that creditors have already adapted. The comments 
also suggested that there was a concern that because recording fees can 
increase shortly before closing, closing can be delayed if a revised 
Loan Estimate must be provided. But pursuant to Sec.  
1026.19(e)(4)(ii), discussed below, a creditor complies with Sec.  
1026.19(e)(4) by listing the revised recording fee in the Closing 
Disclosure.
19(e)(3)(iii) Variations Permitted for Certain Charges
    Section 1024.7(e)(3) of Regulation X currently provides that the 
amounts charged for services other than those identified in Sec.  
1024.7(e)(1) and Sec.  1024.7(e)(2) may change at settlement. The 
Bureau proposed Sec.  1026.19(e)(3)(iii), which would have provided 
that estimates of the following charges are in good faith regardless of 
whether the amount actually paid by the consumer exceeds the estimated 
amount disclosed, provided such estimates are consistent with the best 
information reasonably available to the creditor at the time the 
disclosures were made: prepaid interest; property insurance premiums; 
amounts placed into an escrow, impound, reserve, or similar account; 
and charges paid to third-party service providers selected by the 
consumer consistent with Sec.  1026.19(e)(1)(vi)(A) that are not on the 
list provided pursuant to Sec.  1026.19(e)(1)(vi)(C). The Bureau 
reasoned that: (1) certain types of estimates, such as those for 
property insurance premiums, may change significantly after the 
original disclosures required under Sec.  1026.19(e)(1)(i) are 
provided; and (2) the existing Regulation X rule would be improved and 
compliance facilitated by specifically identifying which items are 
included in this category.
    Proposed comments 19(e)(3)(iii)-1, -2, and -3 would have clarified 
that the disclosures for items subject to Sec.  1026.19(e)(3)(iii) must 
be made in good faith, even though good faith is not determined 
pursuant to a comparison of estimated amounts and actual costs. The 
proposed comments would have clarified that the disclosures must be 
made according to the best information reasonably available to the 
creditor at the time the disclosures are made. The Bureau stated in the 
proposal that it was concerned that unscrupulous creditors could 
underestimate, or fail to include estimates for, the items subject to 
Sec.  1026.19(e)(3)(iii) and mislead consumers into believing the cost 
of the mortgage loan is less than it actually is. The Bureau also 
stated in the proposal its belief that this concern must be balanced 
against the fact that some items may change significantly and 
legitimately prior to consummation. Further, the Bureau stated that 
while the creditor should include estimates for all fees ``the borrower 
is likely to incur,'' it may not be reasonable to expect the creditor 
to know every fee, no matter how uncommon, agreed to by the consumer, 
for example in the purchase and sale agreement, prior to providing the 
estimated disclosures. The proposal would have struck a balance between 
these considerations by imposing a general good faith requirement.
    Accordingly, proposed comment 19(e)(3)(iii)-1 would have explained 
that estimates of prepaid interest, property insurance premiums, and 
impound amounts must be consistent with the best information reasonably 
available to the creditor at the time the disclosures are provided. 
Proposed comment 19(e)(3)(iii)-1 would have explained that differences 
may exist between the amounts of charges subject to Sec.  
1026.19(e)(3)(iii) disclosed pursuant to Sec.  1026.19(e)(1)(i) and the 
amounts of such charges paid by or imposed upon the consumer, so long 
as the original estimated charge, or lack of an estimated charge for a 
particular service, was based on the best information reasonably 
available to the creditor at the time the disclosure was provided. The 
proposed comment would have illustrated the requirement with an 
example.
    Proposed comment 19(e)(3)(iii)-2 would have discussed the good 
faith requirement for required services chosen by the consumer that the 
consumer has been permitted to shop for, consistent with Sec.  
1026.19(e)(1)(vi)(A). It would have explained that, if a service is 
required by the creditor, and the creditor permits the consumer to: 
shop for that service, provides the written list of providers, and the 
consumer chooses a service provider that is not on the list to perform 
that service, then the actual amounts of such fees need not be compared 
to their original estimates.
    Proposed comment 19(e)(3)(iii)-2 would have further clarified that 
the original estimated charge, or lack of an estimated charge for a 
particular service, must be made based on the best information 
reasonably available to the creditor at that time and would have 
illustrated the requirement with an example. The proposed comment would 
have also clarified that if the creditor permits the consumer to shop 
consistent with Sec.  1026.19(e)(1)(vi)(A) but fails to provide the 
list required by Sec.  1026.19(e)(1)(vi)(C), then good faith is 
determined pursuant to Sec.  1026.19(e)(3)(ii) instead of Sec.  
1026.19(e)(3)(iii) regardless of the provider selected by the consumer, 
unless the provider is an affiliate of the creditor, in which case good 
faith is determined pursuant to Sec.  1026.19(e)(3)(i).
    Proposed comment 19(e)(3)(iii)-3 would have clarified the good 
faith requirement for optional settlement services (i.e., service that 
are not lender-required) chosen by the consumer. It would have 
explained that differences between the amounts of estimated charges for 
services not required by the creditor disclosed pursuant to Sec.  
1026.19(e)(1)(i) and the amounts of such charges paid by or imposed on 
the consumer do not necessarily constitute a lack of good faith and 
would have illustrated the requirement with an example. Proposed 
comment 19(e)(3)(iii)-3 would have also explained that the original 
estimated charge, or lack of an estimated charge for a particular 
service, must still be made based on the best information reasonably 
available to the creditor at the time that the estimate was provided, 
and would have illustrated the requirement with an example.
Comments
    The Bureau received a number of comments seeking various 
adjustments and clarifications. Although an industry trade association 
representing affiliated real estate businesses expressed support for 
the inclusion of property insurance premiums in the category of charges 
not subject to a tolerance, even if the insurance provider is a lender 
affiliate, at least one industry commenter sought clarification on 
whether property insurance premiums would have been subject to 
tolerances. The commenter asserted that property insurance premiums 
should not be subject to

[[Page 79828]]

limitations on increases because there are too many variables that 
ultimately determine the premium amount due at closing on a consumer's 
property insurance policy.
    Some industry commenters asked the Bureau to clarify that property 
taxes, insurance premiums and homeowner's association, condominium, and 
cooperative fees are included in the costs subject to proposed Sec.  
1026.19(e)(3)(iii), regardless of whether these costs would have been 
placed into an escrow or similar account. An industry trade association 
representing community associations stated their belief that the good 
faith requirement would impose a burden on its members. The commenter 
expressed concern that the final rule would succeed in encouraging 
consumer shopping, which in turn would increase the number of 
information requests to community associations to which they must 
respond. The commenter was also concerned that the definitions of 
application and business day with respect to the original Loan Estimate 
delivery requirement would impose additional burden on community 
associations by shortening the amount of time community associations 
would have to respond to creditor inquiries. The commenter further 
expressed concern that under State consumer protection laws, community 
associations may be held liable if there is a difference between the 
estimated cost of community association assessments and the actual cost 
of the assessments. The commenter asserted that the Bureau should 
encourage creditors to use information about association assessments 
provided by either the seller or the buyer when preparing the Loan 
Estimate.
    State bar associations and individual law firm commenters from 
States that require attorneys to conduct real estate closings requested 
that the Bureau include attorney and title-related fees in final Sec.  
1026.19(e)(3)(iii). They asserted that it is inappropriate to subject 
these fees to limitations on increases because the provision of legal 
services is not a commodity and thus, cannot be priced as such. 
Further, the commenters asserted that price limitations are not 
necessary because of existing competitive pressures in the market. They 
also expressed concern that applying tolerance rules to their fees 
would incent creditors to require consumers to use certain lender-
selected providers to control closing costs.
    Two national consumer advocacy groups questioned the inclusion of 
prepaid interest in proposed Sec.  1026.19(e)(3)(iii). The commenters 
asserted that the creditor should not have any difficulty calculating 
prepaid interest if the creditor knows the closing date and the loan's 
interest rate. The commenters asserted creditors should be encouraged 
to provide new, timely disclosures, rather being permitted to provide 
misleading disclosures of costs that are known to the creditor. 
Industry trade associations representing banks and mortgage lenders 
asserted that the Bureau should require creditors to list the maximum 
possible amount of prepaid interest that could be paid by or imposed on 
the consumer on the original Loan Estimate because it will enhance the 
ability of the consumer to shop and compare loans. It appears that the 
commenters are concerned that without imposing this requirement, some 
creditors may underestimate prepaid interest.
    These trade association commenters also requested that the Bureau 
confirm that owner's title insurance and other charges for services 
that the creditor does not require are not subject to the tolerance 
rules, even if they are provided by an affiliate of the creditor. A 
settlement agent commenter also asserted that the good faith 
requirement should not apply to costs that the consumer incur for 
settlement services not required by the creditor. A community bank 
commenter stated that it strongly recommended that settlement provider 
fees should not be subject to tolerances if the provider of that 
service was not listed on the written list of providers the creditor 
provides to the consumer. Finally, a law firm commenter and a State 
association representing land title agents asserted that the Bureau 
appears to have eliminated the category of settlement service fees not 
subject to any tolerance that exists in current Regulation X.
Final Rule
    The Bureau has considered the comments and is adopting Sec.  
1026.19(e)(3)(iii) and comments 19(e)(3)(iii)-1 through -3 
substantially as proposed, with revisions to enhance clarity with 
respect to determining good faith under Sec.  1026.19(e)(3)(iii). The 
final rule also clarifies the treatment of optional settlement services 
(i.e., services not required by the lender). See Sec.  
1026.19(e)(3)(iii)(E). The Bureau believes that Sec.  
1026.19(e)(3)(iii) strikes the appropriate balance between the risk 
that some creditors may intentionally engage in bait and switch 
tactics, against the fact that some items may change significantly and 
legitimately prior to consummation. For example, the Bureau believes 
that prepaid interest is one such item and should be included in Sec.  
1026.19(e)(3)(iii). The Bureau believes that the risk that creditors 
may intentionally manipulate the disclosure of prepaid interest is low, 
compared to fees in the zero or ten percent tolerance categories, and 
the good faith requirement in Sec.  1026.19(e)(3)(iii) will deter 
intentional underestimation of prepaid interest. On a related issue, 
the argument made by some commenters that creditors should be required 
to disclose the maximum possible amount of prepaid interest that the 
consumer may pay at closing on the original Loan Estimate is 
inconsistent with the good faith requirement in the final rule.
    The Bureau does not believe that charges related to owner's title 
insurance should be included in the charges not subject to tolerances. 
Under current Regulation X, such fees are subject to the ten percent 
tolerance rule. The Bureau believes that changing the current rule 
weakens consumer protection. The Bureau also believes that attorney 
fees for conducting closings and title-related services in States that 
require attorneys to conduct real estate closings should be subject to 
a tolerance. In these States, the attorney is performing services that 
a settlement agent would provide, and thus, the attorney fees should be 
subject to the same tolerance rules as settlement agent charges. 
Additionally, the Bureau believes that the fees for conducting closings 
can be estimated with considerable accuracy at the time the Loan 
Estimate is provided. Further, these fees can be adjusted in cases of 
changed circumstances or borrower-requested changes.
    With respect to the concern that creditors may require consumers to 
use certain providers to control costs if attorney fees are subject to 
the tolerance rules, the Bureau has addressed the potential impact of 
the tolerance rules on competition in the general section-by-section 
analysis of Sec.  1026.19(e)(3), and has concluded that this final rule 
may actually enhance competition in the market for settlement service 
providers. In response to the argument that price limitations on 
attorney fees are not necessary because of market forces, the Bureau 
notes that the final rule does not limit what an attorney may charge 
for conducting settlement services. The only limitation these rules set 
on attorney fees for conducting closings and title-related services is 
the limitation on the amount by which the actual fee paid by or imposed 
on the consumer for such services may exceed the estimated fee for such 
services disclosed on the Loan Estimate. Further, as discussed above, 
under the final rule estimated closing costs will be able to be

[[Page 79829]]

revised to reflect cost increases due to a changed circumstance or 
borrower-requested changes. In this regard rule mirrors current 
Regulation X.
    The Bureau does not believe that optional services chosen by the 
consumer should be exempt from the good faith requirement. As discussed 
above, both RESPA and TILA establish good faith requirements related to 
closing costs, which includes optional services chosen by the consumer. 
In response to concerns raised by the industry trade association 
representing community associations, the Bureau has adjusted comment 
19(e)(3)(iii)-1 to clarify that the ``reasonably available'' standard 
in Sec.  1026.19(e)(3)(iii) means that the estimate for a charge 
subject to Sec.  1026.19(e)(3)(iii) was obtained by the creditor 
through due diligence. As applied to community association assessments, 
this means that the creditor normally may rely on the representations 
of the consumer or seller. The Bureau notes that this ``reasonably 
available'' standard is the same ``reasonably available'' standard for 
estimated disclosures set forth in comment 17(c)(2)(i)-1 of Regulation 
Z, and thus, final comment 19(e)(3)(iii)-1 contains a reference to 
comment 17(c)(2)(i)-1.
    Finally, as noted above, a number of the commenters sought 
clarification on various other aspects of the proposal. As is currently 
the case under Regulation X, final Sec.  1026.19(e)(3)(iii) provides 
that property insurance premiums are included in the category of 
settlement charges not subject to a tolerance, whether or not the 
insurance provider is a lender affiliate. The final rule also mirrors 
current Regulation X in that property insurance premiums, property 
taxes, homeowner's association dues, condominium fees, and cooperative 
fees are subject to tolerances whether or not they are placed into an 
escrow, impound, reserve, or similar account.
    On the question of whether proposed Sec.  1026.19(e)(3)(iii) would 
have included fees paid to service providers that were not listed on 
the written list of service providers set forth in Sec.  
1026.19(e)(1)(vi)(C), comment 19(e)(3)(iii)-2 provides guidance on this 
question. With respect to the question whether proposed Sec.  
1026.19(e)(3)(iii) would have included fees paid to lender affiliates 
for an optional settlement service, charges for third-party services 
not required by the creditor (other than owner's title insurance) are 
not subject to a tolerance category, even if a lender affiliate 
provides them. The Bureau recognizes that this position may appear to 
be at odds with the general treatment of affiliate fees. However, the 
Bureau believes that the optional nature of such services means that 
consumers may decide not to purchase these services later in the 
origination process, or choose a provider that offers a better price 
for the service. The Bureau believes that these factors distinguish 
fees paid to affiliates for optional services from fees paid to 
affiliates for lender-required services. Accordingly, the Bureau 
believes that it is not necessary to subject fees paid to affiliates 
for optional services to zero tolerance. However, the Bureau expects to 
closely monitor the implementation of this final rule, including Sec.  
1026.19(e).
19(e)(3)(iv) Revised Estimates
    Regulation X Sec.  1024.7(f) currently provides that the estimates 
included on the RESPA GFE are binding, subject to six exceptions. The 
Bureau proposed to incorporate Sec.  1024.7(f) in Sec.  
1026.19(e)(3)(iv), which would have provided that, for purposes of 
determining good faith under Sec.  1026.19(e)(3)(i) and (ii), a charge 
paid by or imposed on the consumer may exceed the originally estimated 
charge if the revision is caused by one of the six reasons identified 
in Sec.  1026.19(e)(3)(iv)(A) through (F). Proposed comment 
19(e)(3)(iv)-1 would have clarified the general requirement of Sec.  
1026.19(e)(3)(iv). The Bureau stated in the proposal that it agreed 
that there would be certain situations that could legitimately cause 
increases over the amounts originally estimated, and that the 
regulations should provide a clear mechanism for providing revised 
estimates in good faith. Consistent with current Regulation X,\208\ 
proposed comment 19(e)(3)(iv)-2 would have clarified that, to satisfy 
the good faith requirement, revised estimates may increase only to the 
extent that the reason for revision actually caused the increase and 
would have provided an illustrative example of this requirement. 
Proposed comment 19(e)(3)(iv)-3 would have clarified the documentation 
requirements related to the provision of revised estimates. Regulation 
X Sec.  1024.7(f) contains a separate regulatory provision related to 
documentation requirements. The Bureau stated in the proposal that it 
believed that this requirement would have been encompassed within the 
requirements the Bureau proposed in Sec.  1026.25 with respect to 
recordkeeping. The proposed comment would have clarified that the 
creditors must retain records demonstrating compliance with the 
requirements of Sec.  1026.19(e) in order to comply with Sec.  1026.25. 
The proposed comment would have also provided illustrative examples.
---------------------------------------------------------------------------

    \208\ See Sec.  1024.7(f)(1), (2), (3), and (5).
---------------------------------------------------------------------------

    A mortgage broker commenter asserted that the Bureau should expand 
the categories of valid reasons for revisions to include mistakes made 
by mortgage brokers. The Bureau has considered the comment but believes 
that mistakes made by the mortgage broker should not be included among 
the valid reasons for a settlement charge to exceed the amount 
originally estimated for the charge. As a general matter, errors are 
not a basis for revising Loan Estimates, and the Bureau does not 
believe that mortgage broker errors should be treated differently than 
other errors.
    A community bank commenter stated that the Bureau should clarify 
that creditors are permitted to provide updated disclosures to 
borrowers anytime, even though the change is an increase beyond the 
applicable tolerance threshold. In consideration of this comment, the 
Bureau has revised proposed Sec.  1026.19(e)(3)(iv) and comment 
19(e)(3)(iv)-1. The Bureau believes that the revisions will clarify 
that Sec.  1026.19(e)(3)(iv) does not prohibit a creditor from 
providing updated disclosures. Rather, Sec.  1026.19(e)(3)(iv) provides 
an exception to the general rule in Sec.  1026.19(e)(3)(i) and (ii) 
that a charge paid by or imposed on the consumer must be compared to 
the amount in the original Loan Estimate.
    As adopted, Sec.  1026.19(e)(3)(iv) provides that for purposes of 
determining good faith under Sec.  1026.19(e)(3)(i) and (ii), a 
creditor may use a revised estimate of a charge instead of the amount 
originally disclosed under Sec.  1026.19(e)(1)(i) if the revisions is 
due to one of the reasons set forth in Sec.  1026.19(e)(3)(iv)(A) 
through (F). Comment 19(e)(3)(iv)-1 explains that Sec.  
1026.19(e)(3)(iv) provides the exception to the rule that pursuant to 
Sec.  1026.19(e)(3)(i) and (ii), good faith is determined by 
calculating the difference between the estimated charges originally 
provided under Sec.  1026.19(e)(1)(i) and the charges paid by or 
imposed on the consumer. It clarifies that pursuant to Sec.  
1026.19(e)(3)(iv), for purposes of determining good faith under Sec.  
1026.19(e)(3)(i) and (ii), the creditor may use a revised estimate of a 
charge instead of the amount originally disclosed under Sec.  
1026.19(e)(1)(i) if the revision is due to one of the reasons set forth 
in Sec.  1026.19(e)(3)(iv)(A) through (F). Comments 19(e)(3)(iv)-2 and 
-3 are adopted as proposed.

[[Page 79830]]

19(e)(3)(iv)(A) Changed Circumstance Affecting Settlement Charges
    In general. Section 1024.7(f)(1) of Regulation X currently provides 
that a revised RESPA GFE may be provided if changed circumstances 
result in increased costs for any settlement service such that charges 
at settlement would exceed the tolerances for those charges. The Bureau 
proposed Sec.  1026.19(e)(3)(iv)(A), which would have also provided 
that a valid reason for re-issuance exists when changed circumstances 
cause estimated charges to increase or, for those charges subject to 
Sec.  1026.19(e)(3)(ii), cause the sum of all such estimated charges to 
increase by more than ten percent. Proposed comment 19(e)(3)(iv)(A)-1 
would have provided further explanation of this requirement and would 
have included several examples. The Bureau stated in the proposal its 
belief that creditors should be able to provide revised estimates if 
certain situations occur that increase charges.
    Changed circumstance. Section 1024.2 in current Regulation X 
generally defines changed circumstances as information and events that 
warrant revision of the estimated amounts included on the RESPA GFE. 
The Bureau proposed a similar definition, but with certain changes to 
address feedback that it had received suggesting that there was 
confusion about the Regulation X definition. Thus, the Bureau proposed 
in Sec.  1026.19(e)(3)(iv)(A) to define a changed circumstance as: (1) 
An extraordinary event beyond the control of any interested party or 
other unexpected event specific to the consumer or transaction; (2) 
information specific to the consumer or transaction that the creditor 
relied upon when providing the disclosures and that was inaccurate or 
subsequently changed; or (3) new information specific to the consumer 
or transaction that was not relied on when providing the disclosures.
    This proposed definition, most significantly, would have omitted 
the fourth prong of the existing definition of changed circumstances: 
``[o]ther circumstances that are particular to the borrower or 
transaction, including boundary disputes, the need for flood insurance, 
or environmental problems.'' The Bureau suggested in the proposal that 
the items listed in the fourth prong were already covered by other 
elements of the definition and questioned whether the overlap had 
contributed to the industry uncertainty surrounding what scenarios 
constitute a changed circumstance under the current definition of 
changed circumstances in Regulation X. The Bureau sought comment on 
whether its proposed definition of changed circumstances was 
appropriate, and specifically on whether there are scenarios that 
should be considered a changed circumstance that would not be captured 
under any of the three prongs set forth in the proposed definition.
    Proposed comment 19(e)(3)(iv)(A)-2 would have provided additional 
elaboration on the proposed definition and would have provided several 
examples of changed circumstances. Proposed comment 19(e)(3)(iv)(A)-3 
would have explained how the definition of application under Sec.  
1026.2(a)(3) relates to the definition of changed circumstances under 
Sec.  1026.19(e)(3)(iv)(A). The proposed comment would have explained 
that although a creditor is not required to collect the consumer's 
name, monthly income, or social security number to obtain a credit 
report, the property address, an estimate of the value of the property, 
or the mortgage loan amount sought, for purposes of determining whether 
an estimate is provided in good faith under Sec.  1026.19(e)(1)(i), a 
creditor is presumed to have collected these six pieces of information. 
The proposed comment would have further explained that if a creditor 
provides the disclosures required by Sec.  1026.19(e)(1)(i) prior to 
receiving the property address from the consumer, the creditor could 
not subsequently claim that the receipt of the property address was a 
changed circumstance, under Sec.  1026.19(e)(3)(iv)(A) or (B).
    Industry commenters had mixed reactions to the Bureau's proposed 
definition of changed circumstances. A regional bank holding company 
commenter and a community bank commenter stated that they supported the 
proposed definition. In contrast, a company that performs compliance 
training and consulting services to credit unions stated that the 
Bureau should not change the current definition of changed 
circumstances because the change is not required by the Dodd-Frank Act. 
The commenter also asserted that changing the definition of changed 
circumstances would result in an extended implementation period. A 
national provider of title insurance and settlement services stated 
that the Bureau should conduct more research as to the most common 
changed circumstances that occur in transactions that would be subject 
to Sec.  1026.19(e) and (f).
    Some commenters, including an industry trade association 
representing Federally-chartered credit unions, objected to the 
Bureau's proposal to omit the fourth prong in the current definition of 
changed circumstances. The commenters expressed concern that the 
elimination of the fourth prong meant that situations such as boundary 
disputes, which are included as instances of changed circumstances 
under the current definition, would not be included under the Bureau's 
final rule. However, this commenter also asserted that the Bureau 
should provide additional guidance on what scenarios would be included 
in the fourth prong of the definition of changed circumstances if it 
retains the fourth prong in the final rule.
    Several industry trade association commenters asserted that the 
Bureau should expand the definition of ``changed circumstances.'' 
Industry trade association commenters representing banks and mortgage 
lenders asserted that the Bureau should treat the scenario of a loan 
exceeding the points and fees thresholds for a qualified mortgage, 
HOEPA loan, or a qualified residential mortgage as a changed 
circumstance. In the alternative, they asserted that the Bureau should 
allow the creditor to deny the loan when the applicable threshold has 
been exceeded. An industry trade association representing Federally-
charted credit unions asserted that the proposed definition of changed 
circumstances should be expanded to include situations where the 
consumer increases the down payment amount because it is very likely 
that settlement charges will change as a result of the increase in the 
down payment amount. The commenter also stated that changed 
circumstances should include situations where the seller changes a 
condition that would result in a change to estimated costs disclosed on 
the Loan Estimate.
    Several industry commenters urged the Bureau to change the proposed 
definition of changed circumstances so that the term ``unexpected 
event'' is understood to mean an ``unexpected event'' from the 
creditor's point of view. Most of the commenters asserted that the 
change would reduce the incentive for the consumer to withhold 
information. Additional commenters requested clarification with respect 
to the term ``interested party,'' asserting that such clarification was 
necessary so that the creditor is not responsible for matters under the 
control of other parties.
    A State bankers association also requested guidance on whether a 
change to the loan amount or monthly payment would be considered a 
changed circumstance, if it does not result in a

[[Page 79831]]

cost increase or in the APR becoming inaccurate. The commenter reported 
that its members have been advised by their regulators to reissue the 
RESPA GFE in such circumstances and asserted that this guidance has 
resulted in compliance burden.
    A large bank commenter expressed concern that proposed Sec.  
1026.19(e)(3)(iv)(A) would not permit a creditor to reset estimates for 
purposes of the good faith analysis under Sec.  1026.19(e)(3)(ii) 
unless the aggregate amount of all such charges increased by more than 
ten percent due to a changed circumstance. The commenter also observed 
that the current definition of changed circumstances sets forth what 
situations are not considered changed circumstances. The commenter 
sought clarification on whether creditors may assume that situations 
that are not changed circumstances under the current definition of 
changed circumstances would be considered changed circumstances under 
the proposed definition.
    Lastly, a large bank commenter stated that the Bureau must provide 
additional clarity on whether it plans to issue guidance on changed 
circumstances that is similar to the HUD RESPA FAQs, or if the Bureau 
plans to adopt the HUD RESPA FAQs that address changed circumstances. 
The commenter stated that the HUD RESPA FAQs were critical to 
creditors' ability to establish compliance programs. Similarly, a 
software vendor commenter requested that the Bureau clarify whether the 
HUD RESPA FAQs on changed circumstances would still be valid after this 
rule is finalized.
Final Rule
    The Bureau has considered the comments, and is adopting Sec.  
1026.19(e)(3)(iv)(A) and comments 19(e)(3)(iv)(A)-1 through 3 
substantially as proposed, with revisions to enhance clarity. For the 
reasons stated below, the Bureau does not believe that the comments 
warrant material changes to proposed Sec.  1026.19(e)(3)(iv)(A). The 
Bureau believes that the final rule clearly indicates that unless a 
scenario falls under one of the three prongs listed under the 
definition of changed circumstances, the scenario is not a changed 
circumstance. The Bureau recognizes that the current definition of 
changed circumstance sets forth both scenarios that are changed 
circumstances and those that are not.\209\ The Bureau believes that 
this is a confusing formulation, and the Bureau's approach makes the 
meaning of changed circumstances clearer. But the Bureau agrees that 
there is value in explaining what changed circumstances do not include, 
and notes that for purposes of Regulation Z, explanations and 
clarifications are generally set forth in the official staff commentary 
to Regulation Z. The Bureau is taking this approach. For example, 
comment 19(e)(3)(iv)(A)-3 explains that a creditor may not claim that a 
changed circumstance has occurred if it provides the Loan Estimate 
pursuant to Sec.  1026.19(e)(1)(i) without collecting any of the six 
items of information that make up the definition of application. This 
reflects the current understanding of which scenarios are not changed 
circumstances.\210\
---------------------------------------------------------------------------

    \209\ 12 CFR 1024.2(b).
    \210\ Id.
---------------------------------------------------------------------------

    The Bureau also believes that it is appropriate to adjust the 
current definition of changed circumstances, notwithstanding the 
assertion that the Bureau should not change the current definition of 
changed circumstances because it is not required by the Dodd-Frank Act. 
The fact that an industry trade association representing Federally-
chartered credit unions requested additional guidance on the current 
definition supports the Bureau's belief that there is industry 
uncertainty surrounding what constitute a changed circumstance. The 
Bureau does not believe that the changes this final rule makes to the 
current definition of changed circumstances would result in an extended 
implementation period because the Bureau believes that the most 
significant change--the elimination of the fourth prong--is a change to 
streamline the current definition without narrowing the scope of 
changed circumstances. The Bureau also does not believe that additional 
research is needed on changed circumstances because the Bureau believes 
that the most common scenarios that should be considered a changed 
circumstance are encompassed in the final definition.
    The Bureau also declines to retain the fourth prong in the current 
definition of changed circumstances in the final rule. The Bureau 
believes that the final rule encompasses the scenarios that are 
currently addressed by the fourth prong. Comment 19(e)(3)(iv)(A)-2 
provides an example of how a boundary dispute is considered a changed 
circumstance.
    The Bureau recognizes that creditors are incented not to make loans 
that exceed the points and fees thresholds for qualified mortgages, 
HOEPA loans, or qualified residential mortgages. If a changed 
circumstance causes the loan to exceed the application threshold, then 
the creditor has a legitimate basis for revision. However, the Bureau 
does not believe that the fact that the event occurred is, by itself, a 
changed circumstance. A loan may exceed the threshold because of 
mistakes that the creditor made in the points and fees calculation. As 
stated elsewhere in the section-by-section analysis of Sec.  
1026.19(e), creditor errors are not legitimate reasons for revising 
Loan Estimates. The Bureau also believes that it is not necessary to 
specifically provide that a creditor may deny a loan once the 
applicable points and fees threshold has been exceeded because the Loan 
Estimate is not a loan commitment. However, the Bureau reminds 
creditors that Regulation B contains requirements that apply when the 
creditor denies a consumer's loan application.
    In response to the assertion that the definition of changed 
circumstances should include a scenario where the consumer increases 
the down payment amount, the Bureau believes that to the extent that 
the act of increasing the down payment amount actually increased 
settlement charges subject to the tolerance rules beyond the applicable 
tolerance, then the scenario would be considered a valid reason for re-
issuance under Sec.  1026.19(e)(3)(iv)(C), which the Bureau is adopting 
as proposed for reasons discussed below. Additionally, the Bureau 
believes that scenarios where the seller changes a condition that would 
result in a change to estimated costs disclosed on the Loan Estimate, 
are encompassed within the definition of changed circumstances.
    With respect to the argument that the Bureau should change the 
proposed definition of changed circumstances so that the term 
``unexpected event'' is understood to mean an ``unexpected event'' from 
the creditor's point of view because the modification would reduce the 
incentive for the consumer to withhold information, the Bureau 
declines. As illustrated in comment 19(e)(3)(iv)(A)-2, the term 
``unexpected event'' is meant to encompass scenarios that involve 
changes that take place after the original Loan Estimate has been 
provided to the consumer. The consumer would not be able to withhold 
information about events that have not occurred.
    The Bureau declines to clarify the term ``interested party.'' The 
Bureau believes that the term ``interested party'' should be 
interpreted broadly because mortgage loan transactions are complex and 
affect the interests of many parties. For example, the local government 
entity in which the property is located can be considered an interested 
party

[[Page 79832]]

because the government entity has an interest in the transfer taxes 
that would be collected upon the consummation of the transaction. 
Further, with respect to the assertion that clarifying the term 
``interested party'' is necessary to ensure that the creditor is not 
responsible for matters under the control of other parties, the Bureau 
believes adopting this position would undermine Sec.  
1026.19(e)(1)(ii), which provides that the creditor is responsible for 
ensuring that a mortgage broker complies with Sec.  1026.19(e) when the 
mortgage broker provides the disclosures required by Sec.  1026.19(e). 
The Bureau also believes that this position contradicts the tolerance 
rules, which makes creditors responsible for providing reliable 
estimates of costs under the control of other parties, such as third-
party settlement service providers and government jurisdictions.
    The Bureau believes that whether a change to the loan amount or 
monthly payment would be considered a changed circumstance depends on 
whether the reason for the change is a scenario that is described in 
one of the three prongs of the definition of changed circumstances.
    The Bureau declines to change the proposed rule such that each 
occurrence of a changed circumstance becomes an opportunity for a 
creditor to reset the estimates used for the good faith analysis under 
Sec.  1026.19(e)(3)(ii). Limiting legitimate reasons for revisions for 
charges subject to the ten percent tolerance rule to situations where 
the changed circumstance causes the aggregate amount of all such 
charges to increase by more than ten percent is the current rule under 
Regulation X and the Bureau's intention. Otherwise, if a creditor is 
allowed to reset the estimate used for the good faith analysis under 
Sec.  1026.19(e)(3)(ii) every time there is a changed circumstance, it 
weakens the ten percent tolerance rule. Finally, with respect to the 
status of the HUD RESPA FAQs that address changed circumstances, the 
final rule will replace the HUD RESPA FAQs with respect to transactions 
subject to Sec.  1026.19(e), (f), and (g). But with respect to 
transactions currently subject to Regulation X, but will not be subject 
to Sec.  1026.19(e), (f), and (g), the HUD RESPA FAQs will continue to 
apply. Accordingly, HUD RESPA FAQs, instead of the final rule, will 
continue to apply to reverse mortgage transactions and federally 
related mortgage loans made by persons that are not ``creditors'' under 
Regulation Z.
19(e)(3)(iv)(B) Changed Circumstance Affecting Eligibility
    Section 1024.7(f)(2) of Regulation X currently provides that a 
revised RESPA GFE may be provided if a changed circumstance affecting 
borrower eligibility results in increased costs for any settlement 
service such that charges at settlement would exceed the tolerances for 
those charges. The Bureau proposed Sec.  1026.19(e)(3)(iv)(B), which 
would have provided that a valid reason for reissuance exists when a 
changed circumstance affecting the consumer's creditworthiness or the 
value of the collateral causes the estimated charges to increase. 
Proposed comment 19(e)(3)(iv)(B)-1 would have explained the requirement 
and provided illustrative examples. The Bureau did not receive any 
comments on proposed Sec.  1026.19(e)(3)(iv)(B). Accordingly, the 
Bureau is finalizing Sec.  1026.19(e)(3)(iv)(B) and comment 
19(e)(3)(iv)(B)-1 with minor revisions to enhance clarity.
19(e)(3)(iv)(C) Revisions Requested by the Consumer
    Section 1024.7(f)(3) of Regulation X currently provides that a 
revised RESPA GFE may be provided if a borrower requests changes to the 
mortgage loan identified in the GFE that change the settlement charges 
or the terms of the loan. The Bureau incorporated this same concept in 
proposed Sec.  1026.19(e)(3)(iv)(C), which would have provided that a 
valid reason for reissuance exists when a consumer requests revisions 
to the credit terms or the settlement that cause estimated charges to 
increase. Proposed comment 19(e)(3)(iv)(C)-1 would have illustrated 
this requirement with an example.
    A law firm commenter asserted that it was unreasonable to require a 
creditor to provide revised disclosures even though the reason for the 
revision was due to a borrower-requested change. The Bureau has 
considered the comment but is finalizing Sec.  1026.19(e)(3)(iv)(C) and 
comment 19(e)(3)(iv)(C)-1 as proposed because Sec.  
1026.19(e)(3)(iv)(C) reflects the current rule in Regulation X, Sec.  
1024.7(f)(3). Creditors should be able to comply with this requirement, 
because currently they are required to comply with an identical 
requirement (Sec.  1024.7(f)(3)) under Regulation X.
19(e)(3)(iv)(D) Interest Rate Dependent Charges
    Section 1024.7(f)(5) of Regulation X provides that, if the interest 
rate has not been locked, or a locked interest rate has expired, the 
charge or credit for the interest rate chosen, the adjusted origination 
charges, per diem interest, and loan terms related to the interest rate 
may change. It also provides that when the interest rate is later 
locked, a revised RESPA GFE must be provided showing the revised 
interest rate-dependent charges and terms. The Bureau proposed to 
retain the same basic approach in proposed Sec.  1026.19(e)(3)(iv)(D) 
and to illustrate the requirement with examples. The Bureau sought 
comment on the frequency and magnitude of revisions to the interest 
rate dependent charges, the frequency of cancellations of contractual 
agreements related to interest rate dependent charges, such as rate 
lock agreements, and the reasons for such revisions and cancellations. 
Although the Bureau ultimately proposed taking the same approach as the 
current regulation, it acknowledged in the proposal a number of 
concerns that it believed warranted careful monitoring of the market. 
While the Bureau acknowledged that several costs are affected by the 
consumer's rate and thus may fluctuate until that rate is locked, the 
Bureau expressed concern that the current provision in Regulation X 
could be used to harm consumers by engaging in rent-seeking behavior or 
attempting to circumvent the requirements of TILA or RESPA. However, 
the Bureau was unaware of any evidence that creditors were in fact 
using current Regulation X Sec.  1024.7(f)(5) to harm consumers or to 
circumvent RESPA.
Comments
    A State trade association commenter representing bankers stated 
that it believed that the regulatory text in proposed Sec.  
1026.19(e)(3)(iv)(D) with respect to when a creditor must provide the 
revised disclosures to the consumer when the interest rate is set was 
in conflict with the general redisclosure rule proposed in Sec.  
1026.19(e)(4)(i) because proposed Sec.  1026.19(e)(3)(iv)(D) stated 
that the creditor must provide revised disclosures ``on the date that 
the interest rate is reset,'' whereas the general redisclosure rule 
gave the creditor three business days to deliver the revised 
disclosures. The commenter also requested that the Bureau clarify 
whether redisclosure is necessary when the locking of the interest rate 
does not change the interest rate or cost estimates disclosed on the 
original Loan Estimate. Similarly, a community bank commenter asserted 
that if the interest rate is locked after the creditor has provided the 
original Loan Estimate, the creditor should be permitted to determine 
whether to provide redisclosures if there is no change to the

[[Page 79833]]

disclosures that were originally provided.
    A large bank commenter stated that the final rule should require 
that the revised Loan Estimate that is provided after the interest rate 
has been set should reflect all the items impacted by the revisions to 
the interest rate, bona fide discount points, and lender credits. The 
commenter asserted that the requirement would help ensure that 
information about monthly payments, projected payments, the cash to 
close amount, loan costs, and disclosures in the ``Comparison'' section 
of the Loan Estimate are also revised.
Final Rule
    The Bureau has considered the comments, and for reasons set forth 
below, is finalizing Sec.  1026.19(e)(3)(iv)(D) and comment 
19(e)(3)(iv)(D)-1 with revisions to enhance clarity. The delivery 
requirement set forth in proposed 1026.19(e)(4)(i) was intended to 
establish the maximum amount of time that a creditor may let pass 
before providing the consumer with the revised Loan Estimate. The 
Bureau does not believe that creditors need that much time in 
situations where the interest rate is locked because the creditor 
controls when it executes the rate lock agreement. But in consideration 
of the comments, the Bureau is adding comment 19(e)(4)(i)-2 to explain 
the relationship between Sec.  1026.19(e)(4)(i) and Sec.  
1026.19(e)(3)(iv)(D). The comment clarifies that if the reason for the 
revision is provided under Sec.  1026.19(e)(3)(iv)(D), notwithstanding 
the three-business-day rule set forth in Sec.  1026.19(e)(4)(i), Sec.  
1026.19(e)(3)(iv)(D) requires the creditor to provide a revised version 
of the disclosures required under Sec.  1026.19(e)(1)(i) on the date 
the interest rate is locked. Comment 19(e)(4)(i)-2 also references 
comment 19(e)(3)(iv)(D)-1.
    Final Sec.  1026.19(e)(3)(iv)(D) and commentary also clarify that 
if the interest rate is simply set, but there is no rate lock 
agreement, Sec.  1026.19(e)(3)(iv)(D) does not apply. Upon a review of 
the proposed rule text and commentary, the Bureau acknowledges that the 
proposed language could have caused confusion about whether the setting 
of the interest rate requires redisclosure where a rate lock agreement 
does not exist. But the Bureau intended that Sec.  1026.19(e)(3)(iv)(D) 
only applies in situation where a rate lock agreement has been entered 
into between the creditor and borrower, or where such agreement has 
expired. The Bureau has made clarifying revisions to the rule text and 
commentary to address the potential confusion.
    With respect to the request that the final rule require that the 
revised Loan Estimate reflect all of the items that are impacted by the 
revisions to the interest rate, bona fide discount points, and lender 
credits, the Bureau has made adjustments to the final rule text to 
clarify that the revised version of the Loan Estimate shall contain 
revisions to any other interest rate dependent charges and terms. The 
Bureau notes that this is the current rule under Regulation X, Sec.  
1024.7(f)(5). Lastly, as discussed above, the Bureau intends that the 
creditor redisclose interest rate dependent charges and terms when the 
interest rate is locked. Accordingly, if the creditor has to redisclose 
points because the consumer is paying points to the creditor to reduce 
the interest rate, the consumer could be paying both bona fide discount 
points, as defined in Sec.  1026.32(b)(3), when the 2013 ATR Final Rule 
takes effect, and points that are not bona fide discount points. Final 
Sec.  1026.19(e)(3)(iv)(D) provides that on the date the interest rate 
is locked, the creditor shall provide a revised version of the 
disclosures required under Sec.  1026.19(e)(1)(i) to the consumer with 
the revised interest rate, the points disclosed pursuant to Sec.  
1026.37(f)(1),\211\ lender credits, and any other interest rate 
dependent charges and terms. The Bureau believes that this adjustment 
will facilitate compliance with this final rule because Sec.  
1026.19(e)(3)(iv)(D) now clearly indicates that to comply, the creditor 
must redisclose all the points disclosed pursuant Sec.  1026.37(f)(1), 
even if they include points in addition to the bona fide discount 
points under Sec.  1026.32(b)(3).
---------------------------------------------------------------------------

    \211\ The term ``bona fide discount points'' was not defined 
until the issuance of the Bureau's 2013 ATR Final Rule, which post-
dated the issuance of the TILA-RESPA Proposal.
---------------------------------------------------------------------------

19(e)(3)(iv)(E) Expiration
    Section 1024.7(f)(4) of Regulation X currently provides that if a 
borrower does not express an intent to continue with the transaction 
within ten business days after the RESPA GFE is provided, or such 
longer time specified by the loan originator, then the loan originator 
is no longer bound by the RESPA GFE. Similarly, the Bureau proposed 
Sec.  1026.19(e)(3)(iv)(E), which would have provided that a valid 
reason for reissuance exists when a consumer expresses an intent to 
proceed more than ten business days after the disclosures are provided. 
Proposed comment 19(e)(3)(iv)(E)-1 would have illustrated this 
requirement with an example. The Bureau explained in the proposal that 
it believed that it was important for consumers to be able to rely on 
the estimated charges for a sufficient period of time to permit 
shopping, and that ten business days was a reasonable period. Once it 
expired, however, the Bureau believed that creditors should be 
permitted to provide revised disclosures that may reflect new charges.
    The Bureau received few comments on the proposal. Some industry 
commenters sought clarification on how to count the ten-business-day 
period if the creditor provided the consumer with a revised Loan 
Estimate within the ten-business-day period before the consumer has 
indicated an intent to proceed. A mortgage broker commenter stated that 
mortgage brokers do not have control over third-party fees, and 
therefore, making the Loan Estimate binding on a mortgage broker for 
ten business days would be impractical.
    The Bureau is finalizing Sec.  1026.19(e)(3)(iv)(E) and comment 
19(e)(3)(iv)(E)-1 substantially proposed, with revisions to enhance 
clarity. As adopted, Sec.  1026.19(e)(3)(iv)(E) clarifies how to count 
the ten-business-day period, because it provides that the ten-business-
day period begins after the disclosures required under Sec.  
1026.19(e)(1)(i) are provided pursuant to Sec.  1026.19(e)(1)(iii). 
Lastly, with respect to the assertion that the mortgage broker should 
not be bound by the terms of the original Loan Estimate for ten 
business days after the mortgage broker provides it to the consumer, as 
noted above, the Bureau believes that a mortgage broker must comply 
with all of the requirements of Sec.  1026.19(e) if the mortgage broker 
provides a consumer with the Loan Estimate.
19(e)(3)(iv)(F) Delayed Settlement Date on a Construction Loan
    Section 1024.7(f)(6) of Regulation X currently provides that in 
transactions involving new construction home purchases, where 
settlement is expected to occur more than 60 calendar days from the 
time a RESPA GFE is provided, the loan originator cannot issue a 
revised RESPA GFE unless the loan originator provided the borrower with 
a clear and conspicuous disclosure stating that at any time up until 60 
calendar days prior to the real estate closing, the loan originator may 
issue a revised RESPA GFE. The Bureau concluded that this approach made 
sense where consummation will not occur for an extended period of time. 
Accordingly, proposed Sec.  1026.19(e)(3)(iv)(F) would have provided 
that a valid reason for

[[Page 79834]]

revision exists on construction loans when consummation is scheduled to 
occur more than 60 days after delivery of the estimated disclosures, 
provided that the consumer was alerted to this fact when the estimated 
disclosures were provided. Proposed comment 19(e)(3)(iv)(F)-1 would 
have clarified that a loan for the purchase of a home either to be 
constructed or under construction is considered a construction loan to 
purchase and build a home for the purposes of Sec.  
1026.19(e)(3)(iv)(F) and would have illustrated the requirement with 
examples. The Bureau stated in the proposal that the proposed comment 
would be consistent with guidance provided by HUD in the HUD RESPA FAQs 
p. 21,  2 (``GFE--New construction''). The Bureau did not 
receive any comments on proposed Sec.  1026.19(e)(3)(iv)(F), and is 
adopting Sec.  1026.19(e)(3)(iv)(F) and comment 19(e)(3)(iv)(F)-1 as 
proposed, except for minor revisions to enhance clarity.
19(e)(4) Provision and Receipt of Revised Disclosures
19(e)(4)(i) General Rule
    TILA's requirement that creditors provide corrected disclosures is 
not linked to the time when a creditor discovers that a correction is 
necessary. Instead, section 128(b)(2)(D) of TILA provides that the 
creditor shall furnish additional, corrected disclosures to the 
borrower not later than three business days before the date of 
consummation of the transaction, if the previously disclosed annual 
percentage rate is no longer accurate, as determined under TILA section 
107(c), and this requirement is set forth in current Sec.  
1026.19(a)(2)(ii). RESPA does not expressly address timing requirements 
for the delivery of revised RESPA GFEs, but Regulation X generally 
requires that a revised RESPA GFE must be provided within three 
business days of the creditor receiving information sufficient to 
establish a reason for revision.\212\
---------------------------------------------------------------------------

    \212\ ``If a revised GFE is to be provided, the loan originator 
must do so within 3 business days of receiving information 
sufficient to establish changed circumstances.'' 12 CFR 1024.7(f)(1) 
and (2). ``If a revised GFE is to be provided, the loan originator 
must do so within 3 business days of the borrower's request.'' 12 
CFR 1024.7(f)(3). ``The loan originator must provide the revised GFE 
within 3 business days of the interest rate being locked or, for an 
expired interest rate, re-locked.'' 12 CFR 1024.7(f)(5).
---------------------------------------------------------------------------

    While both regulations contain redisclosure requirements, their 
approaches are different. Regulation Z ensures that the consumer is 
made aware of changes at a specific point in time before consummation, 
but does not require the creditor to keep the consumer informed of 
incremental changes during the loan origination process. In contrast, 
Regulation X does, but those changes may occur up to the day of 
settlement.
    The Bureau proposed adopting the Regulation X approach because it 
believed that intermittent redisclosure of the integrated Loan Estimate 
is necessary under RESPA because settlement service provider costs 
typically fluctuate during the mortgage loan origination process. 
Furthermore, the Bureau stated its belief that intermittent 
redisclosure is consistent with the purposes of TILA because it 
promotes the informed use of credit by keeping the consumer apprised of 
changes in costs.
    Accordingly, the Bureau proposed Sec.  1026.19(e)(4)(i), which 
would have provided that, if a creditor delivers a revised Loan 
Estimate, the creditor must do so within three business days of 
establishing that a valid reason for revision exists. Proposed comment 
19(e)(4)-1 would have illustrated this requirement with examples.
Comments
    The Bureau received a number of comments on the proposal, 
including, as discussed below, comments urging various alternative 
approaches to the incremental approach to redisclosure the Bureau 
proposed. A large bank commenter asserted that the proposed three-
business-day redisclosure requirement ignores the realities of how 
creditors process information and underwrite loans and is arbitrary. It 
stated that 50 percent of lender credits and refunds it issues as 
required by current Regulation X are caused by its inability to meet 
Regulation X's three-business-day redisclosure requirement. The 
commenter stated that documenting the day that the event that caused 
the changed circumstance is difficult and uncertain because information 
about the event may take time to reach the division inside the 
creditor's organization that is responsible for providing the revised 
disclosures, and that in most cases, information must be verified by 
the creditor. The commenter also stated that in many cases, it is 
simply not possible for the creditor to verify that a changed 
circumstance has occurred and ensure that a revised disclosure is 
issued within three business days. The large bank commenter also 
asserted that the three-business-day requirement for redisclosure is 
especially unworkable with respect to charges in the ten percent 
tolerance category because when the estimated sum of charges exceeds 
the ten percent threshold, it could be the cumulative result of 
multiple changed circumstances.
    Large bank commenters and industry trade associations urged the 
Bureau to adopt an alternative approach to the redisclosure requirement 
set forth in proposed Sec.  1026.19(e)(4)(i). The commenters described 
the approach as the ``milestone approach.'' Under the ``milestone 
approach,'' revised disclosures would only have to be provided to the 
consumer at specific points in the mortgage origination process, such 
as the time that the interest rate is set and at the time of loan 
commitment because the occurrence of these events usually trigger 
closing cost changes. The commenters asserted that adopting a 
``milestone approach'' would benefit consumers because it would address 
the issue of information overload. One of the supporters of the 
``milestone approach'' stated that a series of RESPA GFEs is often 
provided to the consumer under the current Regulation X and often 
desensitizes the consumer to the information provided. The commenter 
asserted that information overload would worsen under the proposal 
because the Bureau's proposed definition of ``application'' would lead 
to more redisclosures. Another large bank commenter supporting the 
``milestone approach'' stated that because the ``milestone approach'' 
would tie to key events in the origination process, the approach still 
ensures that the consumer gets a complete picture of the loan terms. 
One of the large bank commenters that supported the ``milestone 
approach'' also asserted that the approach would ease compliance burden 
because it would allow creditors to develop streamlined and efficient 
compliance programs, thus facilitating supervision.
    Industry trade associations representing banks and mortgage lenders 
also advocated for redisclosure requirements different than what the 
Bureau proposed. The same industry trade association representing 
mortgage lenders asserted that it would be far less confusing to 
consumers and less burdensome to creditors if a redisclosure made 
within 30 days after receipt of a consumer's intent to proceed is 
deemed timely for all changed circumstances that occurred more than 
three days before the redisclosure is provided. As discussed above in 
the section-by-section analysis of Sec.  1026.19(e)(1)(iii), industry 
trade associations representing banks and mortgage lenders expressed 
the view that the best solution to excessive redisclosure would be to 
require the creditor to provide a Loan Estimate

[[Page 79835]]

some number of days after the consumer communicates an intent to 
proceed, and the commenters indicated a preference that it be 30 days. 
With respect to the provision of revised Loan Estimates, commenters 
expressed the view that the creditor should not have to provide the 
revised Loan Estimate to the consumer if the only items that have 
changed after the original Loan Estimate was provided are the closing 
date and charges related to the closing date. They also expressed the 
view that sending revised Loan Estimates in these situations would be 
redundant.
    Industry trade associations representing banks and mortgage lenders 
asked if a revised Loan Estimate is required within three business days 
if fees increased due to a changed circumstance or borrower-requested 
change. They also asked if a revised Loan Estimate is ever required 
when there is not a changed circumstance or borrower-requested change. 
The commenters additionally asked if a creditor may redisclose based on 
underwriting information without receiving consumer approval to make 
the changes. The commenters also stated that it appeared that the 
proposal would have given the creditor the option of either delivering 
a revised Loan Estimate within three business days of a valid reason 
for revision, or waiting until four days before consummation to deliver 
the revised Loan Estimate.
    The commenters also asserted that when new information is received, 
such as partial income verification, more than three business days is 
needed for the creditor to evaluate the information to comply with 
ability-to-repay and investor requirements. The commenters requested 
confirmation from the Bureau that the three-business-day period does 
not begin until after the evaluation is complete. A community bank 
commenter requested specific guidance from the Bureau as to the 
determination of when the three-business-day period begins for changed 
circumstances in instances when there may be new information received 
by the borrower or inconclusive information received. The commenter 
stated that in order to prevent an endless stream of redisclosures, the 
three-business day period should begin when the lender has fully 
evaluated the information.
Final Rule
    After consideration of the comments, the Bureau is adopting the 
Regulation X approach to redisclosures that the Bureau proposed. The 
Bureau believes the approach best ensures that consumers are kept 
informed of incremental changes during the loan origination process by 
creditors, and thus, would best serve the policy goals of both TILA and 
RESPA, which the Bureau discussed in the proposal and above. 
Additionally, given that a number of industry commenters have raised 
concerns about the cost of redisclosures, the Bureau believes that 
creditors are incented to avoid excessive redisclosures. The Bureau 
also believes that the final rule facilitates the goal of limiting 
excessive redisclosures by limiting legitimate reasons for 
redisclosures to the six exceptions set forth in Sec.  
1026.19(e)(3)(iv). The Bureau also is not persuaded that there would be 
significant compliance burden because the final rule applies the 
current timing requirement in Regulation X for delivery of the revised 
RESPA GFE to the Loan Estimate.
    In response to the concern that the Bureau's proposed definition of 
``application'' would lead to more redisclosures, the Bureau has 
addressed the concern in great detail in the section-by-section 
analysis of Sec.  1026.2(a)(3), above, and has concluded that it does 
not believe that the final rule will lead to more redisclosures. In 
consideration of the various requests for clarification on the timing 
requirement for the delivery of the revised Loan Estimate, the Bureau 
has revised proposed Sec.  1026.19(e)(4)(i) and proposed comment 
19(e)(4)-1, renumbered as comment 19(e)(4)(i)-1, to facilitate 
compliance. Final Sec.  1026.19(e)(4)(i) provides that subject to the 
requirements of Sec.  1026.19(e)(4)(ii), if a creditor uses a revised 
estimate pursuant to Sec.  1026.19(e)(3)(iv) for the purpose of 
determining good faith under Sec.  1026.19(e)(3)(i) and (ii), the 
creditor shall provide a revised version of the disclosures required 
under Sec.  1026.19(e)(1)(i) reflecting the revised estimate within 
three business days of receiving information sufficient to establish 
that one of the reasons for revision provided under Sec.  
1026.19(e)(3)(iv)(A) through (C), (E) and (F) applies. Comment 
19(e)(4)(i)-1 explains the three-business-day requirement set forth in 
Sec.  1026.19(e)(4)(i) and provides illustrative examples. 
Additionally, as noted above in the section-by-section analysis of 
Sec.  1026.19(e)(3)(iv)(D), the Bureau is adding comment 19(e)(4)(i)-2 
to clarify the relationship between Sec.  1026.19(e)(3)(iv)(D) and 
(e)(4)(i).
    Together with the revisions to the text of Sec.  1026.19(e)(3)(iv) 
and related commentary, the Bureau believes that the revisions to the 
text of Sec.  1026.19(e)(4)(i) and related commentary make it 
unnecessary to further clarify whether a revised Loan Estimate must be 
provided when there is not a changed circumstance or borrower-requested 
change, other than the fact that it is four days before closing.
    On the question of whether a creditor may issue a revised Loan 
Estimate without receiving consumer approval to make the changes, the 
Bureau believes that the final rule and commentary are clear that 
creditors are not required to obtain consumer approval before the 
creditor provides a revised Loan Estimate. The Bureau also believes 
that the final rule and commentary are clear that a creditor may not 
wait until four days before consummation to deliver the revised Loan 
Estimate when doing so violates the three-business-day requirement set 
forth Sec.  1026.19(e)(4) or the day-of requirement set forth in Sec.  
1026.19(e)(3)(iv)(D).
    With respect to requests that the Bureau clarify when the three-
business-day delivery period begins, the Bureau believes that the 
examples set forth in comment 19(e)(1)(4)(i)-1 clearly illustrate that 
the three-business-day begins on the date that the creditor receives 
information that sufficiently establishes the reason for revision. The 
Bureau believes that the comment is clear in explaining that the burden 
is on the creditor to show that it has a reasonable basis to believe 
that the information it receives does not sufficiently establish the 
reason for the revision.
    Lastly, in response to the comment from a large bank creditor that 
the proposed redisclosure delivery requirement would be especially 
unworkable for charges in the ten percent tolerance category, the 
Bureau believes that comment 19(e)(4)(i)-1.ii clearly illustrates that 
with respect to fees included in the ten percent tolerance category, 
the three-business day period is counted from the date on which the 
creditor has received sufficient information to establish that the sum 
of all fees included in the category of fees subject to the ten percent 
tolerance rule has exceeded the original estimated sum of such fees by 
more than ten percent due to changed circumstances. In other words, if, 
for example, the creditor receives information on May 1, that a fee 
included in the ten percent tolerance category will increase by an 
amount totaling six percent of the originated estimated sum of charges 
in the ten percent tolerance category, and then on May 8th, the 
creditor receives information that a changed circumstance will cause a 
different fee

[[Page 79836]]

included in the ten percent tolerance category to increase by an amount 
totaling two percent of the originated estimated sum of charges in the 
ten percent tolerance category, and then on June 15th the creditor 
receives information that a changed circumstance will cause a different 
fee included in the ten percent tolerance category to increase by an 
amount totaling four percent of the originated estimated sum of charges 
in the ten percent tolerance category, to comply with Sec.  
1026.19(e)(4)(i), the creditor would have to provide revised 
disclosures reflecting the 12 percent increase by June 18th, assuming 
that June 16th, 17th, and 18th are business days for purposes of Sec.  
1026.2(a)(6). The Bureau adopts Sec.  1026.19(e)(4)(i) pursuant to its 
authority under TILA section 105(a), RESPA section 19(a), Dodd-Frank 
Act section 1032(a), and, for residential mortgage loans, sections 
129B(e) of TILA and 1405(b) of the Dodd-Frank Act.
19(e)(4)(ii) Relationship to Disclosures Required Under Sec.  
1026.19(f)(1)(i)
    Proposed Sec.  1026.19(e)(4)(ii) would have provided that the 
creditor shall deliver revised versions of the disclosures required by 
Sec.  1026.19(e) in a manner that ensures such revised disclosures are 
not received on the same business day as the consumer receives the 
disclosures required by Sec.  1026.19(f)(1)(i). The Bureau proposed 
this provision pursuant to its authority under TILA section 105(a), 
RESPA section 19(a), Dodd-Frank Act section 1032(a), and, for 
residential mortgage loans, Dodd-Frank Act section 1405(b). Proposed 
comment 19(e)(4)-2 would have clarified that revised disclosures may 
not be delivered at the same time as the final disclosures. The 
proposed comment would have also explained that creditors would comply 
with the requirements of Sec.  1026.19(e)(4) if the revised disclosures 
are reflected in the disclosures required by Sec.  1026.19(f)(1)(i) 
(i.e., the Closing Disclosure). This proposed comment would have also 
included illustrative examples of the requirement.
    As explained above, the purposes of RESPA and TILA include 
effective advance disclosure of settlement costs, and the informed use 
of credit by consumers. See TILA section 102; RESPA section 2. Section 
105(a) of TILA also permits the Bureau to prescribe regulations that 
would improve consumers' ability to understand the mortgage loan 
transaction. The Dodd-Frank Act enhances TILA's focus by placing 
special emphasis on the requirement that disclosures must be made in a 
way that is clear and understandable to the consumer. Section 1405 of 
the Dodd-Frank Act focuses on improving ``consumer awareness and 
understanding of transactions involving residential mortgage loans 
through the use of disclosures.'' The Bureau stated in the proposal 
that it was aware that, in some cases, creditors have provided a 
revised RESPA GFE at the real estate closing along with the RESPA 
settlement statement. The Bureau stated in the proposal its concern 
that this practice may be confusing for consumers and may diminish 
their awareness and understanding of the transaction.
    The Bureau also stated in the proposal that it recognized there 
were cases in which a consumer might not have been confused by 
receiving good faith estimates on the same day, or even at the same 
time, as the consumer receives the actual settlement costs. However, 
because the estimated costs would match the actual costs, the Bureau 
expressed concern that consumers could be confused by seemingly 
duplicative disclosures. The Bureau was also concerned that this 
duplication could contribute to information overload stemming from too 
many disclosures, which could, in turn, inhibit the consumer's ability 
to understand the transaction. Accordingly, the Bureau proposed Sec.  
1026.19(e)(4)(ii) to prohibit creditors from providing a consumer with 
disclosures of estimated and actual costs at the same time. To draw a 
clear line to facilitate compliance, the creditor would not have 
complied with the requirements of proposed Sec.  1026.19(e) if the 
consumer received revised versions of the disclosures required under 
Sec.  1026.19(e)(1)(i) on the same business day as the consumer 
received the disclosures required by Sec.  1026.19(f)(1)(i).
Comments
    Reaction to the proposed prohibition on the simultaneous delivery 
of the Loan Estimate and the Closing Disclosure was mixed. In joint 
comments, trade associations representing State financial services 
regulators supported the prohibition. They stated that the proposed 
prohibition would incent creditors to avoid surprising consumers and 
intentionally under-estimating closing costs to get borrowers to select 
loans that may not be in the borrower's best interest. A non-depository 
lender that makes manufactured home loans stated that it supported the 
aspect of the proposal that would have permitted the creditor to 
reflect a revised disclosure on the Closing Disclosure.
    In contrast, an industry trade association commenter representing 
non-depository financial services providers stated that the proposed 
prohibition on the simultaneous delivery of the Loan Estimate and 
Closing Disclosure could delay closings because settlement costs could 
increase shortly before the closing, and the creditor must be able to 
provide the revised Loan Estimate to reflect the increase. Industry 
trade associations representing banks and mortgage lenders stated that 
the requirement that a revised Loan Estimate must be received by the 
consumer four days before the consummation does not take into account 
the significance of the change or the burden associated with the 
waiting period. The commenters asserted that a four-day waiting period 
between the receipt of the revised Loan Estimate and consummation was 
unnecessary because the Bureau was also proposing to impose a three-
business-day waiting period between the receipt of the Closing 
Disclosure and consummation in proposed Sec.  1026.19(f)(1)(ii). A 
regional bank holding company expressed concern that under the 
proposal, a consumer could receive the Loan Estimate and the Closing 
Disclosure simultaneously if the creditor sends the disclosures by 
mail.
Final Rule
    The Bureau has considered the comments and believes that Sec.  
1026.19(e)(4)(ii), as proposed, would not have delayed closings or 
limited a creditor's ability to manage cost increases and disclose them 
to the consumer, because although it would have prohibited simultaneous 
delivery of the Loan Estimate and the Closing Disclosure, proposed 
comment 19(e)(4)-2 would have clarified that under certain 
circumstances, a creditor could comply with Sec.  1026.19(e)(4) by 
reflecting revised disclosures on the Closing Disclosure. The Bureau 
acknowledges that some commenters did not understand proposed Sec.  
1026.19(e)(4)(ii). Accordingly, the Bureau is revising the text of 
proposed Sec.  1026.19(e)(4)(ii) and comment 19(e)(4)-2, renumbered as 
19(e)(4)(ii)-1. As adopted, Sec.  1026.19(e)(4)(ii) provides that the 
creditor shall not provide a revised version of the disclosures 
required under Sec.  1026.19(e)(1)(i) on or after the date on which the 
creditor provides the disclosures required under Sec.  
1026.19(f)(1)(i). Section 1026.19(e)(4)(ii) also provides that the 
consumer must receive a revised version of the disclosures required 
Sec.  1026.19(e)(1)(i) not later than four business days prior to 
consummation.

[[Page 79837]]

The Bureau believes that this addresses the regional bank holding 
company commenter's concern with the proposal that a consumer could 
receive the Loan Estimate and the Closing Disclosure simultaneously. 
Lastly, Sec.  1026.19(e)(4)(ii) provides that if the revised version of 
the disclosures required under Sec.  1026.19(e)(1)(i) is not provided 
to the consumer in person, the consumer is considered to have received 
such version three business days after the creditor delivers such 
version or places such version in the mail. This aspect of Sec.  
1026.19(e)(4)(ii) mirrors Sec.  1026.19(e)(1)(iv). Accordingly, comment 
19(e)(4)(ii)-1 references comments 19(e)(1)(iv)-1 and -2. The Bureau 
adopts Sec.  1026.19(e)(4)(ii) and comment 19(e)(4)(ii)-2 pursuant to 
its authority under TILA section 105(a), RESPA section 19(a), Dodd-
Frank Act section 1032(a), and, for residential mortgage loans, Dodd-
Frank Act section 1405(b).
19(f) Mortgage Loans Secured by Real Property--Final Disclosures
    As discussed in the section-by-section analysis of Sec.  1026.19 
above, the disclosure requirements prior to consummation of a closed-
end credit transaction under TILA apply only to creditors. For certain 
mortgage transactions, TILA requires creditors to furnish a corrected 
disclosure to the consumer not later than three business days before 
the date of consummation of the transaction if the prior disclosed APR 
has become inaccurate. See 15 U.S.C. 1638(b)(2)(A), (D). In contrast, 
RESPA generally applies to lenders and settlement agents. RESPA 
requires the person conducting the settlement (e.g., the settlement 
agent) to complete a settlement statement and make it available for 
inspection by the borrower at or before settlement. See 12 U.S.C. 
2603(b). RESPA also provides that, upon the request of the borrower, 
the person who conducts the settlement must permit the borrower to 
inspect those items which are known to such person on the settlement 
statement during the business day immediately preceding the day of 
settlement. Id.
    Regulation Z implements TILA's requirement that the creditor 
deliver corrected disclosures and currently provides that, if the 
annual percentage rate disclosed in the early TILA disclosure becomes 
inaccurate, the creditor shall provide corrected disclosures with all 
changed terms. See 12 CFR 1026.19(a)(2)(ii). Regulation Z further 
provides that the consumer must receive the corrected disclosures no 
later than three business days before consummation. Id. Regulation X 
provides that the settlement agent shall permit the borrower to inspect 
the RESPA settlement statement, completed to set forth those items that 
are known to the settlement agent at the time of inspection, during the 
business day immediately preceding settlement. See 12 CFR 1024.10(a).
    As noted above, section 1032(f) of the Dodd-Frank Act provides that 
the Bureau shall propose for public comment rules that combine the 
disclosures required under TILA and sections 4 and 5 of RESPA. In 
addition, sections 1098 and 1100A of the Dodd-Frank Act amended RESPA 
section 4(a) and TILA section 105(b), respectively, to require that the 
Bureau establish the integrated disclosure requirements for ``mortgage 
loan transactions'' that are ``subject to both or either provisions 
of'' RESPA sections 4 and 5 (the RESPA GFE and RESPA settlement 
statement requirements) and TILA. See 12 U.S.C. 2604(a); 15 U.S.C. 
1604(b). As noted above, although Congress mandated that the Bureau 
integrate the rules under TILA and RESPA, it did not reconcile the 
timing requirements or the division of responsibilities between the 
creditor and settlement agent in TILA and RESPA.
    In general, the proposed rule would have required that consumers 
receive the Closing Disclosure three business days before consummation 
in all circumstances and that, if any revisions were made to the 
Closing Disclosure before consummation, consumers would receive a 
revised Closing Disclosure that would have triggered an additional 
three-business-day waiting period, subject to several limited 
exceptions. Those exceptions would have included changes made due to 
consumer-seller negotiations, changes to reflect refunds curing 
violations of the good faith analysis at proposed Sec.  1026.19(e)(3), 
and changes in which the amount actually paid by the consumer at 
closing does not exceed $100. The Bureau also would have included a 
limited waiver provision that would have allowed consumers to waive or 
modify the timing requirements in cases involving a bona fide personal 
financial emergency.
    In response to public comment, the final rule narrows the 
circumstances in which changes that occur between initial provision of 
the Closing Disclosure and consummation would trigger a new three-
business-day waiting period. These changes are discussed in more detail 
below in the section-by-section analyses of Sec.  1026.19(f)(1)(ii) and 
(f)(2).
    The proposed rule also set forth two alternative requirements for 
who would be responsible for providing the Closing Disclosure. Under 
alternative 1, the creditor would have been solely responsible for 
providing the Closing Disclosure. Under alternative 2, the creditor 
would have been responsible for providing the Closing Disclosure, but 
would have been expressly permitted to share responsibility with a 
settlement agent. Settlement agents would have been required to comply 
with the provisions of Sec.  1026.19(f) and the creditor would have 
been responsible for ensuring the requirements of Sec.  1026.19(f) have 
been satisfied. In response to comments, the Bureau is finalizing 
alternative 2, as discussed in more detail in the section-by-section 
analysis of Sec.  1026.19(f)(1)(v) below.
    The Bureau received extensive public comment on the proposed rules 
for the delivery of the Closing Disclosure. In general, commenters 
focused on the proposed timing and responsibility for providing the 
Closing Disclosure. The vast majority of commenters were concerned the 
Bureau's proposed timing requirements would delay most or a large 
percentage of transactions. Commenters also provided extensive feedback 
on whether the creditor or settlement agent should bear responsibility 
for preparing and delivering the Closing Disclosure. The Bureau also 
received comment on other aspects of proposed Sec.  1026.19(f), as 
described more fully below in their respective sections. The final rule 
revises the proposal in response to these comments, as described 
throughout this section.
19(f)(1) Provision of Disclosures
19(f)(1)(i) Scope
    As discussed above, the integrated disclosure mandate requires the 
Bureau to reconcile several aspects of the disclosure requirements 
under TILA and RESPA. Thus, pursuant to its authority under sections 
105(a) of TILA, 19(a) of RESPA, and 1032(f) of the Dodd-Frank Act, the 
Bureau proposed to integrate the disclosure requirements in TILA 
section 128 and RESPA section 4 in Sec.  1026.19(f)(1)(i). This section 
would have provided that, in a closed-end consumer credit transaction 
secured by real property, other than a reverse mortgage subject to 
Sec.  1026.33, the creditor shall provide the consumer with the 
disclosures in Sec.  1026.38 reflecting the actual terms of the credit 
transaction. Proposed comment 19(f)(1)(i)-1 would have provided 
illustrative examples of this provision.

[[Page 79838]]

Comments
    As noted above and discussed in greater detail in Sec.  
1026.19(f)(1)(ii)(A) below, the Bureau received extensive public 
comment regarding the timing requirements for delivery of the Closing 
Disclosure. Among other things, many commenters from across the real 
estate and mortgage lending industries were concerned that a general 
requirement to disclose the ``actual terms'' of the transaction to the 
consumer three business days before consummation would prove 
impracticable because many costs are not known by that time. Commenters 
also observed that the proposed delivery rules, which would have 
created a presumption that the consumer received the Closing Disclosure 
three business days after it was placed in the mail, would have 
required that creditors and settlement agents disclose a large amount 
of information on the Closing Disclosure at least six business days, 
and possibly more, before consummation. Commenters further explained 
that information required to be disclosed on the Closing Disclosure 
derives from many sources, including settlement agents and other 
settlement service providers, and that creditors frequently do not 
select settlement service providers.
    Both creditor and settlement agent commenters were concerned that 
they could not guarantee that the ``actual terms'' of the transaction 
could be provided three business days before consummation in every 
case. Commenters also were concerned that a requirement to disclose the 
``actual terms'' of the transactions before consummation would delay 
closings because creditors would not provide the Closing Disclosure 
until all parties have finalized their information. Because settlement 
costs currently are not disclosed to borrowers until the day before or 
the day of settlement on the RESPA settlement statement, industry 
commenters were concerned about the feasibility of providing the 
``actual terms'' of the transaction before consummation, 
notwithstanding the proposed exceptions for consumer-seller 
negotiations, tolerance cures, and $100 or less increase in the cash to 
close amount. Commenters were concerned that the proposed exceptions 
would be too narrow to account for the many reasons closing costs could 
change before consummation, and that the need for revisions would arise 
inevitably, triggering a series of three-business-day waiting periods.
    Settlement agent commenters recommended that the Bureau integrate 
the final TILA disclosure with the RESPA settlement statement by cross-
referencing in Regulation Z certain RESPA-related disclosure 
requirements in Regulation X.\213\ A trade association representing the 
settlement agent and title insurance industry recommended that the 
final rule divide the Closing Disclosure requirements among Regulation 
Z and Regulation X, as a modification to one of the alternatives 
proposed by the Bureau with respect to who would be responsible for 
providing the Closing Disclosure. The commenter submitted draft 
language for the Bureau to consider adopting in the final rule.
---------------------------------------------------------------------------

    \213\ Although commenters provided these comments in response to 
the Bureau's proposal for which party would be responsible for 
providing the Closing Disclosure, discussed in more detail in the 
section-by-section analysis of Sec.  1026.19(f)(1)(v) below, the 
Bureau is addressing them here because they implicate the decision 
to integrate the disclosures in Sec.  1026.19(f).
---------------------------------------------------------------------------

Final Rule
    Actual terms. The Bureau believes consumers must receive accurate 
information about the actual terms of their transactions. The Bureau 
also appreciates that some information about the transaction may not be 
known with certainty three business days before consummation. The 
Bureau further understands that consumers and other parties may face 
costs if closings are delayed, as discussed in greater detail in the 
section-by-section analyses of Sec.  1026.19(f)(1)(ii)(A) and (f)(2) 
below. From the extensive public comments it received on this aspect of 
the proposal, the Bureau understands that creditors and settlement 
agents obtain transaction cost information from a wide variety of 
sources and third parties. The Bureau understands that some costs may 
only be known before or even after consummation. In light of these 
concerns, the final rule clarifies the requirements in Sec.  1026.19(f) 
with respect to the accuracy of the information contained in the 
Closing Disclosure provided three business days before consummation, as 
discussed in more detail below, and with respect to changes that may 
occur before and after consummation, as discussed in the section-by-
section analyses of Sec.  1026.19(f)(1)(ii)(A) and (f)(2) below.
    Final Sec.  1026.19(f)(1)(i) is adopted as proposed with a 
technical revision to the heading of Sec.  1026.19(f)(1). Final Sec.  
1026.19(f)(1)(i) provides that, in a closed-end consumer credit 
transaction secured by real property, other than a reverse mortgage 
subject to Sec.  1026.33, the creditor shall provide the consumer with 
the disclosures in Sec.  1026.38 reflecting the actual terms of the 
transaction.
    Proposed comment 19(f)(1)(i)-1 is adopted substantially as 
proposed, with revisions to conform to the final rule. The Bureau 
recognizes that changes may occur after the Closing Disclosure is first 
provided three business days before consummation. Accordingly, comment 
19(f)(1)(i)-1 states that if the disclosures provided pursuant to Sec.  
1026.19(f)(1)(i) do not contain the actual terms of the transaction, 
the creditor does not violate Sec.  1026.19(f)(1)(i) if the creditor 
provides corrected disclosures that contain the actual terms of the 
transaction and complies with the other requirements of Sec.  
1026.19(f), including the timing requirements in Sec.  
1026.19(f)(1)(ii) and (f)(2). The comment includes a reference to the 
timing requirements of Sec.  1026.19(f)(2) because that provision, as 
revised, includes timing and delivery requirements applicable to 
changes that may occur after the Closing Disclosure is first provided 
under Sec.  1026.19(f)(1)(ii)(A) three business days before 
consummation. See the section-by-section analysis of final Sec.  
1026.19(f)(2) for a discussion of these redisclosure requirements.
    The final rule also amends the example in the final sentence of 
proposed comment 19(f)(1)(i)-1 to reflect revisions made in the final 
rule to address changes that may be made before consummation without 
triggering additional three-business-day waiting periods under Sec.  
1026.19(f)(2). Specifically, the comment includes an example in which 
the consumer adds a mobile notary service after the creditor provides 
the Closing Disclosure, which requires that the creditor provide 
corrected disclosures at or before consummation, pursuant to Sec.  
1026.19(f)(2)(i). In addition, comment 19(f)(1)(i)-1 refers to 
``corrected disclosures'' rather than ``new disclosures'' to reflect 
the terminology currently used with respect to the final TILA 
disclosures in Regulation Z and for greater consistency throughout 
Sec.  1026.19(f).
    Best information reasonably available standard. As discussed in 
more detail in the section-by-section analyses of Sec.  
1026.19(f)(1)(ii)(A), (f)(2)(i), and (f)(2)(ii), the Bureau recognizes 
that the Closing Disclosure provided to consumers three business days 
before consummation pursuant to Sec.  1026.19(f)(1)(ii)(A) may require 
revisions, and that creditors may face compliance difficulties 
providing the ``actual terms'' of the transaction three business days 
before consummation. Accordingly, as discussed in more detail below, 
the final rule clarifies the

[[Page 79839]]

accuracy standards applicable to the Closing Disclosure provided three 
business days before consummation.
    While the Bureau acknowledges that the Closing Disclosure provided 
three business days before consummation may require subsequent 
revisions, the Bureau does not expect revisions will be made to terms 
that will impose significant, long-term costs to consumers. First, the 
final rule expands the zero percent tolerance category that applies to 
the estimated charges under Sec.  1026.19(e) from the category that is 
applicable to the RESPA GFE under current Regulation X to include 
charges paid to affiliates of the creditor or a mortgage broker and 
charges for which the consumer cannot shop for the service provider, as 
discussed in the section-by-section analysis of Sec.  1026.19(e)(3) 
above. Second, the final rule imposes redisclosure requirements 
resulting in a new three-business-day waiting period for certain 
changes to the APR, loan product, and prepayment penalties, discussed 
in the section-by-section analysis of Sec.  1026.19(f)(2) below. With 
respect to revisions resulting from the consumer's participation in the 
transaction, such as third-party services that the consumer shops for 
independently (e.g., owner's title insurance), the Bureau believes the 
consumer will be aware of cost increases associated with such services. 
In addition, to the extent changes occur between the time the Closing 
Disclosure is first provided and consummation that may affect the Cash 
to Close disclosure under Sec.  1026.38, the Bureau believes creditors 
and settlement agents will have an incentive to keep consumers informed 
of such changes to ensure the efficient operation of closings. In 
addition, the Bureau believes the final rule will provide industry with 
additional incentive to ensure consumers receive disclosures that are 
as accurate as possible at the time they are provided to minimize 
subsequent revisions.
    The accuracy standards with respect to the final TILA disclosures 
and the RESPA settlement statement currently differ under Regulation X 
and Regulation Z. RESPA section 4 requires that the RESPA settlement 
statement itemize all charges imposed upon the borrower and the seller, 
and current Regulation X Sec.  1024.8(b)(1) requires the disclosure of 
the ``actual charges'' paid by the borrower and seller. However, 
Regulation Z currently accounts for the practical difficulties that 
creditors may face in providing information on disclosures delivered 
before consummation. Regulation Z Sec.  1026.17 contains general 
disclosure requirements applicable to closed-end transactions, 
including mortgage loans. Section 1026.17(c)(2)(i) states that, ``[i]f 
any information necessary for an accurate disclosure is unknown to the 
creditor, the creditor shall make the disclosure based on the best 
information reasonably available at the time the disclosure is provided 
to the consumer, and shall state clearly that the disclosure is an 
estimate.'' Comments 17(c)(2)(i)-1, -2, and -3 contain guidance 
explaining the application of the best information reasonably available 
standard.
    While the Bureau did not propose to amend the text of Sec.  
1026.17(c)(2)(i), it did propose amendments to the commentary of that 
section to clarify the applicability of the best information reasonably 
available standard to the particular estimation and redisclosure 
requirements of Sec.  1026.19(e) and (f). For example, as discussed in 
the section-by-section analysis of Sec.  1026.17(c)(2)(i), proposed 
comment 17(c)(2)(i)-1 would have added a clause to the first sentence 
of the comment that states, ``[e]xcept as otherwise provided in 
Sec. Sec.  1026.19, 1026.37, and 1026.38, disclosures'' may be 
estimated when the exact information is unknown at the time disclosures 
are made. Proposed comment 17(c)(2)(i)-1 also would have added a 
sentence to the end of the existing comment that states, ``[f]or 
purpose of Sec.  1026.17(c)(2)(i), creditors must provide the actual 
amounts of the information required to be disclosed pursuant to Sec.  
1026.19(e) and (f), subject to the estimation and redisclosure rules in 
those provisions.'' Thus, creditors would have had to disclose the 
actual terms of the transaction for the disclosures under Sec.  
1026.19(f), including for disclosures provided three business days 
before consummation. Proposed comment 17(c)(2)(i)-2 (labeling 
estimates) would have added a sentence to the current comment to 
clarify that, for disclosures required by Sec.  1026.19(e), use of the 
Loan Estimate form H-24 of appendix H, pursuant to Sec.  1026.37(o), 
satisfies the requirement that the disclosure state clearly that the 
disclosure is an estimate, and that ``for all other disclosures,'' 
creditors have flexibility in labeling estimates.
    The Bureau believes the actual charges standard applicable to the 
RESPA settlement statement under Regulation X and the best information 
reasonably available standard generally applicable to closed-end 
disclosures provided before consummation under Regulation Z must be 
reconciled to integrate the disclosure requirements of RESPA and TILA. 
Accordingly, the final rule revises proposed comment 17(c)(2)(i)-1 to 
clarify that the best information reasonably available standard applies 
to the Closing Disclosure in certain circumstances. In addition, as 
discussed below, the final rule includes comment 19(f)(1)(i)-2, which 
is similar to the commentary generally applicable to Sec.  
1026.17(c)(2)(i), but differs in certain respects.
    Comment 17(c)(2)(i)-1 explains that creditors may estimate when the 
exact information is unknown to the creditor at the time disclosures 
are made, and that information is unknown if it is not reasonably 
available to the creditor at the time the disclosures are made. Comment 
19(f)(1)(i)-2 is substantially similar, but uses the phrase ``actual 
term'' instead of ``exact information'' to reflect the requirements of 
Sec.  1026.19(f)(1)(i) that the creditor provide the consumer with 
disclosures in Sec.  1026.38 reflecting the ``actual terms'' of the 
transaction. Because the best information reasonably available standard 
applies to the Closing Disclosure when it is provided three business 
days before consummation, comment 19(f)(1)(i)-2 provides that creditors 
may estimate disclosures provided under Sec.  1026.19(f)(1)(ii)(A) and 
(f)(2)(ii) when the actual term is unknown to the creditor at the time 
disclosures are made, consistent with Sec.  1026.17(c)(2)(i).
    Like comment 17(c)(2)(i)-1, comment 19(f)(1)(i)-2.i explains that 
the ``reasonably available'' standard requires that the creditor, 
acting in good faith, exercise due diligence in obtaining information. 
An actual term is unknown only if it is not ``reasonably available'' to 
the creditor at the time the disclosures are made, and the ``reasonably 
available'' standard requires that the creditor, acting in good faith, 
exercise due diligence in obtaining the information.
    The due diligence requirement is a critical element of the best 
information reasonably available standard. The Bureau expects creditors 
will conduct due diligence, and coordinate with settlement agents and 
other parties as necessary, to obtain information about the terms of 
the consumer's transaction so that the consumer receives a reliable 
Closing Disclosure three business days before consummation.
    To clarify the due diligence requirement, comment 19(f)(1)(i)-2.i 
includes guidance similar to comment 17(c)(2)(i)-1 with respect to how 
a creditor exercises due diligence in obtaining information. Unlike 
comment 17(c)(2)(i)-1, comment 19(f)(1)(i)-2.i includes settlement 
agents as an additional example of a third-party

[[Page 79840]]

source the creditor may rely on in obtaining information. The comment 
includes this example because the Bureau understands that creditors are 
likely to rely on settlement agents for many types of information that 
must be provided in the Closing Disclosure. Thus, the comment 
illustrates that creditors might look to a settlement agent for 
homeowners association dues or other information in connection with a 
real estate settlement. This comment is intended to be illustrative and 
not exhaustive of the types of parties or information that a creditor 
might consult in performing due diligence.
    If the creditor does not itself have the information regarding the 
actual terms, such as for the disclosures under Sec.  1026.38(j) and 
(k), the creditor may rely on a third party settlement agent for the 
transaction in obtaining information regarding the actual terms of the 
transaction. The creditor would not be considered to have conducted due 
diligence if the creditor did not attempt to obtain such information 
from the settlement agent. In such case, the creditor would not be 
permitted to use an estimate for the disclosure provided under Sec.  
1026.19(f)(1)(ii)(A).
    Comment 19(f)(1)(i)-2.i includes examples illustrating how a 
creditor exercises due diligence for purposes of Sec.  
1026.19(f)(1)(i). Comment 19(f)(1)(i)-2.i.A includes an example in 
which a creditor does not exercise due diligence in connection with the 
cost of the lender's title insurance policy to be purchased by the 
consumer. Comment 19(f)(1)(i)-2.i.B includes an example in which a 
creditor has exercised due diligence in connection with amounts 
disclosed under Sec.  1026.38(j) and (k) because it bases disclosures 
on information about the consumer's transaction obtained from the 
settlement agent.
    Like comment 17(c)(2)(i)-1, comment 19(f)(1)(i)-2.ii clarifies 
that, if an actual term is unknown, the creditor may use estimates in 
making disclosures even though the creditor knows that more precise 
information will be available at or before consummation. Similar to 
comment 17(c)(2)(i)-1, comment 19(f)(1)(i)-2 highlights the creditor's 
obligations to make subsequent disclosures. Comment 19(f)(1)(i)-2.ii 
specifically discusses the creditor's obligations to provide corrected 
disclosures at or before consummation containing the actual terms of 
the transaction under Sec.  1026.19(f)(2), subject to the exceptions 
provided for in Sec.  1026.19(f)(2).
    Comment 19(f)(1)(i)-2 does not state that the creditor must label 
disclosures based on the best information reasonably available as 
estimates. Instead, comment 19(f)(1)(i)-2.ii clarifies that the 
labeling rules under Sec.  1026.38 apply to the Closing Disclosures 
with a reference to comment 17(c)(2)(i)-2 to direct creditors to 
guidance on labeling estimates. The disclosure requirements in Sec.  
1026.38 generally do not permit creditors to label disclosures on the 
Closing Disclosure as estimates because creditors are required to use 
the master headings, headings, subheadings, labels, and designations 
required by that section.
    The Bureau is aware that other disclosures provided under 
Regulation Z are labeled as estimates when information is unknown. 
However, the Bureau is concerned that labeling certain items on the 
Closing Disclosure as estimates may result in consumer confusion 
regarding the nature of the Closing Disclosure. In addition, the 
Closing Disclosure uses the term ``estimated'' in specific areas to 
inform the consumer when certain recurring costs may change in the 
future, such as future payments for taxes and property insurance. The 
Bureau believes the intended meaning of the term ``estimated'' for 
those disclosures may be affected by use of that term in other places 
on the Closing Disclosure form. Further, at the Bureau's Quantitative 
Study, consumer participants using the Closing Disclosure performed 
statistically significantly better at understanding their final loan 
terms and costs than consumer participants using the current RESPA 
settlement statement and final TILA disclosure. See Kleimann 
Quantitative Study Report at 68-69.
    The Bureau notes that under Sec.  1026.19(f)(2)(i) and (ii), 
creditors must provide corrected disclosures if information on 
disclosures provided under Sec.  1026.19(f)(1)(i) becomes inaccurate. 
Thus, consumers will receive by consummation corrected disclosures 
stating the actual terms of the transaction. In addition, under final 
Sec.  1026.19(f)(2)(iii), consumers will receive corrected disclosures 
after consummation if a subsequent event changes an amount actually 
paid by the consumer during the 30-day period following consummation. 
This approach is consistent with what the Bureau believes is the 
current practice under Regulation X, which provides that the RESPA 
settlement statement must state the actual charges paid by the borrower 
and seller, and does not provide for labeling charges as estimates, 
even if the RESPA settlement statement is subsequently revised.
    Unlike comment 17(c)(2)(i)-1, comment 19(f)(1)(i)-2.iii explains 
how the best information reasonably available standard applies if a 
settlement agent provides certain disclosures under Sec.  
1026.19(f)(1)(i) instead of a creditor, pursuant to Sec.  
1026.19(f)(1)(v). As discussed in the section-by-section analysis of 
Sec.  1026.19(f)(1)(v), a settlement agent may provide a consumer with 
the Closing Disclosure, provided the settlement agent complies with all 
relevant requirements of Sec.  1026.19(f). Comment 19(f)(1)(i)-2.iii is 
intended to illustrate the applicability of the best information 
reasonably available standard to provisions as applied to settlement 
agents providing the Closing Disclosure three business days before 
consummation.
    Comment 19(f)(1)(i)-2.iii explains that the settlement agent 
normally may rely on the representations of other parties in obtaining 
information, but the settlement agent also must satisfy the ``best 
information reasonably available'' standard. Accordingly, the 
settlement agent is required to exercise due diligence to obtain 
information if it is providing the Closing Disclosure pursuant to Sec.  
1026.19(f)(1)(v). Comment 19(f)(1)(i)-2.iii illustrates a scenario in 
which the settlement agent is considered to have conducted due 
diligence if it obtained from the creditor information for the loan 
terms table required to be disclosed under Sec.  1026.38(b).
    As discussed in the section-by-section analysis of Sec.  
1026.19(f)(1)(v), even if the settlement agent provides the Closing 
Disclosure, the creditor remains responsible under Sec.  
1026.19(f)(1)(v) for ensuring that the Closing Disclosure is provided 
in accordance with Sec.  1026.19(f). Comment 19(f)(1)(v)-3 explains 
that the creditor is expected to maintain communication with the 
settlement agent to ensure that the settlement agent is acting in place 
of the creditor. Comment 19(f)(1)(i)-2.iii references this obligation 
and includes a cross-reference to comment 19(f)(1)(v)-3.
    Denied or withdrawn applications. As discussed in the section-by-
section analysis of Sec.  1026.19(f)(1)(ii)(B) below, a trade 
association representing the timeshare industry requested that the 
final rule include commentary clarifying that, if the consumer's 
application will not or cannot be approved on the terms requested or 
the consumer has withdrawn the application, the Closing Disclosure is 
not required. Although the commenter provided this recommendation in 
the context of timeshare transactions, the Bureau

[[Page 79841]]

believes such guidance would be helpful as applied to all transactions 
subject to Sec.  1026.19(f). Thus, as discussed below, the final rule 
includes comment 19(f)(1)(i)-3 to provide guidance for such situations, 
which reflects similar guidance applicable to the Loan Estimate.
    Under Sec.  1026.19(f)(1)(i), the creditor must provide a Closing 
Disclosure reflecting ``the actual terms of the transaction.'' 
Additionally, under Sec.  1026.19(f)(1)(ii)(A) and (f)(2)(ii), the 
Closing Disclosure must be provided three business days before 
consummation; under Sec.  1026.19(f)(2)(i), the Closing Disclosure must 
be provided at or before consummation; and for loans secured by 
timeshares under Sec.  1026.19(f)(1)(ii)(B), creditors must ensure that 
the consumer receives the Closing Disclosure no later than 
consummation. If the consumer's application for credit is denied or 
withdrawn before the creditor provides the Closing Disclosure under 
Sec.  1026.19(f)(1)(ii)(A), (f)(1)(ii)(B), (f)(2)(i), or (f)(2)(ii), 
creditors would be unable to disclose ``the actual terms of the 
transaction,'' and providing a Closing Disclosure in such cases would 
provide relatively little consumer benefit.
    In other cases, an application may be denied or withdrawn after the 
three-business-day deadline by which the Closing Disclosure must be 
provided under Sec.  1026.19(f)(1)(ii)(A) and, as applicable, Sec.  
1026.19(f)(2)(ii). In these cases, however, the denial or withdrawal of 
an application that may occur subsequent to the three-business-day 
deadline does not excuse a creditor's obligation to provide the Closing 
Disclosure by that deadline. Where the consumer is considering whether 
to withdraw a credit application in the days before consummation, the 
consumer's receipt of the Closing Disclosure three business days before 
consummation would provide critical information about whether it is in 
the consumer's interest to proceed with the transaction.
    Accordingly, comment 19(f)(1)(i)-3 clarifies that the creditor is 
not required to provide the disclosures required under Sec.  
1026.19(f)(1)(i) if, before the time the creditor is required to 
provide the disclosures under Sec.  1026.19(f), the creditor determines 
the consumer's application will not or cannot be approved on the terms 
requested, or the consumer has withdrawn the application, and, as such, 
the transaction will not be consummated. The comment also includes a 
cross-reference to comment 19(e)(1)(iii)-3, which provides examples in 
which an application will not or cannot be approved on the terms 
requested or has been withdrawn by the consumer.
    Integration of Closing Disclosure requirements in Regulation Z. 
Section 1032(f) of the Dodd-Frank Act generally requires that the 
Bureau propose rules and model disclosures that combine the disclosures 
required under TILA and sections 4 and 5 of RESPA into a single, 
integrated disclosure for mortgage loan transactions covered by those 
laws. In addition, Dodd-Frank Act sections 1098 and 1100A amended 
section 105(b) of TILA and section 4(a) of RESPA to require the 
integration of the TILA disclosures and the disclosures required by 
sections 4 and 5 of RESPA. Although Congress imposed this integrated 
disclosure requirement, it did not harmonize the underlying statutes, 
as discussed in greater detail in the Legal Authority discussion in 
part IV above. Thus, to meet the Dodd-Frank Act's express requirement 
to integrate the disclosures required by TILA and RESPA, the Bureau 
must reconcile the differences between these two statutes.
    The Bureau understands the concerns raised by commenters with 
respect to placing the requirements regarding disclosure of settlement 
charge information, which is traditionally considered to be only RESPA-
required information, in Regulation Z. However, the Bureau believes it 
is appropriate to integrate the requirements of RESPA and TILA into a 
single Closing Disclosure set forth in Regulation Z. Section 1419 of 
the Dodd-Frank Act amended TILA by adding section 128(a)(17), which 
generally requires creditors to disclose the aggregate amount of 
settlement charges for all settlement services provided in connection 
with the loan and the aggregate amount of other fees or required 
payments in connection with the loan. The items included in this 
amendment are nearly all of the items that are included on the RESPA 
settlement statement. Accordingly, creditors would have to include in 
the TILA disclosures information that was traditionally known only to 
settlement agents in advance of consummation. Although TILA section 
128(a)(17) requires that creditors disclose aggregate information, to 
meaningfully implement this requirement, the Bureau believes it is 
reasonable to require that creditors base such disclosure on the 
specific elements comprising the aggregate figure. Accordingly, and in 
light of the integration mandate, the Bureau believes it is appropriate 
to integrate the specific requirements of RESPA and Regulation X into 
Regulation Z.
    In addition, the Bureau believes there are substantial practical 
benefits to locating the disclosure requirements in Regulation Z, 
including the benefits of facilitating industry compliance and 
improving consumer comprehension. The Closing Disclosure was subjected 
to extensive consumer testing as a single, integrated document. Were 
the Closing Disclosure divided as separate documents based on disparate 
requirements located in Regulation X and Regulation Z, there is risk 
that consumers would receive different parts of the Closing Disclosure 
at different times, which the Bureau believes would undermine consumer 
comprehension. Even if the rule were to require that the information be 
provided to consumers by the same deadline, there is a risk that 
consumers would receive separate, disjointed disclosures at separate 
times if, for example, parties providing the disclosures used different 
delivery services. Accordingly, the Bureau believes it is necessary to 
ensure that consumers receive the Closing Disclosure as a single, 
integrated document.
    The Bureau believes ensuring consumer comprehension requires that 
the information in the Closing Disclosure be disclosed and delivered in 
a consistent manner. The Closing Disclosure was designed to facilitate 
the consumer's comparison of terms disclosed in the Loan Estimate. As a 
result, a number of the disclosure requirements applicable to the 
Closing Disclosure set forth in Sec.  1026.38 cross-reference the 
disclosure requirements applicable to the Loan Estimate set forth in 
Sec.  1026.37, rather than setting forth their own requirements.\214\ 
This approach helps ensure consumers can easily compare the Closing 
Disclosure against the Loan Estimate. To this end, the Bureau believes 
the Closing Disclosure should be subject to rules relying on a single 
set of terminology, timing requirements, recordkeeping requirements, 
and a consistent set of other general disclosure requirements and 
commentary.
---------------------------------------------------------------------------

    \214\ See, e.g., Sec.  1026.38(a)(5) (loan information 
disclosures requiring disclosure of the information required to be 
disclosed under Sec.  1026.37(a)(8) through (11)); Sec.  1026.38(c) 
(projected payment disclosures requiring disclosure of the 
information required to be disclosed under Sec.  1026.37(c)); Sec.  
1026.38(f) (closing loan cost information described in Sec.  
1026.37(f)(1) and (3), and the total of loan costs based, inter 
alia, on such disclosures).
---------------------------------------------------------------------------

    The Bureau believes the final rule will facilitate compliance 
because it will obviate potential conflicts between Regulation X and 
Regulation Z that might otherwise arise. For example, as described in 
more detail above,

[[Page 79842]]

Sec.  1026.19(f)(1)(i) clarifies the applicability of the best 
information reasonably available standard set forth in the general 
disclosure requirements applicable to closed-end consumer credit 
transactions under Sec.  1026.17(c)(2)(i), and Sec.  1026.17 contains a 
number of other general disclosure requirements that address compliance 
questions raised by commenters, such as questions about delivery 
requirements in the case of multiple consumers. See section-by-section 
analysis of Sec.  1026.19(f)(1)(iii) below; Sec.  1026.17(d) (providing 
disclosures in the case of multiple consumers). Regulation Z also 
contains extensive commentary that interprets many of the provisions of 
Regulation Z, including the general disclosure requirements in Sec.  
1026.17. The Bureau believes this extensive commentary will assist 
industry in complying with the final rule. By contrast, locating 
certain Closing Disclosure requirements in Regulation X, with other 
information in Regulation Z, likely would present compliance 
difficulties for creditors and settlement agents. Because the Loan 
Estimate requirements will be located in Regulation Z, and because 
elements of the Closing Disclosure cross-reference elements of the Loan 
Estimate, creditors or settlement agents would be required to regularly 
consult Regulation Z. The Bureau is concerned that compliance with two 
sets of regulations for one disclosure would increase the risk of 
inconsistencies.
    One trade association representing settlement agents and the title 
insurance industry implied that the Bureau could resolve any such 
discrepancies by including a provision in Regulation X stating that, 
for loans subject to Sec.  1026.19(e) and (f), the definitions and 
rules of construction of Regulation Z would control, to the extent of 
any inconsistency. This commenter also recommended that the Closing 
Disclosure provisions in Regulation X cross-reference applicable Loan 
Estimate requirements located in Regulation Z. However, the Bureau does 
not believe such an approach will facilitate compliance, which is one 
of the purposes of the integrated disclosures. See Dodd-Frank Act 
sections 1098, 1100A. Because many of the individual elements of the 
Closing Disclosure cross-reference the Loan Estimate, and because the 
timing, delivery, and other general disclosure standards applicable to 
the Closing Disclosure rely on definitions and other provisions located 
in Regulation Z, coordination with Regulation Z would be unavoidable. 
The Bureau is concerned that separating the disclosure requirements 
between Regulation Z and Regulation X would foster confusion and 
inefficiencies, while not facilitating compliance with the disclosure 
requirements. See Dodd-Frank Act sections 1098, 1100A. For example, 
while the approach preferred by commenters may reconcile differences in 
terminology, the Bureau does not believe it would reconcile other 
differences, such as the general disclosure requirements in Sec.  
1026.17.\215\
---------------------------------------------------------------------------

    \215\ The commenter recommending this approach, in which the 
settlement agent would provide elements of the Closing Disclosure 
contained in Regulation X, explained that doing so would facilitate 
industry compliance and enhance consumer understanding. The Bureau 
has addressed settlement agent responsibility for the Closing 
Disclosure in the section-by-section analysis of Sec.  
1026.19(f)(1)(v).
---------------------------------------------------------------------------

    The Bureau believes integrating the Closing Disclosure requirements 
in Regulation Z also satisfies the Dodd-Frank Act integration mandate. 
To meet the integration mandate, the Bureau must reconcile several 
important differences between RESPA and TILA. For example, to reconcile 
the different timing requirements under RESPA and TILA with respect to 
when the Closing Disclosure must be provided, the final rule generally 
requires that the Closing Disclosure be provided three business days 
before ``consummation.'' Regulation Z currently defines 
``consummation'' as ``the time that a consumer becomes contractually 
obligated on a credit transaction.'' See Sec.  1026.2(a)(13). 
Regulation X, by contrast, provides that the RESPA settlement statement 
must be delivered by ``settlement,'' which is defined as ``the process 
of executing legally binding documents regarding a lien on property 
that is subject to a federally related mortgage loan.'' See 12 CFR 
1024.2(b). As noted by commenters representing the views of settlement 
agents, discussed in the section-by-section analysis of Sec.  
1026.19(f)(1)(ii)(A), ``consummation'' and ``settlement'' may not 
necessarily occur at the same time. To ensure consumers consistently 
receive a single, integrated Closing Disclosure in a timely manner, the 
Bureau believes it must reconcile these differences. Accordingly, as 
discussed in more detail in the section-by-section analysis of Sec.  
1026.19(f)(1)(ii)(A), the final rule requires that the Closing 
Disclosure be received three business days before ``consummation.'' 
Thus, as described above, the Bureau believes integrating the TILA and 
RESPA requirements applicable to the Closing Disclosure in Sec.  
1026.19(f)(1)(i) will satisfy TILA, RESPA, and the Dodd-Frank Act's 
integration mandate, will facilitate industry compliance, and will 
enhance consumers' understanding of their transactions.
    Comments related to the integration of particular disclosure 
requirements are addressed where applicable below in the section-by-
section analysis of Sec.  1026.38. Comments related to liability issues 
raised by integrating the Closing Disclosure requirements in Regulation 
Z are addressed in the beginning of part V above. The final rule makes 
certain amendments to the proposal in response to comments regarding 
the timing and delivery requirements applicable to the Closing 
Disclosure, as discussed in greater detail throughout the section-by-
section analysis of Sec.  1026.19(f) below.
    Final provisions. For the reasons discussed above, and based on the 
authority cited in the proposal as well as sections 1098 and 1100A of 
the Dodd-Frank Act, the final rule integrates the disclosure 
requirements in TILA section 128 and RESPA section 4 in final Sec.  
1026.19(f), as proposed. The final rule adopts the language in proposed 
Sec.  1026.19(f)(1)(i) as proposed, with a technical revision to the 
heading of Sec.  1026.19(f)(1). The final rule adopts proposed comment 
19(f)(1)(i)-1 substantially as proposed, and adopts new comments 
19(f)(1)(i)-2 and -3 pursuant to the Bureau's authority under sections 
105(a) of TILA, 19(a) of RESPA, and sections 1098, 1100A and 1032(f) of 
the Dodd-Frank Act.
19(f)(1)(ii) Timing
19(f)(1)(ii)(A) In General
    The Bureau explained in the proposal that the integrated disclosure 
mandate requires the Bureau to reconcile two statutory timing regimes 
that are currently not synchronized. The Bureau explained that the 
determination of how to integrate these conflicting statutory 
provisions also must be made in light of section 1405(b) of the Dodd-
Frank Act, which focuses on improving ``consumer awareness and 
understanding of transactions involving residential mortgage loans 
through the use of disclosures.'' The Bureau recognized in the proposal 
that consumers may be more aware of and better understand their 
transactions if consumers receive the disclosures reflecting all of the 
terms and costs associated with their transactions three business days 
before consummation. The Bureau explained that this would afford 
consumers sufficient time to review, analyze, and question the 
information reflected in the disclosure, such that consumers are aware 
of and understand the

[[Page 79843]]

transactions by the time consumers become obligated.
    The Bureau also explained that if consumers receive the disclosures 
three business days before consummation, they would have sufficient 
time to identify and correct errors, discuss and negotiate cost 
increases, and have the necessary funds available. The Bureau expected 
that this also could eliminate the opportunity for bad actors to 
surprise consumers with unexpected costs at the closing table, when 
consumers are committed to going through with the transaction. Further, 
the Bureau explained that providing consumers with more time to review 
the Closing Disclosure may encourage creditors to take greater care to 
ensure the accuracy of the Loan Estimate. The Bureau noted that while 
the proposal's expanded Loan Estimate tolerances would reduce the 
likelihood of such tactics, requiring advance disclosure of the Closing 
Disclosure would make it easier for consumers to identify any changes 
and provide additional incentive for creditors to avoid such changes.
    The Bureau acknowledged that a three-business-day period could 
result in closing delays, which would impose costs on some consumers. 
The Bureau also noted that, in extreme situations, such delays could 
cause a transaction to fall through if a consumer is under a 
contractual obligation to close by a certain date. The Bureau reasoned, 
however, that creditors and settlement agents currently coordinate to 
provide the RESPA settlement statement at closing and that these 
parties would have an incentive to complete closings as scheduled, and 
therefore the Bureau believed that they would adjust their business 
practices to provide the Closing Disclosure in a timely manner, making 
closing delays infrequent. The Bureau also noted that delayed or 
canceled closings could impose costs on covered persons as well, such 
as a loss in revenue for transactions that fall through due to a delay. 
The Bureau also noted that the proposed rule could create legal and 
reputational risks for creditors or settlement agents that are unable 
to close loans as planned.
    Section 105(a) of TILA authorizes the Bureau to modify and add 
requirements under certain circumstances, and the Bureau stated its 
belief that requiring redisclosure in cases where it is not currently 
required under Regulation Z or Regulation X is necessary to effectively 
integrate the disclosures. Accordingly, the Bureau proposed Sec.  
1026.19(f)(1)(ii)(A), which would have provided that, except for 
transactions secured by timeshares, or as provided under proposed Sec.  
1026.19(f)(2), the creditor shall ensure that the consumer receives the 
disclosures no later than three business days before consummation. 
Pursuant to proposed Sec.  1026.2(a)(6), the definition of ``business 
day'' that would have applied to Sec.  1026.19(f)(1)(ii) would have 
been the specific definition that also applies to the right of 
rescission under Sec.  1026.23: a business day would include all 
calendar days except Sundays and the legal public holidays specified in 
5 U.S.C. 6103(a).
    Proposed comment 19(f)(1)(ii)-1 would have provided illustrations 
of this requirement. Proposed comment 19(f)(1)(ii)-2 would have 
explained the requirement that consumers must receive disclosures no 
later than three business days in advance of consummation, and would 
have provided practical examples illustrating appropriate delivery 
methods.
Comments
    The Bureau received extensive public comment and ex parte 
submissions regarding the timing of the Closing Disclosure's delivery 
requirements. Some industry commenters representing views from across 
the real estate market \216\ and some individual consumers expressed 
support for a general three-business-day disclosure requirement. These 
commenters explained that a general three-business-day period would 
provide consumers an opportunity to review documents, ask questions, 
negotiate to reduce costs, gather necessary funds, transfer funds to 
the settlement agent, and reduce opportunity for bait-and-switch 
tactics. Settlement agents and attorney commenters explained that a 
general three-business-day requirement also would provide settlement 
agents more time to prepare settlement documents in an unpressured 
environment.
---------------------------------------------------------------------------

    \216\ Commenters included title and insurance companies, 
settlement agents, law firms, mortgage brokers, attorneys, a large 
bank, community banks, and trade associations representing 
creditors, attorneys, and settlement agents.
---------------------------------------------------------------------------

    A variety of settlement agent commenters and an individual consumer 
explained that consumers are sometimes surprised at the closing table 
when they discover important changes to their loan terms, such as the 
discovery that they are receiving an adjustable rate mortgage loan 
rather than a fixed rate loan, or an adjustable rate mortgage loan with 
different loan terms than what they anticipated. Settlement agent 
commenters explained that a general three-business-day period would 
allow consumers to review the Closing Disclosure with an attorney or 
another advisor. Some of these commenters, however, expressed concern 
about triggering an additional waiting period as a result of 
redisclosing the Closing Disclosure and about how the Bureau's proposal 
would interact with other rules. Comments relating to the circumstances 
under which revisions to the Closing Disclosure would trigger an 
additional waiting period are discussed in more detail in the section-
by-section analysis of Sec.  1026.19(f)(2) below.
    Commenters who represent consumer interests supported the three-
business-day requirement. Two consumer advocacy groups submitting a 
joint comment supported the Bureau's proposal. A housing counseling 
agency noted that a mandatory period would address a common consumer 
complaint that refinancing settlements are frequently rushed. A State 
attorney general stated that a three-business-day period was necessary 
for consumers to consider all of the costs in light of the significant 
obligation assumed by the consumer in a mortgage transaction, 
particularly in the context of purchasing a home. Several associations 
of State banking regulators submitting a joint comment also supported a 
general three-business-day requirement, explaining that the three-
business-day requirement would create consistency where there was a 
discrepancy between RESPA and TILA. This commenter noted that the 
proposed changes to the disclosures were perhaps the most sweeping and 
significant reform to the mortgage origination process in recent 
history, but cautioned that careful and coordinated implementation was 
essential to avoiding potentially significant market disruption.
    However, many commenters from across the mortgage and real estate 
industry and a Federal agency opposed a general three-business-day 
disclosure requirement, arguing that providing ``final'' settlement 
costs three business days before consummation would be impracticable, 
unnecessary, and result in frequent closing delays that would impose 
costs on consumers, sellers, industry, and the market. Commenters 
explained that certain settlement costs were unknown three to six days 
in advance and usually are not known until a day or two before 
closing.\217\ A

[[Page 79844]]

community bank representative stated that, while it would be feasible 
to prepare a borrower's closing costs three days in advance, it may be 
more difficult to account for the seller's transaction accurately by 
that time.
---------------------------------------------------------------------------

    \217\ Commenters observed that they would have to prepare the 
Closing Disclosure at least six business days before consummation 
because proposed Sec.  1026.19(f)(1)(iii) would add three business 
days to the timeframe to obtain the benefit of a presumption that 
the consumer receives it three business days before consummation. As 
discussed in the section-by-section analysis of Sec.  
1026.19(f)(1)(iii), the proposed rule would have provided that if 
the Closing Disclosure is not provided to the consumer in person, 
the consumer is presumed to have received it three business days 
after it is mailed or delivered to the address specified by the 
consumer.
---------------------------------------------------------------------------

    Difficulties with obtaining final costs three business days before 
consummation. Many commenters concerned about the general three-
business-day requirement cited the likelihood of coordination problems 
between creditors, settlement service providers, and other third-
parties. Both creditors and settlement agents expressed concern that 
they could not guarantee that other parties, such as government 
entities or third-party settlement service providers, would be able to 
provide final closing figures in a timely manner. As a result, 
commenters explained that it is common practice for consumers to review 
final settlement costs the day before settlement or several hours 
before settlement.
    Settlement agent commenters explained that the RESPA settlement 
statement includes certain loan information and requires coordination 
with lenders, but that they do not receive the lender's settlement 
statement figures until the day of or day before closing. One escrow 
agent commenter explained that it is not uncommon for lenders and 
settlement agents to revise the RESPA settlement statement frequently 
because of differences in software used by those parties and 
miscommunications between them. Settlement agents also explained that 
the work of clearing known title defects can sometimes occur during the 
days leading up to consummation because certain defects may not come to 
light until after a title report is analyzed.
    Creditors expressed similar coordination concerns and explained 
that many settlement service fees are outside of the control of the 
creditor or the creditor's affiliate. Community banks explained that 
they cannot ensure they receive accurate information in a timely manner 
from third parties such as realtors, attorneys, title companies, 
insurance agents, and other third-party lenders responsible for 
providing payoffs or subordination agreements. Commenters explained 
that third-party payoff information may become stale as a result of 
closing delays. A settlement agent commenter operating in a rural area 
explained that in an active real estate market, it can be difficult for 
creditors to obtain an appraisal more than three days before closing, 
and without underwriting being complete, creditors are unable to 
produce the exact numbers needed for the settlement statement. One non-
depository lender explained that it is not uncommon for loan amounts to 
be adjusted in refinancings where appraisals or payoff figures from 
third parties arrive soon before consummation. Commenters also 
explained that final settlement costs could not be known in advance if 
consumers shop or otherwise request changes to the transaction, if 
settlement agent due diligence uncovers new obligations or 
encumbrances, or if delays cause per diem or prorated amounts to 
accumulate.
    Costs associated with a general three-business-day period. A 
variety of settlement agents, title insurance companies, individual 
attorneys and law firms, a variety of creditors, industry trade 
associations, and a member of Congress, identified costs that consumers 
would face as a result of delayed closings caused by a mandatory three-
business-day waiting period, including breach or expiration of real 
estate agreements; the expiration of interest rate locks; inconvenience 
and financial costs associated with rearranging closings (such as, if a 
consumer is required to arrange for temporary housing needs, or if a 
seller's subsequent purchase also is delayed); additional pre-closing 
diligence costs and attorney's fees; and, in the case of refinancings, 
especially those subject to the right of rescission's post-consummation 
funding delay, prolonged interest payments on outstanding debts.
    Non-depository lenders, credit unions, community banks, mortgage 
brokers, settlement agents, trade associations representing those 
industries, a mortgage compliance company and an individual consumer 
stated that a general three-business-day period would inconvenience and 
impose logistical costs on consumers. Commenters explained consumers 
would have difficulties scheduling moving vans, time away from work, 
temporary housing, and could face delays up to 12 days or more before 
they could close. A mortgage company commenter noted that consumers in 
the military who are purchasing a home frequently stay in a hotel 
before they move in, and that, in those instances, closing delays could 
result in longer hotel stays. Law firms, settlement agents, and trade 
associations representing attorneys and credit unions anticipated that 
a general three-business-day period would lead consumers to ask more 
questions and engage in additional diligence before consummation, which 
would require more time on the part of settlement agents and attorneys 
per closing and, thus, increase costs to consumers.
    Commenters also identified financial and opportunity costs that 
consumers could incur as a result of closing delays. Trade associations 
representing banks and settlement agents, a community bank and a 
community bank holding company, non-depository lenders, and a member of 
Congress indicated that a consumer's interest rate lock could expire as 
a result of a delay. As a result, commenters explained, consumers would 
have to pay a higher interest rate or pay additional fees to extend 
their rate lock or obtain a new one. Commenters expected that creditors 
would price rate locks higher and may limit their availability to 
account for closing delays across the market. A non-depository lender 
and a large bank estimated that the proposal's general three-business-
day period, a three-business-day presumption of delivery, and two 
business days to prepare the disclosure would mean preparing and 
delivering the Closing Disclosure would take eight business days, or 
ten calendar days. Estimating that the cost of a rate lock at 
approximately two basis points per day, the non-depository lender 
commenter estimated consumers would pay approximately 20 basis points, 
or $400 on a $200,000 loan.
    In addition to interest rate lock expiration, a large number of 
commenters expressed concern that a consumer's purchase agreement with 
a seller could expire, potentially putting the consumer in breach of 
the agreement. The consumer could lose the opportunity to purchase the 
home or incur per diem penalties, which in turn could jeopardize other 
of the consumer's arrangements. Numerous commenters also raised 
concerns about the ``domino effect'' of closing delays on sellers who 
may schedule coinciding settlements in which they are a buyer. 
Commenters were concerned this could affect the efficient operation of 
the residential real estate market. Commenters also explained that 
sellers in short-sales may be harmed, where a creditor may require that 
a sale occur within a specified period of time. Commenters also 
explained that, in the case of refinancings, where no seller is 
present, delays could force consumers to pay additional interest on an 
outstanding loan or delay their ability to meet an upcoming expense. 
One commenter suggested that the three-business-day timing requirement 
could

[[Page 79845]]

be an unlawful interference with the right of buyers and sellers to 
contract.
    Banks, non-depository lenders, and a trade association representing 
banks were concerned that a three-business-day receipt requirement 
would increase loan processing costs, including compliance costs or 
costs to extend expired rate locks or underwriting verifications, and 
costs necessary to secure warehouse financing capacity. For example, a 
community bank explained that it would have to add five days to its 
secondary market rate locks to meet the proposal's timelines to prevent 
the interest rate lock from expiring, and that such costs would be 
passed on to consumers. In addition, trade associations representing 
creditors and community banks expressed concern that delayed closings 
would require them to pay for additional warehouse financing capacity. 
Creditor and settlement agent commenters also were concerned that they 
would face liability and reputational risk arising from incorrect 
figures obtained from or delays caused by third parties, particularly 
where delays may result in the breach of a consumer's real estate 
agreement. One creditor requested that the final rule protect creditors 
from such liability and ensure that settlement agents bear 
responsibility for their mistakes.
    Commenters also raised concerns that closing delays would be 
problematic for sellers who are paying off existing Federal Housing 
Administration (FHA) loans or consumers who are refinancing existing 
FHA loans. Commenters explained that FHA has traditionally charged 
borrowers a whole month's interest if they pay off their loans after 
the first day of any month; thus, many borrowers schedule closings at 
the end of the month to avoid this extra interest payment. Commenters 
explained that delayed closings could push scheduled end-of-month 
closings into the next month, causing consumers to pay additional 
interest.
    In addition to general compliance costs, creditors noted they would 
face additional costs related to preparing revised Closing Disclosures. 
Settlement agents, law firms, credit unions, title insurance companies, 
and trade associations representing attorneys explained that delayed 
closings would result in fewer closings and increased burden on the 
part of settlement agents in terms of additional time and costs related 
to preparing the Closing Disclosure and answering consumers' questions. 
Some commenters thought that the pressure to avoid closing delays would 
lead to the circumvention of the closing process.
    Uncertain benefits of a general three-business-day period. Many 
commenters maintained that a general three-business-day waiting period 
was unnecessary in light of the current tolerance rules because they 
limit increases in certain settlement costs, TILA rescission rights 
that impose a mandatory post-consummation three-business-day waiting 
period, other rulemakings under title XIV of the Dodd-Frank Act, and 
because a consumer's primary interest is in closing the transaction in 
a timely manner.
    A wide variety of commenters also maintained that the APR accuracy 
requirements in Regulation Z and the good faith estimate tolerance 
requirements currently in Regulation X render additional waiting 
periods unnecessary. A trade association representing banks indicated 
that a consumer's cash to close amount would most likely increase due 
to consumer choice, rather than because of a loan origination charge, 
and that very few closed loans have increases in closing costs that 
result in tolerance violations requiring reimbursement, and therefore a 
three-business-day period was unjustified. Other commenters, including 
trade associations representing real estate agents, banks, and 
financial companies stated that other Bureau rulemakings under title 
XIV of the Dodd-Frank Act, such as the ability-to-repay, loan 
originator compensation, and HOEPA rulemakings made an additional 
three-business-day waiting period unnecessary.
    A mortgage broker, a title insurance company and trade associations 
representing attorneys, banks, and financial companies maintained that 
a pre-consummation period would not enhance consumer understanding 
because consumers already have a long period of time to negotiate and 
review closing costs. A compliance company and a settlement agent 
commenter suggested that advance disclosure of real estate agent fees 
and other costs was unnecessary because consumers receive information 
about many fees during the course of the transaction. Commenters also 
emphasized that consumers are primarily interested in closing the 
transaction as quickly as possible and would not benefit from a waiting 
period.
    Law firm commenters and a professional association representing 
attorneys did not think a waiting period would be useful without 
someone to help the consumer understand the Closing Disclosure. Law 
firm commenters explained that they expected many consumers would wait 
until consummation to review the document. The association representing 
attorneys believed it would be necessary to schedule separate meetings 
with consumers to help them understand the Closing Disclosure. One law 
firm commenter recommended that the final rule should require that 
consumers have an attorney present at settlement to explain the Closing 
Disclosure.
    Transactions subject to the right of rescission. A variety of 
industry commenters critical of the Bureau's proposed three-business-
day waiting period questioned the necessity of the pre-consummation 
waiting period in light of the right of rescission available to 
consumers for certain transactions under Sec.  1026.23. These 
commenters explained that rescission rights render a pre-consummation 
waiting period unnecessary and that a pre-consummation waiting period 
would further delay the funding of a consumer's loan. Some commenters 
said that consumers could experience a nine-day waiting period at the 
earliest to fund such a loan.\218\ A community bank commenter explained 
that creditors sometimes permit a post-consummation waiting period for 
transactions not subject to TILA rescission rights as a courtesy to 
consumers, and that a pre-consummation waiting period would further 
delay these transactions as well.
---------------------------------------------------------------------------

    \218\ Commenters explained the nine-day period would be due to a 
three-day period by operation of proposed Sec.  1026.19(f)(1)(iii), 
a three-day waiting period before consummation, and a three-day 
post-consummation waiting period by operation of the rescission 
rule.
---------------------------------------------------------------------------

    Some commenters requested that the Bureau exempt refinancings from 
a three-business-day waiting period or permit the three-business-day 
waiting period to run concurrently with the rescission period because 
the rescission rule already protects consumers. A large bank 
recommended that, for transactions subject to the right of rescission, 
the three-business-day right to cancel should begin with the consumer's 
receipt of the Closing Disclosure to shorten the waiting period by four 
days while still preserving the consumer's opportunity to review the 
transaction and rescind.
    Alternatives recommended by commenters. Commenters recommended a 
number of alternatives to the proposed three-business-day period. 
Commenters including non-depository lenders, community banks, credit 
unions, and trade associations representing credit union suggested that 
a two-day or 48-hour period would better balance the need for advance 
disclosure with the consumer's interest in closing in a timely manner. 
Similarly, a one-day or 24-hour period was

[[Page 79846]]

recommended by many commenters, including a State housing development 
authority, mortgage brokers, individual consumers, non-depository 
lenders, community banks, law firms, as well as trade associations 
representing mortgage brokers, banks and community banks, credit 
unions, and the manufactured housing industry. Commenters believed a 
one-day period would provide consumers enough time to review the 
disclosure and would be less disruptive than a three-business-day 
requirement, although some thought that even a one-day delay could be 
problematic for consumers.
    Other commenters, including a large bank, credit unions and trade 
associations representing credit unions, title insurance companies and 
a law firm, recommended that the final rule include no pre-consummation 
period, or that a pre-consummation period apply only if there is a 
tolerance violation. The large bank commenter explained that the Bureau 
could accomplish this by exempting all closed-end consumer mortgage 
loans secured by real property from the requirement under TILA section 
128(b)(2) that an inaccurate APR triggers the obligation that a 
consumer receive a corrected final TILA disclosure no later than three 
business days before consummation. The commenter stated that this would 
harmonize the timing between TILA and RESPA and would facilitate 
compliance with the Dodd-Frank Act's integrated disclosure mandate.
    One individual consumer was concerned that a three-business-day 
period could negatively affect a purchase transaction, but the 
commenter also questioned whether a three-business-day period would 
provide consumers sufficient time to question charges. One settlement 
agent commenter recommended that the final rule adopt a post-
consummation period in which adjustments to the transaction could 
occur. A mortgage broker commenter recommended, as alternatives to a 
three-business-day advance disclosure, requiring the consumer's 
signature of the Closing Disclosure at closing or requiring that the 
Closing Disclosure be read aloud to consumers at closing to ensure the 
consumer understood the transaction. A settlement agent recommended 
that consumers should be able to determine how much time they would 
like before closing, or that the final rule should apply different 
timing requirements to different classes of consumers, depending on how 
experienced they are with mortgage transactions, such as by requiring 
that first-time home buyers receive the Closing Disclosure six days in 
advance, while all other consumers would receive the disclosure one-to-
three days in advance, at their option.
    In addition to recommending alternative timing regimes, commenters 
recommended that the final rule provide more flexible exemptions from 
the general three-business-day period. A trade association representing 
real estate agents, a financial holding company, a compliance company, 
and various settlement agents recommended that the final rule 
distinguish between loan and settlement costs for purposes of imposing 
a pre-consummation period. Commenters recommended either separating 
TILA and RESPA disclosures and requiring a three-business-day period 
for TILA disclosures and no waiting period for RESPA disclosures, or 
imposing a general three-business-day period but permitting settlement 
figures to be finalized at closing. One trade association representing 
settlement agents requested that the Bureau consider an exemption from 
the three-business-day period if the final cash to close amount does 
not increase beyond a certain tolerance. The commenter explained that 
this would allow transactions that have been estimated more accurately 
at the Loan Estimate stage to close without advance delivery of the 
Closing Disclosure.
    Consummation v. settlement. The proposed rule would have required 
that the Closing Disclosure be delivered three business days before 
``consummation,'' consistent with other provisions under TILA and 
Regulation Z. RESPA and Regulation X, by contrast, require the 
settlement statement to be delivered at ``settlement.'' Some settlement 
agents and various trade associations representing settlement agents, 
the title insurance industry, and banks requested clarification on how 
``consummation'' would be defined and how the proposal would apply in 
jurisdictions in which settlement and consummation occur at different 
times.
    Trade associations representing settlement agents and the title 
insurance industry explained that in some States, the signing of 
legally binding documents may occur at one time, while consummation may 
not occur until one or more days later, such as when the documents are 
recorded. Commenters requested clarification on whether, in this case, 
the Closing Disclosure would be provided when the documents are 
recorded. Other commenters were concerned that settlement may not occur 
until after consummation, and that the proposed rule did not adequately 
account for post-consummation changes occurring during the course of 
settlement.
    Business day. As discussed in the section-by-section analysis of 
Sec.  1026.2(a)(6), the Bureau received comments on the proposed 
definitions of ``business day'' applicable to the proposed rule. As 
noted in the section-by-section analysis of Sec.  1026.2(a)(6), a 
variety of commenters supported establishing a consistent definition of 
business day to promote consistency across the provisions of 
Regulations X and Z. Commenters observed that the specific definition 
would allow one less day to comply with the timing requirements. One 
commenter was concerned that an inconsistent business day definition 
could create confusion if different products are treated differently 
(e.g., refinancings). A trade association representing banks and 
financial companies recommended that business days should include 
Saturdays because doing so would allow consumers to close sooner.
    Authority issues. Several industry trade associations and a large 
bank stated that the Bureau lacks authority under TILA and the Dodd-
Frank Act to implement this aspect of the proposal, and that TILA and 
RESPA both would permit the Closing Disclosure to be provided at or 
before consummation. A compliance company commenter maintained that the 
Dodd-Frank Act does not specifically mandate that the Bureau improve 
disclosure of realtor fees or other transaction costs outside of the 
cost of financing. These commenters pointed out that RESPA does not 
require that settlement costs be disclosed in advance and that TILA 
requires a three-business-day waiting period only if a loan's APR 
changes outside of the tolerance. A large bank, a trade association 
representing banks and financial companies, and a trade association 
representing banks stated that the three-business-day waiting period 
under TILA only applies to the disclosure of the APR and not to other 
loan or settlement-related costs. A trade association representing 
banks and financial companies and a trade association representing 
banks pointed out that, soon after RESPA was enacted, Congress 
substantially amended its original early settlement cost disclosure 
requirement after substantial public protest, which the commenter 
believed indicates Congress prohibited such waiting periods 
thereafter.\219\
---------------------------------------------------------------------------

    \219\ As originally enacted on December 22, 1974, RESPA 
contained a requirement that lenders disclose in writing, not later 
than 12 days before settlement, the amount of each charge for 
settlement services. See Public Law 93-533, section 6 (12 U.S.C. 
2605, repealed 1976). Congress subsequently amended RESPA to, among 
other things, repeal the requirement to provide advance disclosure 
of actual settlement costs and replace it with a requirement that 
lenders provide good faith estimates of likely settlement charges. 
Congress also added the requirement for settlement agents to make 
settlement costs available for inspection by the borrower upon 
request. See 12 U.S.C. 2603(b) (1976).

---------------------------------------------------------------------------

[[Page 79847]]

Final Rule
    After considering public comment and the ex parte submissions, the 
Bureau continues to believe there is significant consumer benefit to 
requiring that the Closing Disclosure be provided three business days 
before consummation. As described below, the final rule requires 
creditors to ensure that consumers receive the Closing Disclosure no 
later than three business days before consummation.
    As noted above, the timing requirements of TILA and RESPA are not 
synchronized. TILA requires, for certain mortgage transactions, that 
creditors furnish a corrected disclosure to the consumer so that it is 
received not later than three business days before the date of 
consummation of the transaction if the prior disclosed APR has become 
inaccurate. See 15 U.S.C. 1638(b)(2)(A), (D). In contrast, RESPA 
requires that the person conducting the settlement (e.g., the 
settlement agent) complete a settlement statement and make it available 
for inspection by the borrower at or before settlement. See 12 U.S.C. 
2603(b). RESPA also provides that, upon the request of the borrower, 
the person who conducts the settlement must permit the borrower to 
inspect those items which are known to such person on the settlement 
statement during the business day immediately preceding the day of 
settlement. Id.
    The Dodd-Frank Act amended TILA and RESPA to mandate that the 
Bureau establish a single disclosure scheme for use by lenders or 
creditors in complying comprehensively with the ``disclosure 
requirements'' of those statutes.\220\ However, Congress did not define 
``disclosure requirements'' and did not instruct the Bureau on how to 
integrate the different timing requirements under TILA and RESPA with 
respect to final disclosures. The Bureau believes that harmonizing the 
timing requirements is a component step towards achieving the goals of 
integration: to facilitate compliance and to ensure that consumers 
receive disclosures that will aid in their understanding of their 
mortgage loan transactions. Accordingly, the Bureau is adopting final 
Sec.  1026.19(f)(1)(iii)(A) to adjust both TILA's and RESPA's timing 
requirements, using its authorities under sections 105(a) of TILA, 
19(a) of RESPA, 1032(a) of the Dodd-Frank Act, and, for residential 
mortgage transactions, sections 129B(e) of TILA and 1405(b) of the 
Dodd-Frank Act.
---------------------------------------------------------------------------

    \220\ Section 1098(2) of the Dodd-Frank Act amended RESPA 
section 4(a) to require that the Bureau ``publish a single, 
integrated disclosure for mortgage loan transactions (including real 
estate settlement cost statements) which includes the disclosure 
requirements of this section and section 5, in conjunction with the 
disclosure requirements of [TILA] that, taken together, may apply to 
a transaction that is subject to both or either provisions of law.'' 
12 U.S.C. 2603(a). Similarly, section 1100A(5) of the Dodd-Frank Act 
amended TILA section 105(b) to require that the Bureau ``publish a 
single, integrated disclosure for mortgage loan transactions 
(including real estate settlement cost statements) which includes 
the disclosure requirements of this title in conjunction with the 
disclosure requirements of [RESPA] that, taken together, may apply 
to a transaction that is subject to both or either provisions of 
law.'' 15 U.S.C. 1604(b).
---------------------------------------------------------------------------

    Integrating the disclosures without reconciling the timing 
requirements would result in a series of disclosures provided by both 
the creditor and the settlement agent. Creditors would provide 
integrated disclosures three business days before consummation when 
necessary under TILA, as amended by MDIA, and then again at 
consummation. See TILA section 128(b)(2)(B)(ii) and (b)(2)(D); 15 
U.S.C. 1638(b)(2)(B)(ii) and (b)(2)(D). Settlement agents would be 
required to permit the borrower to inspect the integrated disclosures 
one business day before settlement based on the information known by 
the settlement agent, and then would be required to provide them at or 
before ``settlement,'' which may occur before, concurrent with, or 
after ``consummation.''
    The Bureau believes this uncoordinated approach to the timing of 
the disclosures could result in consumer confusion and unnecessary 
burden for industry. Therefore, the Bureau is using its authorities 
under sections 105(a) of TILA, 19(a) of RESPA, 1032(a) of the Dodd-
Frank Act, and, for residential mortgage transactions, sections 129B(e) 
of TILA and 1405(b) of the Dodd-Frank Act to adjust both TILA and RESPA 
to require creditors to deliver Closing Disclosures at least three 
business days before consummation in all cases, and not only when the 
APR previously disclosed exceeds tolerance. Providing all consumers 
with three business days to review the Closing Disclosure will greatly 
enhance consumer awareness and understanding of the costs associated 
with the entire mortgage transaction.\221\
---------------------------------------------------------------------------

    \221\ See also the discussion in this section-by-section 
analysis below for reasons why the final rule uses the TILA term 
``consummation'' rather than the RESPA term ``settlement'' as the 
event around which disclosures must be provided.
---------------------------------------------------------------------------

    Disclosure to consumers of such component settlement charges three 
business days prior to consummation would represent an increased 
benefit for consumers from the current disclosure requirements under 
RESPA. Currently, RESPA requires that settlement agents disclose 
settlement costs and certain loan terms on the RESPA settlement 
statement at or before settlement, and inspection of the statement is 
permitted during the business day before settlement at the consumer's 
request. By affirmatively requiring that all consumers receive a 
Closing Disclosure listing loan terms and settlement charges three 
business days before consummation, the Bureau believes the potential 
for consumers to be surprised at closing will be reduced.
    As the Bureau explained in the proposal, one of the purposes of the 
integrated disclosures is to aid consumer understanding of their 
transaction through the use of disclosures. To that end, the Bureau has 
developed the Loan Estimate and the Closing Disclosure to facilitate a 
comparison between the two, so that consumers can easily compare their 
estimated and actual charges. The Bureau's Quantitative Study, as 
described in part III above, determined that the integrated disclosures 
better enable consumers to compare their estimated and actual terms and 
costs than the current disclosures. See Kleimann Quantitative Study 
Report at 46-47. The Bureau believes this consumer benefit will be 
achieved best if consumers receive the Closing Disclosure three 
business days before consummation to compare the terms with the Loan 
Estimate, ask questions, and consider all of their options before 
proceeding with the transaction. To the extent changes occur between 
the time the Closing Disclosure is first provided three business days 
before consummation and consummation, consumers only will need to 
compare changes between two Closing Disclosures.
    The benefits of a three-business-day period are not exclusive to 
consumers. The Bureau believes a general three-business-day requirement 
also will benefit industry because settlement agents, like consumers, 
will have time to review the Closing Disclosure in an unpressured 
environment and incorporate other changes to the transaction that may 
occur before consummation. Both creditor and settlement agent 
commenters explained that they have had problems coordinating to ensure 
the timely receipt of information necessary to prepare the RESPA 
settlement statement. Commenters, particularly settlement agents, 
explained that this

[[Page 79848]]

frequently results in a pressured, last-minute preparation of the RESPA 
settlement statement, increasing the risk of errors. As noted above, 
some individual settlement agent commenters supported a general three-
business-day requirement because it would reduce the pressured 
atmosphere of last-minute closings. The Bureau believes a general 
three-business-day requirement will help correct for this problem by 
providing a strong incentive for parties to coordinate earlier. Thus, 
the Bureau believes a general three-business-day requirement will 
improve the operation of closings for all parties involved.
    The Bureau recognizes that providing settlement cost and other 
information on the Closing Disclosure three business days before 
consummation will require that industry adjust current practice with 
respect to the disclosure of settlement charges. However, the Bureau 
notes that industry would have to adjust current practice to comply 
with the Dodd-Frank Act's impact on TILA. TILA, as amended by MDIA, and 
Regulation Z currently require redisclosure of all changed terms three 
business days before consummation when the APR is inaccurate. Under 
TILA section 128(b)(2)(D), the creditor must provide a corrected 
disclosure statement if the previously disclosed APR becomes 
inaccurate. See 15 U.S.C. 1638(b)(2)(A), (D).\222\ As discussed above, 
section 1419 of the Dodd-Frank Act also amended TILA section 128(a) by 
adding paragraph (17), which requires creditors to disclose the 
aggregate amount of settlement charges for all settlement services 
provided in connection with the loan and the aggregate amount of other 
fees or required payments in connection with the loan. The items 
included in this amendment are nearly all of the items that are 
included on the RESPA settlement statement; and to disclose the 
aggregate figure, the Bureau believes creditors must know the itemized 
settlement charges. Accordingly, even if the final rule implemented the 
requirements of TILA, as amended by MDIA and the Dodd-Frank Act, in a 
manner similar to the current rule, the Bureau believes industry would 
have to implement systems necessary to disclose settlement cost 
information before consummation on the final TILA disclosures. The 
Bureau further believes that, in the absence of this final rule, it is 
possible that when the loan's previously disclosed APR becomes 
inaccurate, creditors would elect to provide final TILA disclosures 
with all changed terms, including settlement cost information required 
by TILA section 128(a)(17), to all consumers as a matter of practice to 
manage their TILA liability risk.\223\
---------------------------------------------------------------------------

    \222\ MDIA amended TILA section 128(b)(2)(D) to require that 
creditors provide a corrected disclosure so that it is received by 
the consumer no later than three business days before consummation, 
if the APR changes outside of the TILA tolerances. See 15 U.S.C. 
1638(b)(2)(D). In its final rule implementing MDIA, the Board 
explained that ``[t]he requirement in TILA Section 128(b)(2)(D) for 
a creditor to provide a corrected disclosure is essentially a 
requirement for the creditor to provide an additional set of the 
early disclosures required by TILA Section 128(b)(2)(A).'' See 74 FR 
23289, 23296 (May 19, 2009). The Bureau agrees with this 
interpretation. Current Sec.  1026.19(a)(2)(ii) of Regulation Z 
implements the MDIA amendments, requiring creditors to provide final 
TILA disclosures with all changed terms, pursuant to the statutory 
timing requirements. As a general rule, a disclosed APR is 
considered accurate if it is within a percentage of the actual APR. 
This percentage is commonly referred to as the ``APR tolerance'' or 
the ``TILA tolerance.'' In general, the tolerance specified for 
closed-end ``regular transactions'' (those that do not involve 
multiple advances, irregular payment periods, or irregular payment 
amounts) is one eighth of one percent; the tolerance specified for 
``irregular'' transactions (those that involve multiple advances, 
irregular payment periods, or irregular payment amounts, such as an 
adjustable rate mortgage with a discounted initial interest rate) is 
one quarter of one percent. See 12 CFR 1026.22(a).
    \223\ As noted in the proposal, the Bureau received extensive 
feedback indicating that APR estimates included in the early TILA 
disclosures are so rarely accurate by the time of consummation that 
most creditors provide corrected disclosures at least three business 
days before consummation as a standard business practice, instead of 
analyzing the accuracy of the disclosed APR to ensure compliance 
with MDIA.
---------------------------------------------------------------------------

    Commenters opposed to the proposal were concerned that a general 
three-business-day timing requirement would lead to closing delays. As 
discussed below, the Bureau does not believe such a requirement alone 
would be the primary cause of any such delays. The Bureau believes 
creditors and settlement agents will be able to coordinate in advance 
based on when consummation is expected to occur to ensure that 
consumers receive a timely Closing Disclosure that includes the actual 
terms or is based on the best information reasonably available at the 
time it is provided. See the section-by-section analysis of Sec.  
1026.19(f)(1)(i). With a three-business-day requirement, the timing of 
particular actions by creditors and settlement agents may shift 
forward, further reducing the probability of closing delays. The Bureau 
further believes industry will have additional incentive to coordinate 
preparation of the Closing Disclosure in light of the interest in 
avoiding closing delays shared by consumers, sellers, and other 
parties.
    Thus, the Bureau believes creditors or settlement agents can 
provide the Closing Disclosure so that it is received by the consumer 
no later than three business days before consummation without delaying 
consummation while they await more precise information about the actual 
terms of the transaction. In addition, the Bureau believes the 
revisions to the proposed redisclosure requirements will significantly 
reduce the risk of closing delays, as discussed in the section-by-
section analysis of Sec.  1026.19(f)(2)(i) and (f)(2)(ii).
    Some commenters were concerned that a three-business-day rule would 
lead to additional closing conferences or time spent with consumers, 
and some commenters suggested that the Bureau require that attorneys or 
other settlement service providers be present to assist consumers with 
understanding their transaction. The final rule does not require the 
scheduling of closing conferences or the presence of particular 
personnel at a closing. The Bureau is concerned that such a requirement 
would be burdensome. The Bureau further believes that the design of the 
Loan Estimate and Closing Disclosure will help consumers understand 
their transaction, even if additional personnel are not available, as 
discussed in the Kleimann Quantitative Study Report.\224\
---------------------------------------------------------------------------

    \224\ As noted above, the Bureau's Quantitative Study determined 
that the integrated disclosures better enable consumers to compare 
their estimated and actual terms and costs than the current 
disclosures, and to understand their final transaction better than 
the current disclosures. See Kleimann Quantitative Study Report at 
46-48.
---------------------------------------------------------------------------

    To the extent consumers ask creditors, settlement agents, or other 
parties questions about their transaction based on the information in 
the Closing Disclosure, the Bureau believes a general three-business-
day requirement will improve consumer awareness and understanding of 
their transaction, consistent with Dodd-Frank Act section 1405(b). 
Enhancing consumer awareness and understanding is one of the principal 
goals of this rulemaking and is consistent with the purpose of the 
integration mandate. Thus, the Bureau believes a potential increase in 
burden associated with additional engagement with consumers is 
justified. In addition, to the extent consumers have an opportunity to 
ask questions and identify errors before they arrive at closing, a 
general three-business-day requirement may increase the efficient 
operation of closings.
    Some commenters were concerned that a three-business-day 
requirement would be difficult to comply with because loan underwriting 
is sometimes not completed until soon before consummation, particularly 
in active real estate markets. While the Bureau

[[Page 79849]]

appreciates that it may be difficult in certain cases to complete 
underwriting in advance, the Bureau does not believe such problems will 
be widespread as a result of a general three-business-day requirement 
because creditors already must be in a position to know a mortgage 
loan's APR as necessary to comply with MDIA's three-business-day 
requirement.
    Commenters were concerned that a three-business-day requirement 
would have a negative impact on consumer choice. As discussed below, 
the Bureau believes the final rule affords consumers flexibility to 
make a wide variety of changes to their transaction between the time 
the Closing Disclosure is first provided and consummation without 
triggering a new three-business-day period. In fact, the Bureau 
believes a requirement to provide the Closing Disclosure so that it is 
received by consumers no later than three business days before 
consummation will help consumers make more informed decisions because 
they will have more information about the entire transaction before 
consummation. Further, in light of the revisions made to the proposed 
redisclosure requirements, discussed in greater detail in the section-
by-section analysis of Sec.  1026.19(f)(2) below, the Bureau does not 
believe a three-business-day period will frustrate consumer choice. The 
Bureau believes these revisions also address commenters' concern that 
closing delays would lead consumers to incur an additional month's 
interest based on FHA payoff rules.\225\
---------------------------------------------------------------------------

    \225\ In addition, the Bureau believes the prepayment penalty 
provisions adopted in the Bureau's 2013 ATR Final Rule and May 2013 
ATR Final Rule will reduce the likelihood that consumers will incur 
such charges in the future.
---------------------------------------------------------------------------

    Several commenters stated that a three-business-day requirement was 
unnecessary because consumers already have time during the loan 
application, underwriting, and closing process to inform themselves 
about their transaction. However, the Bureau is concerned that a 
consumer's ability to understand the transaction and ask questions is 
limited without a single disclosure that presents all of the terms. 
Consumers may have difficulty making purchase decisions or other 
tradeoffs without accurate information about all of the costs involved 
in their transactions. As commenters explained, mortgage loan 
transactions involve many pieces of information from a variety of 
sources and, in some cases, underwriting and title exams may not 
conclude until later in the process. Because creditors and settlement 
agents are in a better position than consumers to coordinate this 
information and account for disbursements, the Bureau believes it is 
appropriate for consumers to receive this information in a single, 
integrated disclosure before consummation. The Bureau understands that 
consumers have an interest in completing their transaction in a timely 
manner, but the Bureau believes this goal can be achieved while also 
providing consumers timely information about the terms of their 
transaction.
    The Bureau also believes a general three-business-day requirement 
is warranted, notwithstanding the Bureau's other Title XIV Rulemakings. 
While regulations adopted in the 2013 ATR Final Rule, 2013 Loan 
Originator Final Rule, and the 2013 HOEPA Final Rule provide important 
consumer protections, they do not specifically address the goal of 
enhancing consumers' awareness and understanding of the specific terms 
of their transaction. Moreover this final rule will work in concert 
with other consumer protections. For example, the Bureau's 2013 HOEPA 
Final Rule adopted counseling requirements, including requirements that 
creditors cannot extend a high-cost mortgage to a consumer unless the 
creditor receives written certification that the consumer has obtained 
counseling on the advisability of the mortgage from an approved 
counselor. See 12 CFR 1026.34(a)(5). In addition, the 2013 HOEPA Final 
Rule adopted requirements that lenders provide loan applicants a 
written list of counseling organizations that provide counseling 
services in the applicant's area. See 12 CFR 1024.20(a)(1). While 
counselors can provide general guidance, they can provide much more 
effective counseling if their advice is tailored to the terms of a 
consumer's transaction, based on information in the Closing Disclosure. 
To this end, the Bureau believes a general three-business-day review 
period will provide consumers time to consult a housing counselor or 
other professionals about the particulars of their transaction before 
consummation.
    Other timing standards recommended by commenters. With respect to 
the suggestion that the Bureau exempt all closed-end consumer credit 
transactions secured by real property from MDIA's three-business-day 
redisclosure requirement (triggered by an inaccurate APR), the Bureau 
declines. For the reasons discussed below, the Bureau believes an 
exemption from the MDIA requirement that consumers receive the TILA 
disclosures three business days before consummation when the APR is 
inaccurate would be inconsistent with both TILA and the goals that this 
final rule seeks to achieve.
    While such an exemption might eliminate concerns about delayed 
closings and reduce some burden on industry, it would remove what the 
Bureau believes is an important existing consumer protection under 
MDIA. As noted above, the Bureau believes consumers should be provided 
the opportunity to review their final loan terms and costs in an 
unpressured environment to identify mistakes, ask questions, and 
generally understand their transaction before becoming obligated to it. 
Providing consumers with information about their final loan terms and 
costs three business days prior to consummation also was recognized by 
the Board and HUD as providing important consumer benefits and was 
recommended by those agencies to Congress. See Board-HUD Joint Report 
at 43-44. In addition, the Bureau has developed the Loan Estimate and 
Closing Disclosure to match closely to enable consumers to easily 
compare their estimated and actual loan terms and costs. Further, as 
noted above, the Bureau's Quantitative Study has determined that the 
Bureau's integrated disclosures perform better than the current 
disclosures at enabling consumers to identify differences between the 
early and final disclosures. See Kleimann Quantitative Study Report at 
46-47.
    Because the Closing Disclosure contains a significant amount of 
detailed content necessary to inform consumers about their loan and 
their settlement charges, the Bureau believes that providing consumers 
with at least three business days before consummation to review the 
information and ask questions provides an important benefit to 
consumers. The Bureau believes the good faith estimate tolerance rules 
under Sec.  1026.19(e)(3) will protect consumers against the most 
significant bait-and-switch risks. However, they do not provide 
protection against all changes that may occur between the time the Loan 
Estimate is provided and consummation. These changes include increases 
in certain real estate-related costs and disbursements to others, which 
could create legal issues for consumers after consummation. Further, 
the Bureau believes that providing consumers with better disclosures to 
identify changes or inaccuracies, as well as providing them with more 
time in which to do so, will further encourage creditors to provide 
more accurate Loan Estimates and Closing Disclosures, and discourage 
the use of bait-and-switch tactics.

[[Page 79850]]

    The Bureau has considered commenters' suggestions that the Closing 
Disclosure be provided earlier than three business days before 
consummation. However, as stated in the proposal, the Bureau also is 
concerned that it would be impractical to require delivery earlier than 
three business days before consummation. Thus, the final rule provides 
flexibility to industry by requiring creditors to ensure that consumers 
receive the disclosures no later than the third business day before 
consummation. Under this approach, a creditor need not complete the 
disclosures until the third business day before consummation, provided 
it can ensure that the consumer will receive the disclosures that day, 
such as via electronic mail consistent with applicable requirements 
regarding electronic delivery or hand delivery. See comments 
19(f)(1)(ii)-2 and 19(f)(1)(iii)-2. In addition, as explained in more 
detail in the section-by-section analysis of Sec.  1026.19(f)(1)(iii) 
below, the final rule makes amendments to the proposal, which the 
Bureau believes will facilitate compliance with the delivery 
requirements.
    The Bureau believes a general three-business-day requirement will 
benefit consumers more than a requirement for creditors to ensure the 
consumer receives the Closing Disclosure two days or one day before 
consummation.\226\ While shorter periods would reduce the extent of 
revisions to the Closing Disclosure before consummation, they would 
provide consumers less time to review the transaction. As noted above, 
the Closing Disclosure, like the current final TILA disclosure and 
RESPA settlement statement, contains a significant amount of 
information regarding the credit and the real estate transaction. The 
Bureau believes a three-business-day period in which to review the 
information is a reasonable amount of time considering this significant 
amount of information on the disclosure. The Bureau also believes a 
three-business-day period is appropriate because the three-business-day 
period was the period recently instituted by Congress under its MDIA 
amendments to TILA with respect to creditor disclosures when the loan's 
previously disclosed APR becomes inaccurate.
---------------------------------------------------------------------------

    \226\ While the final rule does not impose a requirement for 
creditors to ensure that consumers receive the Closing Disclosure 
one or two days before consummation, the final rule does include a 
requirement for creditors to permit consumers a right to inspect the 
Closing Disclosure the business day before consummation upon the 
consumer's request. See the section-by-section analysis of Sec.  
1026.19(f)(2)(i).
---------------------------------------------------------------------------

    Transactions subject to the three-business-day right of rescission. 
The Bureau declines to exempt transactions subject to the three-
business-day right of rescission from Sec.  1026.19(f)(1)(ii)(A) or 
otherwise amend the rescission rules.\227\ The Bureau believes the pre-
consummation waiting period and the post-consummation waiting period 
for transactions subject to the right of rescission serve different 
purposes. The pre-consummation period permits the consumer an 
opportunity to understand the specific elements of the transaction, 
question specific charges, ask questions, consider other options, or 
potentially improve the terms of the transaction prior to consummation. 
On the other hand, the right of rescission provides consumers an 
opportunity to unwind the entire transaction and receive any fees they 
may have paid for the transaction. Exempting transactions subject to 
the right of rescission from the general three-business-day pre-
consummation review period would mean many consumers would lose the 
opportunity to review the transaction details and resolve any concerns 
before consummation. The Bureau further notes that the Congresses that 
passed the Dodd-Frank Act and MDIA did not exempt rescindable 
transactions from MDIA's three-business-day waiting period. Currently 
under Regulation Z, creditors must provide the final TILA disclosures 
so that consumers receive them no later than three business days before 
consummation if the loan's previously disclosed APR becomes inaccurate, 
even if the loan is subject to the post-consummation three-business-day 
right of rescission.
---------------------------------------------------------------------------

    \227\ For certain transactions, including refinancings with a 
new creditor or refinancings with the same creditor where new money 
is advanced, TILA grants consumers a three-day right to rescind the 
transaction where a security interest is or will be retained in the 
consumer's principal dwelling. See 15 U.S.C. 1635(a). The right of 
rescission permits consumers time to reexamine their credit 
contracts and cost disclosures and to reconsider whether they want 
to put their home at risk by offering it as security for credit. See 
12 CFR 1026.23.
---------------------------------------------------------------------------

    While the Bureau has authority to exempt transactions from TILA's 
requirements in certain circumstances, an exemption is not warranted 
here because the amendments made to the final rule's redisclosure 
requirements in Sec.  1026.19(f)(2) will significantly reduce the 
potential for closing delays. In addition, refinancings that are 
subject to the right of rescission typically involve fewer parties and 
require less coordination than purchase-money transactions. Thus, the 
Bureau believes creditors in those transactions should be able to 
provide disclosures for transactions subject to the right of rescission 
three business days before consummation without imposing burdensome 
delays on consumers.
    Consummation v. settlement. The final rule requires that the 
Closing Disclosure be provided three business days before 
``consummation,'' rather than before ``settlement.'' In general, TILA 
and Regulation Z require that creditors provide final TILA disclosures 
in certain circumstances three business days before ``consummation'' of 
the credit transaction, while RESPA and Regulation X require settlement 
agents to provide the RESPA settlement statement at or before 
``settlement.'' Regulation Z currently defines ``consummation'' as 
``the time that a consumer becomes contractually obligated on a credit 
transaction.'' See 12 CFR 1026.2(a)(13). Regulation X, by contrast, 
provides that the RESPA settlement statement must be delivered by 
``settlement,'' which is defined as ``the process of executing legally 
binding documents regarding a lien on a property that is subject to a 
federally related mortgage loan.'' See 12 CFR 1024.2(b). The Bureau 
appreciates that ``consummation'' and ``settlement'' may not always 
coincide in some jurisdictions. The Bureau believes that reconciling 
this difference between TILA and RESPA satisfies the integration 
mandate. The Bureau believes ``consummation'' is appropriate because 
TILA section 128(b)(2)(D) requires that the creditor provide final TILA 
disclosures no later than three business days before consummation where 
the loan's previously disclosed APR becomes inaccurate. See 15 U.S.C. 
1638(b)(2)(D). This is the standard that applies to TILA disclosures 
currently under MDIA, which, as amended by Dodd-Frank Act section 1419, 
include the disclosure of settlement cost information. See 15 U.S.C. 
1638(a)(17). In addition, TILA requires that the early TILA disclosures 
be provided no later than seven business days before ``consummation.'' 
15 U.S.C. 1638(b)(2)(A). The Bureau believes that the early and final 
TILA disclosures should be provided in the sequence set forth under 
TILA to ensure consumers benefit from the time necessary to review the 
respective disclosures before becoming obligated on the credit 
transaction. In addition, because ``consummation'' is a particular 
point in time, while ``settlement'' is defined as a ``process,'' the 
Bureau believes the rule provides clarity with respect to when the 
disclosures must be provided. Accordingly, the final rule uses 
``consummation'' as the timing standard

[[Page 79851]]

applicable to the provision of the Closing Disclosure.
    As noted above, the Bureau recognizes that ``consummation'' and 
``settlement'' may not coincide in some jurisdictions. Indeed, the 
definition of ``settlement'' in Regulation X indicates that a 
settlement is not necessarily a singular event involving the execution 
of one agreement, but is instead a ``process of executing legally 
binding documents'' regarding a lien on property that is subject to a 
federally related mortgage loan. See 12 CFR 1024.2(b). Thus, in some 
jurisdictions, a settlement may begin before ``consummation'' under 
Regulation Z, and, in some jurisdictions, may conclude later.
    The Bureau believes that the final rule should account for the 
variety of ways settlements are handled across the country without 
imposing unnecessary costs on consumers, sellers, or industry. 
Accordingly, the final rule provides additional flexibility by 
narrowing the triggers for new three-business-day waiting periods when 
changes occur to the terms of the transaction, as discussed in the 
section-by-section analysis of Sec.  1026.19(f)(2). The Bureau believes 
these changes will help ensure the efficient operation of closings. To 
account for situations in which consummation may occur before a 
settlement concludes, the final rule provides additional flexibility 
for post-consummation events, as discussed in the section-by-section 
analysis of Sec.  1026.19(f)(2)(iii) below.
    Some commenters requested clarification of when ``consummation'' 
occurs, specifically inquiring whether it occurs when documents are 
recorded. As noted above, ``consummation'' is defined as ``the time 
that a consumer becomes contractually obligated on a credit 
transaction.'' See 12 CFR 1026.2(a)(13). Existing commentary to 
Regulation Z explains that when a contractual obligation on the 
consumer's part is created is a matter to be determined under 
applicable law, and that Regulation Z does not make this determination. 
See comment 2(a)(13)-1. Existing commentary also explains that 
consummation does not occur when the consumer becomes contractually 
committed to a sale transaction, unless the consumer also becomes 
legally obligated to accept a particular credit arrangement. See 
comment 2(a)(13)-2.
    Business day. As noted in the section-by-section analysis of Sec.  
1026.2(a)(3), the final rule adopts the specific definition of business 
day applicable to Sec.  1026.19(f)(1)(ii), as proposed. The Bureau 
believes the specific definition in Sec.  1026.19(f)(1)(ii) is 
appropriate because the delivery requirement in Sec.  
1026.19(f)(1)(iii), as discussed in the section-by-section analysis for 
that section, provides that the consumer is deemed to have received the 
Closing Disclosure three business days after they are mailed or 
delivered, if not provided to the consumer in person. That provision 
uses the specific definition of business day to account for the current 
practice of United States postal service delivery on Saturday. Using 
the specific definition for the Closing Disclosure delivery 
requirements in this rule also will assist industry and consumers by 
facilitating the efficient delivery of the Closing Disclosure to reduce 
the potential for closing delays.
    The Bureau does not expect that such use of the specific definition 
of business day in this rule will impose costs on industry because it 
would not operate to require that a creditor's or settlement agent's 
office be open on Saturday. It only enables them to count Saturday as a 
day on which the consumer received the disclosures. The Bureau believes 
that using the general definition of business day in Sec.  
1026.19(f)(1)(ii) and (f)(1)(iii) would create unnecessary delays in 
many cases because it would mean that creditors and settlement agents 
could not count Saturdays as a day of receipt, unless the creditor's or 
settlement agent's offices were open to the public for carrying on 
substantially all of its business functions. The Bureau believes it 
would be incongruous if the regulation did not recognize a consumer's 
actual receipt of the Closing Disclosure on a Saturday simply because 
the creditor's offices were not open. The Bureau recognizes that using 
a consistent definition of business day, both within Regulation Z and 
between Regulation X and Regulation Z, could benefit industry and 
consumers alike by providing more certainty regarding regulatory 
requirements and reducing compliance costs. However, the Bureau 
believes that streamlining the definition of business day should be 
part of a more comprehensive assessment of Regulation Z, which the 
Bureau believes is outside of the scope of this rulemaking. See the 
section-by-section analysis of Sec.  1026.2(a)(6) for additional 
discussion of the definition of business day.
    Other issues raised by commenters. With respect to a commenter's 
request that the final rule include protections for the creditor from 
breach of contract claims arising from delayed closing, the final rule 
does not expressly address such limitations on creditor liability. The 
final rule addresses disclosure obligations under TILA and RESPA; other 
creditor duties are outside the scope of this rulemaking. With respect 
to the commenter's request that the final rule address creditor 
liability for the accuracy of the Closing Disclosure, see the section-
by-section analyses of Sec.  1026.19(f)(1)(i) and (f)(1)(v).
    Final provisions. For the aforementioned reasons, the final rule 
adopts Sec.  1026.19(f)(1)(ii)(A) and comment 19(f)(1)(ii)-1 
substantially as proposed. Final Sec.  1026.19(f)(1)(ii)(A) makes 
technical revisions by adding references to other provisions of Sec.  
1026.19(f) that serve as exceptions to the general three-business-day 
requirement under Sec.  1026.19(f)(1)(ii)(A). Specifically, the final 
rule replaces the reference to Sec.  1026.19(f)(2) with more specific 
references to Sec.  1026.19(f)(2)(i) and (f)(2)(iii) through (f)(2)(v). 
This change has been made because final Sec.  1026.19(f)(2) has been 
revised to narrow the circumstances under which a new pre-consummation 
three-business-day period is required, as discussed in the section-by-
section analysis of Sec.  1026.19(f)(2)(i) and (ii) below. The final 
rule makes conforming changes to comment 19(f)(1)(ii)-1. Comment 
19(f)(1)(ii)-1 also includes a technical revision by omitting a 
reference to comment 2(a)(6)-1 so that comment 19(f)(1)(ii)-1 cross-
references only comment 2(a)(6)-2, which discusses the specific 
definition of business day applicable to Sec.  1026.19(f)(1)(ii).
    The final rule also adopts comment 19(f)(1)(ii)-2, with 
modifications. The comment has been reorganized for clarity, makes 
technical revisions, and includes additional discussion. The comment 
references the receipt rule in Sec.  1026.19(f)(1)(iii) and includes 
examples illustrating when the Closing Disclosure would have to be 
delivered or placed in the mail to ensure the consumer receives the 
Closing Disclosure no later than three business days before 
consummation. The Bureau believes this language helps clarify the 
example that follows. In that example, consummation is scheduled for 
Thursday, and the comment explains that a creditor would satisfy the 
requirements of Sec.  1026.19(f)(1)(ii)(A) if the creditor places the 
disclosures in the mail on Thursday of the previous week, because, for 
the purposes of Sec.  1026.19(f)(1)(ii), Saturday is a business day, 
pursuant to Sec.  1026.2(a)(6), and, pursuant to Sec.  
1026.19(f)(1)(iii), the consumer would be considered to have received 
the disclosures on the Monday before consummation is scheduled. The 
comment also includes a cross-reference to comment 19(f)(1)(iii)-1, 
which further clarifies the requirements of

[[Page 79852]]

Sec.  1026.19(f)(1)(iii) applicable to mail delivery. The comment also 
explains that a creditor would not satisfy the requirements of Sec.  
1026.19(f)(1)(ii)(A) in this example if the creditor places the 
disclosures in the mail on the Monday before consummation.
    The comment also includes more detail than proposed comment 
19(f)(1)(ii)-2 in explaining how a creditor in the above example could 
satisfy the requirements of Sec.  1026.19(f)(1)(ii)(A) by delivering 
the Closing Disclosure by way of electronic mail on a day (Monday) that 
is three business days before consummation (Thursday). The comment also 
revises the proposal's reference to Sec.  1026.17(a)(1) relating to 
disclosures in electronic form. The final comment refers to Sec.  
1026.38(t)(3)(iii) instead, which permits the Closing Disclosure to be 
provided in electronic form, subject to compliance with the E-Sign Act. 
As revised, the comment explains that the creditor in the above example 
could satisfy the requirements of Sec.  1026.19(f)(1)(ii)(A) by 
delivering the disclosures on Monday, for instance, by way of 
electronic mail, provided the requirements of Sec.  1026.38(t)(3)(iii) 
relating to disclosures in electronic form are satisfied and assuming 
that each weekday is a business day, and provided that the creditor 
obtains evidence that the consumer received the emailed disclosures on 
Monday. The comment also includes a cross-reference to comment 
19(f)(1)(iii)-2, which discusses how Sec.  1026.19(f)(1)(iii) applies 
to delivery methods other than mail delivery.
    Final Sec.  1026.19(f)(1)(ii)(A) and comments 19(f)(1)(ii)-1 and -2 
are adopted pursuant to the Bureau's legal authority under sections 
105(a) of TILA, 19(a) of RESPA, 1032(a) of the Dodd-Frank Act, and, for 
residential mortgage transactions, sections 129B(e) of TILA and 1405(b) 
of the Dodd-Frank Act. The Bureau has considered the purposes for which 
it may exercise its authority under section 105(a) of TILA and, based 
on that review, believes that the rule and commentary are appropriate. 
The final rule and commentary will help consumers avoid the uninformed 
use of credit by ensuring that consumers receive disclosures of the 
actual terms and costs associated with the mortgage loan transaction 
early enough that consumers have sufficient time to become fully 
informed as to the cost of their credit. The final rule and commentary 
are consistent with section 129B(e) of TILA because failing to provide 
borrowers with enough time to become fully informed of the actual terms 
and costs of the transaction is not in the interest of the borrower.
    The Bureau also has considered the purposes for which it may 
exercise its authority under section 19(a) of RESPA and, based on that 
review, believes that the final rule and commentary are appropriate. 
The final rule and commentary will ensure more effective advance 
disclosure of settlement costs by requiring creditors to disclose the 
actual settlement costs associated with the transaction three business 
days before consummation.
    The final rule and commentary are consistent with Dodd-Frank Act 
section 1032(a) because the features of mortgage loan transactions and 
settlement services will be more fully, accurately, and effectively 
disclosed to consumer in a manner that permits consumers to understand 
the costs, benefits, and risks associated with the mortgage loan and 
settlement services if consumers receive the disclosures reflecting the 
terms and costs associated with their transactions three business days 
before consummation.
    In addition, the Bureau has considered the purposes for which it 
may exercise its authority under section 1405(b) of the Dodd-Frank Act 
and, based on that review, believes that the final rule and commentary 
are appropriate. The final rule and commentary will improve consumer 
awareness and understanding of the mortgage loan transaction by 
ensuring that consumers receive the disclosures reflecting the terms 
and costs associated with their transactions three business days in 
advance of consummation. The final rule and commentary also will be in 
the interest of consumers and in the public interest because they may 
eliminate the opportunity for bad actors to surprise consumers with 
unexpected costs at the closing table, when consumers are less able to 
question such costs.
    The Bureau recognizes that the timing requirement in Sec.  
1026.19(f)(1)(ii)(A) is a change from current industry practice. During 
the Small Business Review process, several small entity representatives 
were opposed to this modification. See Small Business Review Panel 
report at 35, 38, 40, 45, 53-54, 59-60, 67-68, 72, and 77. The Small 
Business Review Panel recommended that the Bureau explore ways to 
mitigate the potential impact of the three business day requirement on 
small entities. Id. at 29. While the final rule continues to require 
that the Closing Disclosure be provided to consumers three business 
days before consummation in all circumstances, the final rule has 
provided for more flexibility, in part, because of the concern of the 
rule's impact on the market. As discussed above in the section-by-
section analysis of Sec.  1026.19(f)(1)(i), the final rule includes new 
comment 19(f)(1)(i)-2, which clarifies when creditors may use the best 
information reasonably available when providing the disclosures 
required under Sec.  1026.19(f)(1)(i). In addition, the final rule 
narrows the circumstances under which a new waiting period will be 
triggered for revisions to the Closing Disclosure, as discussed in more 
detail in the section-by-section analysis of Sec.  1026.19(f)(2) below. 
Further, the final rule clarifies the receipt requirements in Sec.  
1026.19(f)(1)(iii), which the Bureau believes will facilitate 
compliance. The Bureau believes these modifications will reduce burden 
on small entities.
19(f)(1)(ii)(B) Timeshares
    As explained above, in 2008 Congress amended TILA to require 
delivery of final disclosures three business days prior to 
consummation. However, Congress explicitly exempted mortgage loans 
secured by timeshares from MDIA's three-business-day requirement.\228\ 
Accordingly, the Bureau proposed Sec.  1026.19(f)(1)(ii)(B), which 
would have provided that, for transactions secured by a consumer's 
interest in a timeshare plan described in 11 U.S.C. 101(53D), the 
creditor shall ensure that the consumer receives the disclosures 
required under Sec.  1026.19(f)(1)(i) no later than consummation. The 
Bureau proposed these requirements pursuant to its authority under 
sections 105(a) of TILA, 19(a) of RESPA, and 1405(b) of the Dodd-Frank 
Act.
---------------------------------------------------------------------------

    \228\ See MDIA, Public Law 110-289, section 2502(a)(6), 122 
Stat. 2654, 2857 (2008); 15 U.S.C. 1638(b)(2)(G). ``Timeshare'' is 
defined in 11 U.S.C. 101(53D).
---------------------------------------------------------------------------

    Proposed comment 19(f)(1)(ii)-3 would have explained that, for 
loans secured by timeshares, Sec.  1026.19(f)(1)(ii)(B) requires a 
creditor to ensure that the consumer receives the disclosures required 
under Sec.  1026.19(f)(1)(i) as soon as reasonably practicable, but no 
later than consummation. The proposed comment also would have included 
illustrative examples of this requirement.
    Comments. A trade association representing the timeshare industry 
supported the Bureau's proposed exemption from the Closing Disclosure's 
timing requirements. The commenter also explained that proposed comment 
19(f)(1)(ii)-3 should be modified to clarify that, if the creditor in 
the case of a transaction secured by a consumer's

[[Page 79853]]

interest in a timeshare plan provides the credit application and 
consummates the transaction on the same day, or if consummation occurs 
a day after the application is received, there should be no requirement 
to provide the Loan Estimate required by Sec.  1026.19(e)(1)(iii), and 
that the creditor would comply with Sec.  1026.19(e)(1)(iii) and 
(f)(1)(i) by providing the Closing Disclosure. As discussed in the 
section-by-section analysis of Sec.  1026.19(e)(1)(iii) above, the 
commenter noted that timeshare transactions are typically consummated 
on the same or very next day after the creditor receives the 
application.
    The commenter also requested that comment 19(f)(1)(ii)-3 be amended 
to clarify that timeshare transactions covered by the rule may be 
consummated at any time after the Closing Disclosure is provided, 
similar to language in existing comment 19(a)(5)(ii)-1. The commenter 
further requested that language be added to the comment explaining that 
the disclosures required by Sec.  1026.19(e)(1)(iii) and (f)(1)(i) are 
not required to be provided if the consumer's application will not or 
cannot be approved on terms requested by the consumer or if the 
consumer has withdrawn the application, similar to language in existing 
comment 19(a)(5)(ii)-4.
    The commenter also requested that the Bureau also exempt timeshares 
from many of the Dodd-Frank Act's amendments to TILA by, for example, 
allowing timeshare lenders to use a timeshare-specific Closing 
Disclosure form or to strike out or omit inapplicable disclosures on 
the proposed forms. The commenter indicated that this would fulfill the 
exemption for timeshares recognized in the Dodd-Frank Act.
    Final rule. The Bureau adopts Sec.  1026.19(f)(1)(ii)(B) and 
comment 19(f)(1)(ii)-3 substantially as proposed, but has added 
additional commentary in response to the comments received. As 
discussed in the section-by-section analysis of Sec.  1026.19(f)(1)(i), 
the final rule includes comment 19(f)(1)(i)-3 explaining that, for 
transactions covered by Sec.  1026.19(f)(1)(i), creditors may rely on 
comment 19(e)(1)(iii)-3 in determining that disclosures are not 
required by Sec.  1026.19(f)(1)(i) because the consumer's application 
will not or cannot be approved on the terms requested or the consumer 
has withdrawn the application. Thus, for timeshare transactions covered 
by Sec.  1026.19(f)(1)(ii)(B), creditors need not provide the Closing 
Disclosure if a consumer's application is denied or withdrawn, in 
accordance with comment 19(f)(1)(i)-3.
    Comment 19(f)(1)(ii)-3 adds language to proposed comment 
19(f)(1)(ii)-3 clarifying that timeshare transactions may be 
consummated at the time or any time after the disclosures required by 
Sec.  1026.19(f)(1)(i) are received by the consumer. To avoid 
uncertainty over whether consummation may occur after only the Closing 
Disclosure is provided, the comment also indicates that, in some cases, 
the Loan Estimate must be provided under Sec.  1026.19(e) and includes 
a cross-reference to comment 19(e)(1)(iii)-4. Comment 19(f)(1)(ii)-3 
amends the examples in proposed comment 19(f)(1)(ii)-3 to demonstrate 
that the Closing Disclosure must be provided no later than 
consummation. The comment includes an example in which an application 
is received on a Monday and consummation occurs on Friday of that week. 
The comment also includes an example in which an application is 
received on a Monday and consummation occurs the next day, on Tuesday 
of that week. In both examples, the Closing Disclosure must be provided 
no later than consummation.
    To conform the comment to the language in Sec.  
1026.19(f)(1)(ii)(B), the comment omits language in proposed comment 
19(f)(1)(ii)-3 that would have explained that, if an application is 
received on a Monday and consummation is scheduled for Friday, ``the 
creditor may provide the consumer with the disclosures required by 
Sec.  1026.19(f)(1)(i) on Tuesday, June 2, if doing so is reasonably 
practicable.'' The comment also revises proposed guidance that would 
have addressed compliance with Sec.  1026.19(e). Comment 19(f)(1)(ii)-3 
explains that, in some cases, a Loan Estimate also must be provided 
under Sec.  1026.19(e) and includes a cross-reference to comment 
19(e)(1)(iii)-4, which addresses the provision of the Loan Estimate in 
timeshare transactions, as discussed in the section-by-section analysis 
of Sec.  1026.19(e)(1)(iii).
    Section 1026.19(f)(1)(ii)(B) and comment 19(f)(1)(ii)-3, as 
finalized, carry out the purposes of TILA and RESPA by ensuring 
meaningful disclosure of credit terms and effective advance disclosure 
of settlement costs, consistent with section 105(a) of TILA and 19(a) 
of RESPA, respectively. Also, the final rule and commentary will 
improve consumer awareness and understanding of transactions involving 
residential mortgage loans by requiring effective disclosure within a 
timeframe appropriate for loans secured by a timeshare, which will be 
in the best interest of consumers and the public consistent with Dodd-
Frank Act section 1405(b).

19(f)(1)(iii) Receipt of Disclosures

    TILA and RESPA differ in their treatment of delivery requirements 
for the final disclosures. Section 128(b)(2)(E) of TILA, as amended by 
MDIA, provides that, if the disclosures are mailed to the consumer, the 
consumer is considered to have received them three business days after 
they are mailed. 15 U.S.C. 1638(b)(2)(E). RESPA does not expressly 
address delivery requirements. Regulation Z provides that if the 
disclosures are provided to the consumer by means other than delivery 
in person, the consumer is deemed to have received the disclosures 
three business days after they are mailed or delivered. See 12 CFR 
1026.19(a)(2)(ii). Regulation X provides that the settlement agent 
shall deliver the completed RESPA settlement statement at or before the 
settlement, except if the borrower waives the right to delivery of the 
completed RESPA settlement statement, in which case the completed RESPA 
settlement statement shall be mailed or delivered as soon as 
practicable after settlement. See 12 CFR 1024.10(b), (c).
    To establish a consistent standard for the Closing Disclosure, the 
Bureau proposed to adopt Sec.  1026.19(f)(1)(iii), which would have 
provided that, if any disclosures required under Sec.  1026.19(f)(1)(i) 
are not provided to the consumer in person, the consumer is presumed to 
have received the disclosures three business days after they are mailed 
or delivered to the address specified by the consumer. The Bureau 
proposed these requirements pursuant to its authority under sections 
105(a) of TILA, 19(a) of RESPA, and 1405(b) of the Dodd-Frank Act. 
Proposed Sec.  1026.2(a)(6) would have applied the specific definition 
of ``business day'' to Sec.  1026.19(f)(1)(iii). The specific 
definition of business day is the definition that applies to the right 
of rescission in Sec.  1026.23 and includes all calendar days except 
Sundays and the legal public holidays specified in 5 U.S.C. 6103(a).
    Proposed comment 19(f)(1)(iii)-1 would have explained that if any 
disclosures required under Sec.  1026.19(f)(1)(i) are not provided to 
the consumer in person, the consumer is presumed to have received the 
disclosures three business days after they are mailed or delivered. The 
proposed comment would have further explained that this is a 
presumption which may be rebutted by providing evidence that the 
consumer received the disclosures earlier than three business

[[Page 79854]]

days. The proposed comment also would have included illustrative 
examples. Proposed comment 19(f)(1)(iii)-2 would have clarified that 
the presumption established in Sec.  1026.19(f)(1)(iii) applies to 
methods of electronic delivery, such as email. However, the comment 
also would have explained that creditors using electronic delivery 
methods, such as email, must also comply with Sec.  1026.17(a)(1). This 
proposed comment also would have included illustrative examples.
    The Bureau recognized in the proposal that this requirement is 
different than the current requirement in Regulation Z. As explained 
above, the current rules deem corrected disclosures mailed or delivered 
to the consumer by a method other than in-person delivery to be 
received three business days after mailing or delivery. In contrast, 
the proposed rule instead would have created a presumption that the 
disclosures are received three business days after they are mailed or 
delivered to the address provided by the consumer. The Bureau was 
concerned that the current rule may not be appropriate for the Closing 
Disclosure, which contains much more information than the final TILA 
disclosures subject to the current rule, and therefore would require 
more time to review and understand. The Bureau reasoned that it 
therefore may be appropriate to create a presumption of receipt, which 
would provide additional encouragement for lenders to ensure that the 
disclosures are received in a timely manner.
    The Bureau solicited feedback regarding whether the proposed rule 
would create uncertainty regarding compliance and whether the rule 
should be made analogous to Sec.  1026.19(a)(2), which uses ``deem'' 
instead of ``presume,'' or whether Sec.  1026.19(a) should be modified 
to reflect Sec.  1026.19(f)(1)(iii), if the final rule adopts the 
presumption of receipt.
Comments
    The Bureau received public comment and an ex parte submission 
regarding the proposed rule's presumption of receipt. A variety of 
commenters identified the proposed three-day presumption of receipt as 
a potential source of additional costs and delays. Commenters observed 
that the three-day presumption of receipt would add three more business 
days to the general three-business-day pre-consummation period, which 
could require that the Closing Disclosure be provided a minimum of six 
business days before consummation. Many commenters had questions about 
what type of evidence would be sufficient to demonstrate compliance 
with the rule and to respond to challenges to the presumption that the 
Closing Disclosure was not timely received.
    Some commenters, including the SBA, expressed concern that 
demonstrating evidence of physical delivery, such as by using an 
overnight courier service, could be burdensome, and asked that the 
Bureau provide flexibility in the delivery rules such as by recognizing 
methods of electronic delivery and by providing clear guidance on what 
forms of proof are sufficient to demonstrate compliance. The SBA 
observed that the three-day presumption applied even for disclosures 
that are emailed, unless it could be proved that they were received 
earlier. A trade association representing settlement agents asked 
whether delivery by facsimile machine would be acceptable. A number of 
commenters suggested that electronic delivery methods, such as 
facsimile or email, could raise questions about how to demonstrate 
evidence of delivery, such as by read receipt, return receipt, an email 
from the person to be obligated on the loan, or email tracking metrics, 
such as open and click-through rates.
    Several bank and credit union commenters, trade associations 
representing banks and financial companies, settlement agents, and 
title insurance commenters expressed concern that use of the word 
``presumed'' meant the presumption could be defeated by an assertion 
that a consumer received it more than three business days after mailing 
or by denying that they received the disclosure by presenting oral 
evidence or a written affidavit. Commenters expressed concerns that 
managing compliance risk associated with defeating the presumption 
would likely delay closings and increase costs.
    Trade associations representing banks expressed concern that the 
rebuttable presumption could delay closings because creditors or 
settlement agents would wait until they obtained sufficient evidence of 
receipt, particularly if a consumer waited to notify someone that it 
did not receive a timely disclosure. One trade association representing 
banks explained that creditors would not know that a consumer did not 
receive a mailed disclosure, or that receipt had been delayed, unless 
the consumer informed the creditor, and that the pre-consummation 
waiting period could be delayed if consumers wait to tell creditor that 
they did not receive the Closing Disclosure. A credit union commenter 
observed that a three-day presumption for electronic communications 
would encourage industry to send documents in-person or by overnight 
delivery to guarantee receipt.
    A large bank commenter was concerned that creditors could face TILA 
liability for mail delivery delays that are outside of the creditor's 
control. A title insurance company explained that the rebuttable 
presumption would increase post-closing litigation, and that higher 
litigation risk would increase costs that would be passed on to 
consumers.
    Rural lenders, settlement agents, and trade associations 
representing attorneys and settlement agents expressed concern about 
how the timing of the Closing Disclosure could impact closings in rural 
areas. Commenters explained that consumers are frequently in transit 
over long distances to attend a closing and may not always be able to 
receive documents electronically, that delivery can take longer than 
three days in certain areas and that certain carriers will not deliver 
documents on Saturdays. A rural lender explained that in-person 
delivery is not always an option in rural areas, so creditors would 
likely have to mail the Closing Disclosure six business days before 
consummation, but that proving timely delivery would be difficult.
    To address these concerns, a large bank commenter recommended that 
the Bureau clarify in commentary that the presumption may be rebutted 
only by evidence that consumer received the disclosure earlier than 
three business days after mailing or delivery, but that it could not be 
challenged by assertions or evidence that the disclosures were in fact 
received more than three business days after mailing. A variety of 
commenters recommended retaining the current rule in Regulation Z that 
disclosures are deemed to be received three days after placed in the 
mail. A title insurance company commenter explained that ``deemed'' 
would make compliance more certain and would not delay transactions 
while creditors and settlement agents obtain evidence of receipt. The 
commenter suggested that the term ``presume'' would lead to post-
closing litigation when persons in default on their loans attempt to 
rebut the presumption that disclosure was received within three days, 
which would increase costs to consumers because creditors and 
settlement agents would be forced to defend such litigation, and 
litigation costs would ultimately be passed on to consumers in the form 
of higher fees.
    Credit union commenters recommended that the final rule establish a 
presumption of instant

[[Page 79855]]

receipt based on electronic delivery in all cases, or in cases where 
consumers have agreed to receive electronic communications. The 
commenter explained that electronic communications are received nearly 
instantly after sending, and it is likely that individuals involved in 
important transactions will check their electronic communications more 
than once per day. One trade association representing credit unions 
explained that it is reasonable to assume that members who have agreed 
to receive electronic communications expect to receive disclosures by 
email, and that a consumer's agreement to receive notices 
electronically should constitute adequate notice of expected delivery. 
A credit union commenter stated that electronic delivery should not 
require evidence to defeat the presumption in any case. One non-
depository lender recommended that the presumption of delivery for 
emailed disclosure be shortened to 24 hours.
    Commenters asked for clarification on what forms of evidence could 
be used to demonstrate the consumer received the disclosures for 
purposes of demonstrating compliance or rebutting the three-day 
presumption (and, by extension, defeating such rebuttals). A large bank 
in an ex parte comment asked that the Bureau confirm that an 
applicant's representation to the creditor, such as a recorded verbal 
acknowledgement or a signed statement, could defeat the presumption 
(i.e., to prove that they received it earlier, or later, than three 
days). A trade association representing settlement agents and the title 
insurance industry asked, if the disclosure is delivered by the United 
States Postal Service or a courier service, whether a delivery 
confirmation, signature confirmation service, return receipt, or 
certified mail, could rebut the presumption of receipt. The commenter 
also asked whether a certificate of mailing or track-and-confirm 
receipt could establish the date on which the disclosure was sent. The 
commenter also asked, if a signature is required for confirmation of 
receipt, whether the signature must be the signature of the person 
named as a party to the loan.
    A software company commenter requested clarification on whether the 
day the disclosures are mailed or delivered counts as the first day for 
purposes of the delivery requirements in 19(f)(1)(iii). Commenters also 
requested clarification regarding how to deliver the Closing Disclosure 
when there are multiple consumers involved. Several trade associations 
representing banks and financial companies requested clarification that 
the three-day period begins when the Closing Disclosure is delivered to 
the ``primary'' consumer when there are multiple consumers. One trade 
association representing settlement agents asked whether a particular 
consumer could elect a different method of delivery than a co-borrower. 
Another commenter asked that if multiple consumers are to be obligated 
on the loan, whether all of them must sign a delivery receipt to 
confirm they have received the Closing Disclosure.
Final Rule
    The Bureau has considered the comments on this aspect of the 
proposal and is modifying the proposed provision creating a presumption 
of receipt three business days after delivery. The final rule adheres 
to the statutory provision under MDIA. The final rule provides that, if 
the Closing Disclosure is mailed to the consumer or delivered to the 
consumer by means other than delivery in person, the consumer is 
considered to have received the disclosure three business days after it 
is mailed or delivered. The final rule makes this change to reflect the 
standard for determining receipt set forth in TILA section 
128(b)(2)(E), as amended by MDIA, in response to comments that 
indicated a presumption of receipt could delay closings and increase 
costs for consumers. This is the standard that currently applies to the 
final TILA disclosures under Sec.  1026.19(a)(2).
    When it issued the proposal, the Bureau reasoned that the 
presumption of receipt rule at proposed Sec.  1026.19(f)(1)(iii) would 
provide additional encouragement for lenders to ensure that disclosures 
are received in a timely manner. Commenters provided feedback 
explaining that, to manage compliance risk associated with a 
presumption of receipt, creditors and settlement agents may incur 
additional costs and delay closings to ensure they have evidence of 
receipt. Accordingly, commenters requested clarification on the types 
of evidence that would be sufficient under the proposal, including an 
ex parte comment requesting clarification of whether a recorded verbal 
acknowledgment or a signed statement from the consumer would be 
sufficient to demonstrate compliance or withstand a challenge to the 
presumption of receipt.
    In light of the variety of delivery methods and options offered by 
service providers, it is not feasible to define with sufficient clarity 
what evidence will demonstrate compliance or withstand a challenge to 
the presumption of receipt; such a determination would involve a 
factual inquiry. Without a bright-line standard or extensive regulatory 
guidance, the Bureau believes industry would likely seek to document 
evidence of receipt, such as through recorded verbal or written 
acknowledgements or affidavits, which may unnecessarily delay many 
transactions. The Bureau also is concerned that demonstrating 
compliance under the proposal could be especially difficult and costly 
in rural areas. Creditors and settlement agents in rural areas 
explained that long distances separate parties to a transaction, and 
that it is often difficult for creditors to obtain evidence that a 
consumer has, in fact, received a disclosure. By adhering to the 
statutory provision under MDIA, the final rule should facilitate 
compliance for creditors and settlement agents in these areas. 
Accordingly, the final rule modifies proposed Sec.  1026.19(f)(1)(iii) 
so that the provision adheres to the statutory mailbox rule under TILA 
section 128(b)(2)(E) and the standard currently in Regulation Z Sec.  
1026.19(a)(2).
    The final rule does not prevent creditors from arranging earlier 
delivery of the Closing Disclosure provided they ensure the consumer 
receives the disclosures no later than three business days before 
consummation, consistent with Sec.  1026.19(f)(1)(ii) and (iii). 
Moreover, to accommodate changes that may occur between the time the 
Closing Disclosure is provided and consummation, the final rule has 
narrowed the triggers for new three-business-day waiting periods under 
the rule's redisclosure requirements, as discussed in the section-by-
section analysis of Sec.  1026.19(f)(2) below. The Bureau believes this 
change will further reduce the impact on industry and consumers in 
rural areas.
    The final rule does not adopt separate rules or presumptions 
regarding the delivery of disclosures by overnight courier, electronic 
transmission, or other means. Although these methods may be faster than 
delivery by regular mail, the Bureau does not believe it is feasible to 
adequately identify satisfactory compliance in all cases. Nor does the 
Bureau believe it has sufficient information to identify a separate 
presumption of receipt for particular delivery methods, such as 
electronic delivery methods. However, a creditor or settlement agent is 
not required to use the three-business-day delivery standard to 
determine when the waiting period required by Sec.  1026.19(f)(1)(iii) 
begins. Thus, if a creditor or settlement agent delivers the Closing 
Disclosure electronically consistent with

[[Page 79856]]

Sec.  1026.38(t)(3)(iii) or delivers the Closing Disclosure by 
overnight courier, the creditor or settlement agent may rely on 
evidence of actual delivery (such as documentation that the Closing 
Disclosure was received by certified mail or overnight delivery that 
uses a signature to accept delivery or email, if similar documentation 
is available) to determine when the three-business-day waiting period 
begins.
    Some commenters requested clarification on when a Closing 
Disclosure is considered delivered for purposes of counting the three-
business-day rule. For clarity and consistency with other provisions of 
Sec.  1026.19(e) and (f), final Sec.  1026.19(f)(1)(iii) provides 
generally that if the Closing Disclosure is not provided in person, the 
consumer is considered to have received the disclosures three business 
days after they are delivered or placed in the mail. Comment 
19(f)(1)(iii)-1 also explains that the days are counted from the date 
on which the disclosures are placed in the mail. See also comment 
19(f)(1)(ii)-2. Some commenters requested clarification regarding 
transactions involving multiple consumers. Final Sec.  1026.17 sets 
forth the applicable requirements for such transactions and clarifies 
that the Closing Disclosure need only be given to one of the primary 
obligors, unless the transaction is subject to the right of rescission, 
in which case all consumers with the right to rescind must receive the 
closing disclosures. See section-by-section analysis of Sec.  
1026.17(d).
    Final provisions. Accordingly, final Sec.  1026.19(f)(1)(iii) 
provides that, if any disclosures required under Sec.  1026.19(f)(1)(i) 
are not provided to the consumer in person, the consumer is considered 
to have received the disclosures three business days after they are 
delivered or placed in the mail. The heading of final Sec.  
1026.19(f)(1)(iii) has been modified to refer to ``Receipt of 
disclosures,'' which the Bureau believes is clearer than the proposed 
heading that would have referred to ``Delivery.'' As discussed in the 
section-by-section analysis of Sec.  1026.19(f)(1)(ii)(A), the final 
rule adopts the specific definition of business day applicable to Sec.  
1026.19(f)(1)(iii) for purposes of the delivery requirements of the 
Closing Disclosure.
    Comment 19(f)(1)(iii)-1 restates the requirement of Sec.  
1026.19(f)(1)(iii) and contains language similar to language in current 
comment 19(a)(2)(ii)-3, clarifying that, if the creditor delivers the 
disclosures under Sec.  1026.19(f)(1)(iii) to the consumer in person, 
consummation may occur any time on the third business day following 
delivery. Comment 19(f)(1)(iii)-1 also clarifies that, if the creditor 
provides the disclosures by mail, the consumer is considered to have 
received them three business days after they are placed in the mail, 
for purposes of determining when the three-business-day waiting period 
required under Sec.  1026.19(f)(1)(ii)(A) begins. For consistency with 
comment 19(e)(1)(iv)-1, comment 19(f)(1)(iii)-1 also explains that the 
creditor may, alternatively, rely on evidence that the consumer 
received the Closing Disclosure earlier than three business days after 
mailing. The comment also includes a cross-reference to comment 
19(e)(1)(iv)-1 for an example in which the creditor sends disclosures 
by overnight mail.
    Comment 19(f)(1)(iii)-2 also has been modified to conform to final 
Sec.  1026.19(f)(1)(iii) and contains a sentence substantially similar 
to the last sentence in current comment 19(a)(2)(ii)-3, clarifying that 
creditors that use electronic mail or a courier other than the United 
States Postal Service also may follow the approach for disclosures 
provided by mail described in comment 19(f)(1)(iii)-1. This language 
replaces proposed language that would have explained that the three-
business-day presumption applies to methods of electronic delivery and 
that would have provided an illustrative example and an explanation 
that the creditor could demonstrate compliance by providing evidence 
that the consumer received an emailed disclosure earlier. Thus, if a 
creditor sends a disclosure required under Sec.  1026.19(f) via email 
on Monday, pursuant to Sec.  1026.19(f)(1)(iii) the consumer is 
considered to have received the disclosure on Thursday, three business 
days later. For consistency with comment 19(e)(1)(iv)-2, the comment 
also explains that the creditor may, alternatively, rely on evidence 
that the consumer received the emailed disclosures earlier than three 
business days. Comment 19(f)(1)(iii)-2 includes a cross-reference to 
comment 19(e)(1)(iv)-2 for an example in which the creditor emails 
disclosures and receives an acknowledgment from the consumer on the 
same day. Comment 19(f)(1)(iii)-2 adopts substantially all of the 
language in proposed comment 19(f)(1)(iii)-2 regarding a creditor's use 
of electronic delivery methods, with a revised reference to Sec.  
1026.38(t)(3)(iii) instead of Sec.  1026.17(a)(1) to reflect the 
requirements applicable to the Closing Disclosure.
    The final delivery provision under Sec.  1026.19(f)(1)(iii) and 
comments 19(f)(1)(iii)-1 and -2 are consistent with section 105(a) of 
TILA. Specifically, the rule and commentary will help consumers avoid 
the uninformed use of credit by ensuring that consumers receive 
disclosures of the actual terms and costs associated with the mortgage 
loan transaction early enough that consumers have sufficient time to 
become fully informed as to the cost of credit. The final rule and 
commentary are also authorized under section 19(a) of RESPA because 
they will ensure more effective advance disclosure of settlement costs 
by requiring creditors to make sure that the disclosures are delivered 
to the consumer three business days before consummation. In addition, 
Sec.  1026.19(f)(1)(iii) and comments 19(f)(1)(iii)-1 and -2 are 
consistent with section 1405(b) of the Dodd-Frank Act because the rule 
will improve consumer awareness and understanding of the mortgage loan 
transaction by ensuring that disclosures reflecting all of the terms 
and costs associated with their transactions are delivered to the 
consumer three business days in advance of consummation.
19(f)(1)(iv) Consumer's Waiver of Waiting Period Before Consummation
    TILA and RESPA set forth different waiver provisions applicable to 
the final disclosures. Section 128(b)(2)(F) of TILA provides that the 
consumer may waive or modify the timing requirements for disclosures to 
expedite consummation of a transaction, if the consumer determines that 
the extension of credit is needed to meet a bona fide personal 
financial emergency. 15 U.S.C. 1638(b)(2)(F). Section 128(b)(2)(F) 
further provides that: (1) the term ``bona fide personal financial 
emergency'' may be further defined in regulations issued by the Bureau; 
(2) the consumer must provide the creditor with a dated, written 
statement describing the emergency and specifically waiving or 
modifying the timing requirements, which bears the signature of all 
consumers entitled to receive the disclosures; and (3) the creditor 
must provide, at or before the time of waiver or modification, the 
final disclosures. 15 U.S.C. 1638(b)(2)(F). This provision is 
implemented in current Sec.  1026.19(a)(3) of Regulation Z.
    Neither RESPA nor Regulation X contains a similar provision for 
emergencies. Instead, RESPA section 4 provides the Bureau authority to 
issue regulations under which consumers may waive their rights to 
receive the RESPA settlement statement at or before settlement. 
Regulation X provides that the settlement agent shall deliver the 
completed RESPA settlement statement

[[Page 79857]]

at or before the settlement, unless the borrower waives the right to 
delivery of the completed RESPA settlement statement. If the borrower 
exercises the waiver, the completed RESPA settlement statement must be 
mailed or delivered as soon as practicable after settlement. See 12 CFR 
1024.10(b)(c).
    The Bureau explained in the proposal that, although waivers based 
on a bona fide personal financial emergency are rare, the waiver 
provision serves an important purpose. Specifically, consumers should 
be able to waive the protection afforded by the waiting period if, in 
the face of a financial emergency, the waiting period does more harm 
than good. Accordingly, the Bureau proposed Sec.  1026.19(f)(1)(iv), 
which would have allowed a consumer to waive the three-business-day 
waiting period in the event of a bona fide personal financial 
emergency. The provision would have required that the consumer have a 
bona fide personal financial emergency that necessitates consummating 
the credit transaction before the end of the waiting period, and that 
whether these conditions are met is determined by the facts surrounding 
individual situations. Further, each consumer who is primarily liable 
on the legal obligation would have been required to sign the written 
statement for the waiver to be effective.
    Proposed comment 19(f)(1)(iv)-1 would have stated that, a consumer 
may modify or waive the right to the three-business-day waiting period 
required by Sec.  1026.19(f)(1)(ii) only after the creditor makes the 
disclosures required by Sec.  1026.19(f)(1)(i). This comment was 
modeled after comment 19(a)(3)-1, which was based on the text in TILA, 
and is consistent with commentary on waiving the rescission period and 
the pre-consummation waiting period required for certain high-cost 
mortgage transactions. The comment would have set forth one example: 
the imminent sale of the consumer's home at foreclosure, where the 
foreclosure sale will proceed unless loan proceeds are made available 
to the consumer during the waiting period, is one example of a bona 
fide personal financial emergency. The Bureau sought comment on the 
nature of waivers based on bona fide personal financial emergencies and 
whether the bona fide personal financial emergency exception is needed 
more in some contexts than in others (e.g., in refinance transactions 
or purchase money transactions).
Comments
    Consumer advocates and industry commenters differed in their views 
on the waiver proposal. Two consumer advocacy groups submitting a joint 
comment noted that the bona fide personal financial emergency waiver 
would protect consumers sufficiently from serious harm caused by a 
delayed closing. While they noted that consumers may be inconvenienced 
by closing delays, they stated that a waiver should not be available 
for mere inconveniences, and that a narrow waiver provision would 
provide industry an incentive to avoid such inconveniences without 
risking the potential that a flexible waiver provision could be abused.
    By contrast, many industry comments expressed the view that the 
proposed waiver provision was inadequate. These commenters believed the 
bona fide personal financial emergency waiver was too restrictive to 
account for the variety of reasons a consumer may wish to waive the 
timing provisions of the Closing Disclosure. Creditors noted that they 
are already reluctant to accept bona fide personal financial emergency 
waivers under the current rescission rules because the lack of examples 
could subject them to possible TILA liability. A trade association 
representing banks explained that, due to TILA liability, creditors are 
often reluctant to honor a waiver where a borrower's attested 
circumstances do not rise to the level of a clear emergency but instead 
appear to be inconveniences.
    Some industry commenters, including a title insurance company and a 
professional association representing attorneys, opposed a rule that 
relied on a waiver because of the potential for consumer abuse inherent 
in a waiver and the reputational and legal risk incurred by settlement 
agents who may need to consider whether to accept a waiver. Commenters 
explained that consumers likely would feel forced into signing a waiver 
on most closings that would undermine the purpose of the three-
business-day period. Some settlement agent commenters noted the 
potential for consumer abuse inherent in waiver mechanisms, but they 
believed the Bureau nonetheless could craft a waiver provision to deal 
with this risk.
    Commenters critical of the proposed waiver provision generally 
recommended several approaches to broaden the waiver provision, 
including expanding the bona fide personal financial emergency 
provision to cover additional ``emergencies,'' permitting a waiver for 
``non-emergency'' circumstances, and permitting the consumer and the 
seller to jointly sign a waiver in the event of a closing being 
necessary to facilitate a coinciding settlement. One large bank stated 
that a flexible waiver would be necessary even if the Bureau expanded 
exemptions in the final rule because situations necessitating a waiver 
would arise that fall outside of the exemptions. The commenter stressed 
the consumers should be free to make their own decisions about whether 
to waive the timing requirements in the rule.
    Commenters, including a GSE, asked that the Bureau consider a 
variety of examples that would either constitute a bona fide personal 
financial emergency or justify some other more flexible waiver, 
including the following: the consumer may miss a mandatory military 
service deadline; timely receipt of the Closing Disclosure would be 
impracticable because the consumer is traveling; the consumer expends 
financial resources to secure emergency housing or make other 
logistical arrangements; the consumer needs timely access to funds to 
satisfy a legal judgment or other legal arrangement, for an emergency 
medical procedure, or to repair a heating system in the winter; the 
consumer loses the opportunity to purchase a home because a sale 
contract expires; the consumer faces financial costs or economic 
hardship, such as the expiration of an interest rate lock, additional 
interest rate lock extension fees, additional prorated taxes, or higher 
interest payments on an existing loan in the case of refinancing; or a 
delay will affect the seller, such as by delaying a separate coinciding 
closing.
    Some commenters suggested that a more flexible waiver should be 
available in particular circumstances. A large bank, a title insurance 
company, and settlement agent commenters recommended that a flexible 
waiver be available to consumers where the rule would trigger 
additional redisclosure waiting periods so the consumer could avoid the 
costs associated with a closing delay, such as the loss of a rate lock 
or penalties associated with a breach of a purchase agreement. A trade 
association representing banks and financial companies believed that a 
more flexible waiver should be permitted when a consumer is receiving a 
mortgage loan that meets the criteria of a ``qualified mortgage'' under 
the Bureau's rules. Several commenters requested that a flexible waiver 
be available for transactions subject to the three-business-day right 
to rescind under Sec.  1026.23. A trade association representing credit 
unions and a large bank suggested non-cash-out and term-reduction 
refinancings presented less consumer risk and that consumers should be 
able to waive the rule's timing

[[Page 79858]]

requirements for such transactions. A credit union commenter stated 
that the waiver provision applicable to the Closing Disclosure should 
be consistent with the waiver provision applicable to the Loan 
Estimate.
    A large bank believed creditors should be permitted to establish 
processes and controls around the issuance of waivers, while a 
settlement agent and a credit union commenter recommended that the 
Bureau develop disclaimer language for a waiver to mitigate the risk of 
abuse, and a mortgage broker commenter believed consumers should be 
able to acknowledge at closing that they have waived the rule's timing 
requirements. A trade association representing various mortgage 
professionals believed the risk of abuse should be addressed through 
enforcement rather than restrictive regulations.
    Several commenters requested that the Bureau provide clarification 
on the mechanics for issuing a waiver. A law firm commenter requested 
that the final rule clarify how a waiver is obtained and what is 
required for approval. Various settlement agent commenters and a title 
insurance company commenter indicated that the seller should be able to 
exercise a waiver, while a trade association representing settlement 
agents and a community bank recommended that consumers and sellers 
should be required to execute a waiver to ensure that all parties can 
consider the effects of and necessity for a waiver.
Final Rule
    The final rule adopts final Sec.  1026.19(f)(1)(iv) substantially 
as proposed, with technical revisions discussed further below. The 
Bureau believes the bona fide personal financial emergency provision is 
the appropriate waiver mechanism for the Closing Disclosure, rather 
than the broader waiver currently provided for under Regulation X Sec.  
1024.10(c) with respect to the RESPA settlement statement. There is 
significant consumer interest in ensuring consumers receive the Closing 
Disclosure at least three business days before consummation, given the 
complexity and significance of mortgage transactions. Final TILA 
disclosures provided three business days prior to consummation under 
the amendments made to TILA by MDIA are already subject to the bona 
fide personal financial emergency waiver. This waiver provision will 
ensure that consumers only forego their ability to review the Closing 
Disclosures when they are presented with a financial emergency. In 
addition, the Bureau believes that implementing TILA's waiver provision 
is necessary to implement the delivery requirements for the integrated 
disclosures under MDIA and the Dodd-Frank Act.
    The Bureau believes the bona fide personal financial emergency 
waiver should apply to all transactions subject to Sec.  1026.19(f), 
and not just those loans subject to MDIA's three-business-day timing 
requirement (i.e., loans for which the previously disclosed APR becomes 
inaccurate). While a more flexible waiver is available under Regulation 
X currently with respect to the RESPA settlement statement, the Closing 
Disclosure is different in nature because it integrates information 
derived from both RESPA and TILA. The final rule requires that the 
Closing Disclosure be provided three business days before consummation 
in all cases, as discussed in the section-by-section analysis of Sec.  
1026.19(f)(1)(ii)(A). As noted in the section-by-section analysis of 
Sec.  1026.19(f)(1)(ii)(A), advance receipt of the Closing Disclosure 
provides important consumer protections, fulfills the goals of the 
integration mandate, and is in line with the goal of improving consumer 
awareness through disclosures for residential mortgage loans under 
sections 129B(e) of TILA and 1405(b) of the Dodd-Frank Act. The Bureau 
is concerned that a broader waiver for transactions not covered by 
MDIA's timing requirements could be abused and undermine these 
benefits. This risk of abuse was noted by consumer advocates and 
several industry commenters, as described above.
    The Bureau recognizes that the limited guidance on what constitutes 
a bona fide personal financial emergency may limit the use of the 
waiver, but the Bureau believes the waiver should be reserved for 
limited use: when a consumer faces a true financial emergency, as 
distinct from an inconvenience. One commenter questioned whether the 
risk of abuse should be addressed through restrictive regulatory 
provisions instead of through enforcement activities. The Bureau 
believes a limited waiver provision in the final rule is an appropriate 
tool for addressing the risk of abuse. Because determining the 
circumstances surrounding the issuance of waivers would involve a fact-
intensive inquiry, it may be difficult to identify whether consumer 
abuse occurred on any particular occasion. The Bureau is concerned that 
a more flexible waiver provision would make it more difficult to detect 
abuse.
    The final rule does not include standardized disclaimer language, 
as suggested by some commenters. The Bureau believes it would be 
impracticable to provide standardized language in light of the unique 
characteristics of each mortgage loan transaction. In addition, the 
Bureau does not believe the risk of abuse would be mitigated by a 
statement provided at closing acknowledging a waiver. To be meaningful, 
the Bureau believes that waivers should be provided with the delivery 
of the Closing Disclosure and should be based on a justification 
contained in a written statement provided by the consumer and signed by 
all consumers primarily liable on the legal obligation. Thus, final 
Sec.  1026.19(f)(1)(iv) prohibits the use of printed forms for this 
purpose.
    A more flexible waiver standard might offer some consumer benefits. 
On balance, however, the Bureau does not believe it is needed to 
protect consumers from unnecessary delays. For example, additional 
delays and inconveniences for some consumers that would have been 
required by the proposed redisclosure requirements could be avoided by 
a more flexible waiver if such a redisclosure requirement were in 
place, as one commenter suggested. However, the Bureau believes the 
final rule's modification to the proposal's requirement for additional 
waiting periods and other disclosure requirements under Sec.  
1026.19(f) substantially reduce the likelihood of costly closing 
delays, thereby reducing the need for a broader waiver.\229\ With 
respect to the circumstances that would trigger redisclosure waiting 
periods under the final rule, the Bureau believes a waiver should be 
available only in the event of a bona fide personal financial 
emergency. The Bureau believes the events triggering a new waiting 
period in Sec.  1026.19(f)(2) have the potential to pose serious, long-
term risk to consumers, and thus waivers in these cases should be 
limited.
---------------------------------------------------------------------------

    \229\ See, e.g., section-by-section analysis of Sec.  
1026.19(f)(1)(i) (best information reasonably available standard), 
(f)(1)(iii) (delivery), (f)(2)(i) and (ii) (revised triggers for the 
redisclosure waiting period), and (f)(2)(iii) (changes for post-
consummation events).
---------------------------------------------------------------------------

    In addition, the Bureau believes reliance on the bona fide personal 
financial emergency waiver provision will facilitate compliance better 
than a two-tiered waiver regime, in which transactions not subject to 
MDIA's timing requirements would be subject to a broader waiver. For 
example, a two-tiered waiver provision applicable to the Closing 
Disclosure would create a different standard for waivers than the 
standard for the Loan Estimate.

[[Page 79859]]

    Regarding comments requesting additional examples of a bona fide 
personal financial emergency, the example in comment 19(f)(1)(iv)-1 is 
illustrative and not exhaustive. For example, situations offered by 
commenters could constitute a bona fide personal financial emergency, 
such as a sudden, unforeseen mandatory military service deadline or an 
unforeseen medical emergency, depending on the facts and circumstances 
of an individual case.
    One commenter stated that a more flexible waiver should be 
permitted when a consumer is receiving a qualified mortgage under the 
Bureau's ability-to-repay rules. While a qualified mortgage may present 
less risk that a consumer lacks an ability to repay the loan, a home 
mortgage transaction is a complex, long-term financial commitment that 
most consumers enter into only infrequently. Thus, the Bureau believes 
consumers receiving qualified mortgages will benefit from time to 
review the Closing Disclosure, to ensure that the loan terms and 
settlement charges offered contain no significant surprises.
    The final rule does not provide for a broader waiver for 
transactions subject to the right of rescission, as requested by 
several commenters. A large bank and a trade association representing 
credit unions stated that non-cash-out and term-reduction refinancings 
presented less consumer risk and that consumers should be able to waive 
the rule's timing requirements for those transactions. The Bureau 
recognizes that a pre-consummation waiting period may, in some cases, 
lengthen the disbursement of funds for transactions subject to the 
right of rescission. However, as explained in the section-by-section 
analysis of Sec.  1026.19(f)(1)(i)(A), the Bureau believes the pre- and 
post-consummation periods serve distinct purposes, and that the risk of 
closing delays for such transactions is limited, particularly in light 
of the modifications made to proposed Sec.  1026.19(f).
    Several commenters requested that the Bureau provide clarification 
on the mechanics for issuing a waiver. A law firm commenter requested 
that the final rule clarify how a waiver is obtained and what is 
required for approval. The requirements for obtaining a waiver are set 
forth in Sec.  1026.19(f)(1)(iv) and are clarified in comment 
19(f)(1)(iv)-1. Pursuant to Sec.  1026.19(f)(1)(v), settlement agents 
providing consumers with the disclosures required under Sec.  
1026.19(f)(1)(i) also would need to comply with Sec.  
1026.19(f)(1)(iv), although creditors would remain responsible for 
compliance, pursuant to Sec.  1026.19(f)(1)(v).
    The final rule does not alter the mechanics for accepting waivers 
by permitting or requiring sellers to execute a waiver along with, or 
independent of, the consumer. Several settlement agents and a title 
insurance company indicated that the seller should be able to exercise 
a waiver; and a trade association representing settlement agents and a 
community bank recommended that consumers and sellers should be 
required to execute a waiver to ensure that all parties can consider 
the effects of and necessity for a waiver. The Bureau recognizes that 
sellers have interests that may be frustrated by the waiting period. 
However, the waiting period is a critical protection to ensure that 
consumers who are about to take on significant long term financial 
commitments have time to review the terms of the commitment and the 
settlement costs without being pressured. The Bureau is concerned that, 
if sellers could waive the waiting period or could jointly exercise the 
waiver, consumers would be rushed into accepting loan terms that they 
do not understand and settlement costs that they did not expect to 
incur.
    Final Sec.  1026.19(f)(1)(iv) and comment 19(f)(1)(iv)-1 are 
adopted substantially as proposed for the reasons stated in the 
proposal and above. The final rule and commentary include technical 
amendments to the first sentence of Sec.  1026.19(f)(1)(iv) to conform 
to revisions regarding the three-business-day redisclosure waiting 
period under Sec.  1026.19(f)(2)(ii). Specifically, proposed Sec.  
1026.19(f)(1)(iv) would have referred to the three-business-day waiting 
period ``for the disclosures required under paragraph (f)(1)(ii)'' of 
Sec.  1026.19. Because a three-business-day period is required under 
Sec.  1026.19(f)(1)(ii)(A) and (f)(2)(ii), the final rule refers to the 
three-business-day waiting periods under Sec.  1026.19(f)(1)(ii)(A) and 
(f)(2)(ii). Comment 19(f)(1)(iv)-1 includes a similar reference to 
Sec.  1026.19(f)(2)(ii). In addition, final Sec.  1026.19(f)(1)(iv) 
includes a technical revision for clarity and consistency with a 
similar provision in Sec.  1026.19(e) (i.e., that a consumer can modify 
or waive ``the'' waiting period, instead of ``a'' waiting period).
    Final Sec.  1026.19(f)(1)(iv) and comment 19(f)(1)(iv)-1 are 
consistent with TILA section 128(b)(2)(F), which provides that the 
consumer may waive or modify the timing requirements for disclosures to 
expedite consummation of a transaction, if the consumer determines that 
the extension of credit is needed to meet a bona fide personal 
financial emergency. Final Sec.  1026.19(f)(1)(iv) and comment 
19(f)(1)(iv)-1 are adopted pursuant to the Bureau's legal authority 
under sections 105(a) of TILA, 19(a) of RESPA, 1032(a) of the Dodd-
Frank Act, and, for residential mortgage transactions, sections 129B(e) 
of TILA and 1405(b) of the Dodd-Frank Act. The Bureau has considered 
the purposes for which it may exercise its authority under section 
105(a) of TILA and, based on that review, believes that final rule and 
commentary are appropriate. The final rule and commentary will help 
consumers avoid the uninformed use of credit by ensuring that consumers 
receive disclosures of the actual terms and costs associated with the 
mortgage loan transaction early enough that consumers have sufficient 
time to become fully informed as to the cost of their credit, subject 
to a limited waiver. The final rule and commentary are consistent with 
section 129B(e) of TILA because failing to provide borrowers with 
enough time to become fully informed of the actual terms and costs of 
the transaction is not in the interest of the borrower, except where 
the borrower determines otherwise if necessary to meet a bona fide 
personal financial emergency.
    The Bureau also has considered the purposes for which it may 
exercise its authority under section 19(a) of RESPA and, based on that 
review, believes that the final rule and commentary are appropriate. 
The final rule and commentary will ensure more effective advance 
disclosure of settlement costs by requiring creditors to disclose the 
actual settlement costs associated with the transaction three business 
days before consummation, subject to a limited waiver provision.
    The final rule and commentary are consistent with Dodd-Frank Act 
section 1032(a) because the features of mortgage loan transactions and 
settlement services will be more fully, accurately, and effectively 
disclosed to consumer in a manner that permits consumers to understand 
the costs, benefits, and risks associated with the mortgage loan and 
settlement services if consumers receive the disclosures reflecting the 
terms and costs associated with their transactions three business days 
before consummation, unless they determine to waive or modify these 
timing requirements if necessary to meet a bona fide personal financial 
emergency.
    In addition, the Bureau has considered the purposes for which it 
may exercise its authority under section 1405(b) of the Dodd-Frank Act 
and, based on that review, believes that the final rule and commentary 
are

[[Page 79860]]

appropriate. The final rule and commentary will improve consumer 
awareness and understanding of the mortgage loan transaction by 
ensuring that consumers receive the disclosures reflecting the terms 
and costs associated with their transactions three business days in 
advance of consummation, subject to a limited waiver. The final rule 
and commentary also will be in the interest of consumers and in the 
public interest because they may eliminate the opportunity for bad 
actors to surprise consumers with unexpected costs at the closing 
table, when consumers are less able to question such costs, unless 
consumers determine to waive or modify these timing requirements if 
necessary to meet a bona fide personal financial emergency.
19(f)(1)(v) Settlement Agent
    TILA and RESPA impose requirements to provide disclosures on 
different parties. TILA and Regulation Z require that creditors provide 
the TILA disclosures, but neither TILA nor Regulation Z imposes 
disclosure requirements on settlement agents. In contrast, the RESPA 
settlement statement requirement generally applies to settlement 
agents, as implemented in Regulation X Sec.  1024.10. Section 1032(f) 
of the Dodd-Frank Act requires the Bureau to propose for public comment 
rules that combine the disclosures required under TILA and sections 4 
and 5 of RESPA. Dodd-Frank Act sections 1098 and 1100A amended TILA and 
RESPA to mandate that the Bureau integrate the disclosure requirements 
under TILA and RESPA, but Congress did not reconcile the division of 
responsibilities between creditor and settlement agent in TILA and 
RESPA.
    As recognized in the proposal, persons who conduct settlements, 
such as settlement agents and closing attorneys, play a valuable role 
in the real estate settlement process. Settlement agents may be able to 
assist consumers with issues that arise during a real estate settlement 
perhaps even more effectively than creditors. However, the Bureau 
explained in the proposal that it was concerned that settlement agents 
may not be able to fulfill the obligations imposed by TILA. The Bureau 
also expressed concern that, if the responsibility to provide the 
disclosures were divided, consumers would receive duplicative, 
inaccurate, or unreliable disclosures. The Bureau explained that this 
result would be contrary to the TILA-RESPA integration mandate.
    Accordingly, the Bureau proposed two alternative approaches to the 
responsibility for providing the Closing Disclosure. Alternative 1 
would have made the creditor solely responsible for the provision of 
the disclosures required by Sec.  1026.19(f). Alternative 2 would have 
permitted a settlement agent to provide the disclosures required under 
Sec.  1026.19(f)(1)(i), provided the settlement agent complies with all 
requirements of Sec.  1026.19(f) as if it were the creditor. 
Alternative 2 would have required the creditor and settlement agent to 
agree on a division of responsibilities regarding the delivery of the 
disclosures. To implement alternative 2, the Bureau proposed Sec.  
1026.19(f)(1)(v), which would have provided that a settlement agent may 
provide a consumer with the disclosures required under Sec.  
1026.19(f)(1)(i), provided the settlement agent complies with all 
requirements of Sec.  1026.19(f) as if it were the creditor. The Bureau 
proposed alternative 2 pursuant to its authority under sections 105(a) 
of TILA, 19(a) of RESPA, and 1405(b) of the Dodd-Frank Act.
    Proposed Sec.  1026.19(f)(1)(v) would have required the creditor to 
ensure that the disclosures are provided in accordance with the 
requirements of Sec.  1026.19(f). Accordingly, alternative 2 would not 
have relieved the creditor of its responsibility under Sec.  
1026.19(f). Thus, the creditor would have remained responsible for the 
disclosures provided under Sec.  1026.19(f). See proposed comment 
19(f)(1)(v)-3. Disclosures provided by a settlement agent in accordance 
with the requirements of Sec.  1026.19(f) would have satisfied the 
creditor's obligation under Sec.  1026.19(f)(1)(i).
    Proposed comment 19(f)(1)(v)-1 would have clarified that a 
settlement agent may provide the disclosures required under Sec.  
1026.19(f)(1)(i) instead of the creditor. By assuming this 
responsibility, the settlement agent would become responsible for 
complying with all of the relevant requirements as if it were the 
creditor, meaning that ``settlement agent'' should be read in the place 
of ``creditor'' for all the relevant provisions of Sec.  1026.19(f), 
except where the context indicates otherwise. The commentary would have 
clarified that the creditor and settlement agent must effectively 
communicate to ensure timely and accurate compliance with the 
requirements of Sec.  1026.19(f)(1)(v).
    Proposed comment 19(f)(1)(v)-2 would have clarified that if a 
settlement agent issues any disclosure under Sec.  1026.19(f), the 
settlement agent must comply with the requirements of Sec.  1026.19(f). 
This proposed alternative comment also would have clarified that the 
settlement agent may assume the responsibility to provide some or all 
of the disclosures required by Sec.  1026.19(f), provided that the 
consumer receives one single disclosure form containing all of the 
information required to be disclosed pursuant to Sec.  
1026.19(f)(1)(i), in accordance with the other requirements in Sec.  
1026.19(f), such as requirements related to timing and delivery. The 
comment also would have included illustrative examples.
    Proposed comment 19(f)(1)(v)-3 would have explained that if a 
settlement agent provides disclosures required under Sec.  1026.19(f) 
in the creditor's place, the creditor remains responsible under Sec.  
1026.19(f) for ensuring that the requirements of Sec.  1026.19(f) have 
been satisfied. The comment would have provided an example illustrating 
that the creditor does not comply with Sec.  1026.19(f) if the 
settlement agent does not provide the disclosures required under Sec.  
1026.19(f)(1)(i), or if the consumer receives the disclosures later 
than three business days before consummation.
    The proposed comment also would have clarified that the creditor 
does not satisfy the requirements of Sec.  1026.19(f) if it provides 
duplicative disclosures, and clarified that a creditor does not satisfy 
its obligation by issuing disclosures required under Sec.  1026.19(f) 
that mirror ones already issued by the settlement agent for the purpose 
of demonstrating that the consumer received timely disclosures. The 
comment would have further clarified that the creditor is expected to 
maintain communication with the settlement agent to ensure that the 
settlement agent is acting in place of the creditor, and that 
disclosures provided by a settlement agent in accordance with Sec.  
1026.19(f)(1)(v) satisfy the creditor's obligation under Sec.  
1026.19(f)(1)(i).
    Proposed comment 19(f)(1)(v)-4 would have clarified that the 
settlement agent may assume the responsibility to provide some or all 
of the disclosures required by Sec.  1026.19(f). The comment would have 
further clarified that the consumer must receive one single disclosure 
form containing all of the information required to be disclosed 
pursuant to Sec.  1026.19(f)(1)(i), in accordance with the other 
requirements in Sec.  1026.19(f), such as requirements related to 
timing and delivery. The proposed comment also would have included 
illustrative examples.
    The proposed rule was designed to carry out TILA's goal of 
promoting the informed use of credit. The Bureau explained that the 
involvement of a settlement agent could result in increased consumer 
awareness and more meaningful disclosure of credit

[[Page 79861]]

terms, consistent with section 105(a) of TILA. The proposed regulation 
also was structured to achieve RESPA's purposes by resulting in more 
effective advance disclosure of settlement costs, consistent with 
section 19(a) of RESPA. The Bureau further stated that the proposed 
regulation also could improve consumer understanding and awareness of 
the transaction by permitting the Closing Disclosure to be completed 
and provided by settlement agents, who often assist consumers during a 
real estate closing, which is in the interest of consumers and in the 
public interest, consistent with Dodd-Frank Act section 1405(b). The 
Bureau invited comment on other methods of dividing responsibility 
between creditors and settlement service providers, provided that such 
other methods ensure that consumers are provided with prompt, accurate, 
and reliable disclosures.
Comments
    Overview. The Bureau received extensive public comment and ex parte 
submissions from across various sectors of the real estate and mortgage 
lending industries regarding responsibility for providing the Closing 
Disclosure. Commenters provided general feedback on the relative merits 
of creditor and settlement agent involvement in preparing the Closing 
Disclosure and more specific feedback on alternatives 1 and 2, and 
other alternatives for dividing responsibility. In addition, commenters 
provided feedback on the creditor's responsibility for ensuring 
compliance with Sec.  1026.19(f) (which would have been required under 
both alternatives 1 and 2) and State law issues. Commenters also 
requested clarification on certain issues.
    In general, commenters supporting creditor preparation of the 
Closing Disclosure observed that creditors would be better able to make 
loan-related disclosures and ensure compliance. A professional 
association representing attorneys, a large bank, and escrow agent 
commenters explained that creditors are in a better position to provide 
and explain loan-related disclosures. A large bank commenter also 
explained that creditors would be better positioned to facilitate 
consumer contact and ensure timely delivery of the disclosures three 
business days before consummation. A large bank commenter explained 
that settlement agents likely would be unable to complete the Closing 
Disclosure if the forms were in ``dynamic'' rather than ``static'' 
form. A community bank commenter explained that allowing a party other 
than the creditor to generate the Closing Disclosure would increase 
costs and delay the closing process, and thereby inconvenience and 
increase costs to consumers. In addition, a commenter from a company 
that provides escrow and title software argued that the Closing 
Disclosure should be provided by the creditor because the complexity of 
disclosures would make coordination difficult.
    On the other hand, many settlement agent commenters questioned 
whether the creditor would act in the best interests of the consumer or 
other parties, such as sellers. A trade association representing 
settlement agents and the title insurance industry and various law firm 
commenters suggested that, without the role of an independent review or 
preparation of the Closing Disclosure by the settlement agent, 
creditors could misstate the charges of third parties, and that third 
parties are unable to correct such mistakes. The trade association 
commenter further explained that creditors and affiliated service 
providers would share the costs of creditor compliance risk, which 
would increase overall risk to creditor-affiliated businesses. Some 
settlement agent commenters pointed out that settlement agent 
preparation of the Closing Disclosure would not pose significant 
consumer risk because revisions to settlement costs are typically 
minor, whereas revisions to loan costs can impose significant costs to 
consumers.
    Commenters also were concerned that creditor preparation of the 
Closing Disclosure would lead to conflicts between settlement agents 
and creditors, such as those arising from potentially conflicting 
closing instructions, or conflicts over the underwriting of title 
insurance if a creditor-prepared Closing Disclosure contained errors. 
Other settlement agent commenters were concerned that they may be 
unable to understand a creditor-prepared Closing Disclosure or explain 
it to other parties at settlement. Additional comments on creditor 
preparation of the Closing Disclosure are discussed in greater detail 
below.
    In general, many commenters emphasized that settlement agents have 
unique expertise in conducting settlements and preparing settlement 
cost figures, and that preserving their role in the transaction would 
be critical to ensuring the efficient operation of closings. Various 
law firm commenters, trade associations representing attorneys, 
individual settlement agents, real estate agents, and mortgage brokers 
explained that only licensed real estate attorneys or settlement agents 
should handle closings because they are subject to State regulation and 
have expertise in local customs and disbursement activities. Commenters 
representing the views of law firms, credit unions, settlement agents, 
trade associations representing settlement agents and the title 
insurance industry, real estate agents, and title insurance companies 
explained that because of settlement agents' expertise in conducting 
closings and their coordination of multiple parties to the transaction, 
their preparation of the Closing Disclosure would be more efficient 
than creditor preparation. For example, settlement agent commenters 
expressed concern that closings would be delayed and costs would 
increase if settlement agents had to coordinate with creditors when 
handling last-minute changes to the Closing Disclosure at settlement.
    Many commenters, including settlement agents, attorneys, law firms, 
title insurance companies, real estate brokers, and trade associations 
representing settlement agents and the title insurance industry 
stressed that the settlement agent serves an important consumer 
protection function by acting as a neutral, independent third party who 
verifies the creditor's figures and has the best interests of the 
consumer and all other parties in mind.\230\ Commenters were concerned 
that creditor preparation of the Closing Disclosure would be a 
conflict-of-interest. For example, one trade association representing 
settlement agents and various law firm commenters raised the 
possibility that, without the role of an independent review or 
preparation of the Closing Disclosure by a settlement agent, creditors 
could misstate fees of third-party settlement service providers.
---------------------------------------------------------------------------

    \230\ As discussed below in the section-by-section analysis of 
Sec.  1026.19(f)(4), many settlement agent commenters also raised 
concerns about a creditor's involvement in preparing the seller's 
portion of the Closing Disclosure. Commenters were concerned that 
sellers may not want to provide sensitive information to creditors 
that owe them no duty.
---------------------------------------------------------------------------

    Other settlement agents, however, were concerned that making 
settlement agents responsible for the Closing Disclosure would conflict 
with the settlement agent's role as a neutral third party whose duty is 
limited to following closing instructions from the creditor and other 
parties to the real estate transaction. Additional comments on 
settlement agent preparation of the Closing Disclosure are discussed in 
greater detail below.
    Support for alternative 1. Several non-depository lenders, a 
mortgage compliance company, and an individual consumer explained that 
alternative 1 would relieve creditors of TILA liability for the actions 
of settlement agents;

[[Page 79862]]

whereas, under alternative 2, creditors would have an obligation to 
supervise settlement agents but still assume all legal liability. A 
non-depository lender explained that, pursuant to CFPB Bulletin 2012-
03, creditors already are obligated to supervise settlement agents as 
``service providers.'' \231\ The mortgage compliance company commenter 
asserted that, if settlement agents were allowed to deliver the Closing 
Disclosure, the final rule would have to create a safe harbor for the 
creditor for the settlement agent's failure to satisfy regulatory 
requirements.
---------------------------------------------------------------------------

    \231\ See U.S. Consumer Fin. Prot. Bureau, Bulletin 2012-03 
(2012), available at http://files.consumerfinance.gov/f/201204_cfpb_bulletin_service-providers.pdf.
---------------------------------------------------------------------------

    Some settlement agent and escrow agent commenters perceived 
benefits to creditor responsibility for the Closing Disclosure under 
alternative 1. Commenters explained that alternative 1 would encourage 
creditors to take more responsibility for the efficient operation of 
closings, reduce creditor-caused delays, and ensure consumers receive 
more accurate information about closing costs. Another settlement agent 
commenter believed that ensuring creditor responsibility would improve 
regulators' ability to supervise for compliance. One commenter pointed 
out that creditors are already familiar with evaluating settlement 
costs because they often ``approve'' the RESPA settlement statement 
before it is provided to borrowers. In addition, some settlement agents 
explained that creditors are in the best position to ensure the 
accuracy of the Closing Disclosure because they will be in control of 
the Loan Estimate and are responsible for complying with the accuracy 
requirements in Sec.  1026.19(e)(3), and because they are familiar with 
settlement costs, consistent with the current practice of approving the 
RESPA settlement statement.
    In addition to ensuring creditor accountability, commenters 
representing settlement agents, escrow agents, and related trade 
associations explained that alternative 1 would relieve them of 
liability for the Closing Disclosure and would allow them to play a 
more traditional role related to conducting closings.\232\ In 
particular, a trade association representing escrow agents supported 
alternative 1, because it believed alternative 2 could impose new 
creditor duties on settlement agents, which would be in conflict with 
the settlement agent's traditional role as a neutral third party. An 
escrow agent commenter explained that settlement agents do not have 
expertise in loan products and should not share in liability that 
applies to creditors. The commenter further explained that settlement 
agent responsibility for the Closing Disclosure would impose burdens on 
settlement agents because it would require that they coordinate with 
creditors to develop an accurate disclosure.
---------------------------------------------------------------------------

    \232\ However, a trade association representing settlement 
agents explained that it would support alternative 1 only if the 
Bureau could protect independent settlement agents from creditor 
consolidation that they believed could result from alternative 1. 
See the discussion of commenters supporting alternative 2.
---------------------------------------------------------------------------

    Concerns with alternative 1. Many commenters representing 
settlement agents, title insurance companies, real estate agents, and 
trade associations representing attorneys, settlement agents, and the 
title insurance industry were opposed to alternative 1 because they 
were concerned it would eliminate or significantly reduce the 
settlement agent's role, result in inefficient closings, and increase 
risk to consumers and the market.
    Settlement agent and title insurance industry commenters were 
concerned that alternative 1 would reduce the availability of 
settlement agents, which would require consumers in some parts of the 
country would have to travel long distances or use mobile notaries 
because local settlement agents would no longer be available. Many 
settlement agent commenters also maintained that their ability to 
prepare the Closing Disclosure serves an important consumer protection 
function and that alternative 1 would present a conflict-of-interest if 
the creditor prepared the Closing Disclosure. Numerous settlement agent 
commenters, particularly attorneys and related trade associations, 
maintained that creditor preparation would conflict with various State 
laws regulating the conduct of settlements and the practice of law and 
could place attorneys who conduct settlements in the conflicted 
position of supervising a creditor's unauthorized practice of law.
    Various commenters representing settlement agents, a real estate 
agent, title insurance companies, attorneys, credit unions, community 
banks, and various trade associations representing creditors, 
settlement agents, and the title insurance industry were concerned that 
alternative 1 would increase coordination costs for industry because it 
would shift settlement activities to creditors, introduce unnecessary 
complexity to the settlement process, delay the underwriting of title 
insurance, delay closings, and increase costs and risk to consumers. 
These commenters emphasized that settlement agents have unique 
expertise in local customs and procedures, are subject to State 
regulation, and are in the best position to prepare settlement cost 
disclosures because of their role in preparing the disbursement 
statement at closings. Community bank and credit union commenters were 
concerned that alternative 1 would require creditors to assume more 
responsibility for settlement activities and require that they hire 
staff attorneys licensed to practice in multiple jurisdictions, which 
would increase costs that would be passed on to consumers. Attorneys 
and trade associations representing attorneys shared these concerns. 
Commenters also explained that, while settlement agents likely would 
continue to provide collection and disbursement activities even under 
alternative 1, creditors would be required to document those activities 
on the Closing Disclosure. A settlement agent commenter stressed that 
settlement agents would be burdened even if a creditor were solely 
responsible for the Closing Disclosure because the settlement agent 
would likely be the party responsible for answering consumers' 
questions about the Closing Disclosure, but that they would have 
difficulty explaining a creditor-prepared form.
    Finally, commenters noted that it was difficult to analyze the 
potential impact alternative 1 would have on the market. Commenters 
asserted that the Bureau did not provide sufficient analysis on the 
impact of alternative 1. A trade association representing the 
settlement agent and title insurance industry stated that the Bureau 
did not provide sufficient guidance about its expectations regarding 
creditor-settlement agent responsibility. A member of Congress stated 
that the Bureau did not analyze the impact of assigning sole 
responsibility to creditors would have on the settlement agent 
industry.
    Support for alternative 2. Alternative 2 generally received broader 
support from industry commenters relative to alternative 1, although 
many commenters requested that the Bureau consider modifying 
alternative 2, as discussed below. Many commenters, including large 
banks, credit unions, community banks, settlement agents, related trade 
associations, and two consumer advocacy groups submitting a joint 
comment explained that alternative 2 most closely reflects current 
industry practice in which the creditor relies on settlement agent 
expertise and efficiency. Some settlement agent commenters noted that 
currently settlement agents must submit RESPA settlement statements to 
the creditor for approval, and that

[[Page 79863]]

alternative 2 reflected this practice. Settlement agent commenters 
emphasized that they are in a better position than creditors to prepare 
the Closing Disclosure because they receive information from third 
parties to the transaction, typically compute charges, such as 
recording and transfer charges, and handle payoffs to ensure marketable 
title is conveyed. A number of real estate agent commenters supported 
alternative 2 because it would provide for more efficient closings when 
an out-of-State creditor is involved. Settlement agents, a trade 
association representing settlement agents, and mortgage brokers also 
expressed support for alternative 2 because it would preserve their 
role in the transaction and mitigate the potential for creditor 
conflicts-of-interest.\233\
---------------------------------------------------------------------------

    \233\ The trade association commenter noted in its comment 
letter that it preferred making creditors responsible for the form. 
However, this commenter explained that it would support alternative 
2 if the Bureau could not protect the settlement agent industry from 
creditor consolidation of the industry as a result of making 
creditors responsible for the form, because of the threat of 
creditor conflict-of-interest during the settlement process.
---------------------------------------------------------------------------

    Commenters also observed that alternative 2 would allow creditors 
and settlement agents flexibility in determining how to divide 
responsibility and selecting the delivery option that best serves 
consumers, which they expected would reduce implementation costs, 
discrepancies on settlement disbursements statements, and impacts on 
small businesses. In particular, credit union commenters explained 
that, in some cases, credit unions may choose to close a loan in-house 
to reduce closing costs, while in other cases, they may choose to have 
a settlement agent complete transactional information. Credit union 
commenters explained that alternative 2 allows creditors to rely on 
settlement agents when needed, unlike alternative 1, which they 
believed would require creditors to hire staff attorneys to perform 
closings in multiple jurisdictions, increasing costs and limiting their 
ability to perform closings nationwide. A trade association 
representing banks and financial companies believed that this 
flexibility in dividing responsibility was sensible in light of 
creditor liability for exceeding tolerances under RESPA and other 
liability under TILA. However, the commenter also noted that the Bureau 
should consider making settlement service providers responsible for the 
accuracy of their information, for exceeding tolerances and otherwise 
for bearing responsibility for their role in the transaction.
    Concerns with alternative 2. Creditor commenters, including large 
banks and community banks, expressed concern that creditors would 
retain ultimate liability for the Closing Disclosure under alternative 
2, notwithstanding settlement agent participation. These commenters 
were concerned about their liability for settlement cost information 
outside of their control. A community bank commenter was concerned that 
a creditor would not be able to manage this risk if consumers shop for 
their own settlement agent. A nonbank lender suggested that alternative 
2 would affect the timeliness of closings and increase the cost of the 
transaction because creditor liability would mean the creditor would 
still need to review the Closing Disclosure even if the settlement 
agent provided the information.
    Settlement agent commenters expressed concern with creditor 
responsibility under alternative 2. Settlement agents were concerned 
that, like alternative 1, alternative 2 would lead to greater creditor 
control of the settlement process, such as by determining the scope of 
settlement agent involvement in the Closing Disclosure. Settlement 
agents also expressed concern that creditors, to manage their liability 
risk, would likely apply rigorous audit procedures to settlement agents 
and would be likely to sue settlement agents for compliance failures. 
Settlement agents also explained that creditors under alternative 2 
would have to hire and train additional staff in the settlement 
process, which would result in higher costs being passed on to 
consumers.
    In addition to concerns with creditor responsibility, some 
settlement agent commenters expressed concern with their own liability 
under alternative 2. In particular, several settlement agent commenters 
expressed opposition to proposed comment 19(f)(1)(v)-1, which would 
have clarified that a settlement agent may provide the disclosures 
instead of the creditor, but by assuming this responsibility, it 
becomes responsible for complying with all of the relevant requirements 
as if it were the creditor. One commenter who served as a panelist on 
the Small Business Review Panel indicated that assuming creditor 
liabilities and responsibilities would require settlement agents to 
increase their fees substantially.
    Commenters representing creditors, settlement agents, and a 
software company explained that, to the extent they must coordinate to 
prepare a Closing Disclosure, creditors and settlement agents would 
have to develop software systems to exchange information between 
creditor and settlement agent systems that do not currently communicate 
with each other. Industry commenters also indicated that such systems 
would have to address the privacy implications of sharing potentially 
sensitive information.
    Commenters representing a large bank, a trade association 
representing banks, settlement agents, attorneys, and a professional 
association representing attorneys indicated that settlement agents 
currently lack systems to generate TILA disclosures and that settlement 
agents may not be able to meet the technology requirements necessary to 
generate a Closing Disclosure or exchange information with creditors 
under alternative 2. A rural bank explained that creditors use hundreds 
and sometimes thousands of different settlement agents who use their 
own loan origination systems with no universal data interface, which 
would make shared responsibility difficult. A software company 
explained that, as a result of this lack of universality, software 
vendors likely would need to integrate different systems, which could 
be expensive and complicated by the lack of meaningful naming 
conventions and a lack of standardized data formats. The commenter 
recommended that the final rule take steps to minimize the need to 
integrate different systems.
    Some settlement agent commenters believed that implementing the 
Closing Disclosure would be a significant expense, would force them to 
raise fees on consumers, and could decrease settlement agent 
productivity and put small practitioners out of business. To reduce 
costs, a number of settlement agent commenters recommended that the 
Bureau mandate a standard Closing Disclosure form, rather than model 
forms. Settlement agent commenters were concerned that use of model 
forms would require settlement agents to communicate with many 
disparate information technology systems, increasing burden.
    One settlement agent commenter explained that the Closing 
Disclosure would impose coordination costs on settlement agents and 
creditors, regardless of how creditors and settlement agents divided 
responsibility. The commenter explained that, if creditors and 
settlement agents work in the same document, they would incur software 
integration costs; if the settlement agent provided information 
separately to the creditor, the creditor would incur costs in 
populating the Closing Disclosure; and, if the creditor assumes 
settlement agent duties,

[[Page 79864]]

settlement agents would face costs in terms of lost business 
opportunities and creditors would face costs in terms of hiring and 
training settlement agents.
    Finally, a member of Congress stated that alternative 2 would 
require increased coordination, explaining that, while creditors and 
settlement agents currently coordinate in the closing process, they 
would need to adjust their procedures for the new forms and timing 
requirements. This commenter explained, however, that it was unclear 
how creditors would choose to coordinate with settlement agents under 
the new liability framework. Further, the commenter stated that, 
although it was clear that the role of settlement agents could change 
significantly under alternative 1, it was unclear which alternative 
would be less burdensome because the Bureau had failed to analyze the 
impact of either alternative 1 or 2. The member of Congress stated that 
the Bureau did not estimate the potential cost of changes that might be 
incurred as a result of alternative 2, and that it was unclear how 
creditors would choose to coordinate with settlement agents.
    Requests for clarification regarding alternative 2. A community 
bank criticized alternative 2 as vague and open-ended, which would 
create confusion for creditors that would ultimately be subject to 
regulatory supervision. A settlement agent commenter requested that the 
Bureau clarify proposed Sec.  1026.19(f)(1)(v), which would have stated 
that the settlement agent may provide a consumer with the disclosures 
required under Sec.  1026.19(f)(1)(i), provided the settlement agent 
complies with all requirements of Sec.  1026.19(f) as if it were the 
creditor. The commenter was concerned that this would impose a new duty 
on settlement agents to take responsibility for the financing of an 
individual's loan. The commenter recommended instead that the final 
rule provide for the delegation of duties between creditors and 
settlement agents.
    A community bank and settlement agent commenters requested 
clarification on whether the settlement agent and creditor can complete 
their respective portions of the Closing Disclosure, combine their 
pages manually as one form or provide it separately from both parties 
to the consumer. Other commenters requested clarification on whether a 
creditor could prepare the Closing Disclosure provided three business 
days before consummation, with the settlement agent preparing any 
revised Closing Disclosures provided at consummation.
    Other recommendations by commenters. Both creditors and settlement 
agents recommended alternatives that would require the Bureau to more 
specifically assign responsibilities with respect to the Closing 
Disclosure. Many settlement agent commenters did not necessarily 
express support for alternative 1 or 2, but instead generally advocated 
for their continued involvement in the settlement process, including 
the preparation of the Closing Disclosure. Trade associations 
representing settlement agents explained that, without further 
clarifying the settlement agent's role, settlement agents would face 
potentially large compliance costs because they would have to 
anticipate compliance with all aspects of the Closing Disclosure. One 
individual settlement agent suggested that the rule require title 
insurance underwriters to establish an effective process for managing 
the compliance risk of the settlement agents.
    A wide variety of commenters representing creditors and various 
trade associations representing credit unions, banks, and community 
banks, settlement agents and the title insurance industry, as well as 
the manufactured housing industry recommended that the Bureau assign 
settlement agents substantive disclosure responsibilities so that 
creditors and settlement agents would prepare information over which 
they have respective control. A wide variety of settlement agent 
commenters requested that the Bureau impose similar requirements on 
creditors. For example, some commenters recommended dividing 
responsibility by the statutory authority requiring the disclosure, by 
page number (e.g., creditors would prepare pages 1, 4, and 5, and 
settlement agents would prepare pages 2 and 3), or by the party that 
assumes responsibility for the Closing Disclosure. A rural bank 
explained that assigning specific disclosure responsibilities would 
reduce coordination costs because settlement agents and creditors 
currently use different software systems, which would make it difficult 
to exchange information.
    A variety of commenters representing settlement agents, community 
banks, credit unions, title insurance companies, and trade associations 
representing settlement agents recommended that settlement agents be 
responsible for the Closing Disclosure. Community banks and credit 
unions expected this would alleviate concern about creditor liability 
for settlement agent conduct. Further, settlement agent commenters 
expected that this would ensure settlement agents remain involved in 
the settlement process and avoid a creditor conflict-of-interest. One 
commenter recommended that the consumer be able to choose whether the 
creditor or settlement agent prepare the Closing Disclosure. One 
settlement agent explained that requiring the settlement agent to 
prepare the Closing Disclosure but requiring the creditor to deliver 
the Closing Disclosure would be appropriate because in many cases the 
loan originator is the consumer's primary point of contact and could 
explain the final figures.
    In addition to suggesting an option for assigning substantive 
disclosure obligations, commenters suggested options for assigning 
procedural duties or other standards, including liability, on creditors 
and settlement agents. Commenters requested that the final rule further 
define the responsibility of creditors and settlement agents to provide 
timely and accurate information. Large banks and trade associations 
representing creditors and attorneys suggested that, in light of 
creditor liability, settlement agents should be responsible for 
providing accurate information to creditors in a timely manner so 
creditors could prepare the Closing Disclosure.\234\ One large bank 
commenter explained that settlement agents would not be able to 
accurately and timely prepare and provide the TILA portions of the 
Closing Disclosure. This bank and another large bank commenter 
explained that settlement agents play an important role in providing 
information about items such as, third-party lender payoff amounts, 
taxes, recording fees and other information currently within purview of 
settlement agents or real estate agents. One large bank commenter 
explained that the lender relies on the settlement agent to provide an 
accurate accounting of fees and charges listed on the closing sheet.
---------------------------------------------------------------------------

    \234\ One commenter also recommended that settlement agents be 
responsible for exceeding the limitations on increases from the 
estimated charges disclosed on the Loan Estimate under Sec.  
1026.19(e)(3).
---------------------------------------------------------------------------

    A settlement agent commenter, a compliance company, credit union 
trade associations, and a community bank commenter recommended that the 
final rule impose liability on whichever party is responsible for 
preparing the Closing Disclosure. One settlement agent commenter 
explained that settlement agents should prepare the Closing Disclosure, 
as they do today, but that the final rule should shift a portion of the 
burden for accuracy of the disclosure to settlement agents. The 
commenter explained that this would

[[Page 79865]]

increase the likelihood that creditors would continue to rely on 
settlement agents because creditors would not carry all of the burden 
for the accuracy of the Closing Disclosure.
    Similarly, settlement agent commenters recommended that the Bureau 
impose requirements on creditors to provide timely and accurate 
information to ensure settlement agents have sufficient time to prepare 
settlement costs on the Closing Disclosure. Settlement agent commenters 
and trade associations representing credit unions recommended that the 
settlement agent should prepare the Closing Disclosure and that the 
creditor should review and approve the form. Settlement agents 
explained that this would alleviate concerns about creditor conflicts-
of-interest, while creditors pointed out that this would alleviate 
creditor liability for settlement agent actions. Trade associations 
representing banks and financial companies requested that the final 
rule address who will provide the Closing Disclosure before and at 
closing, recommending that the creditor should provide if before 
closing (unless the settlement agent agrees to provide it) and the 
settlement agent should provide revised closing disclosure at closing 
because the creditor is not always present at closing.
    Creditor responsibility. A variety of creditors and trade 
associations representing creditors stated that they did not perceive a 
meaningful distinction between alternatives 1 and 2 because the 
creditor would remain liable under either option. Creditors expressed 
concern with this arrangement because provision of the Closing 
Disclosure depends on the cooperation of third parties, namely 
settlement agents. Large banks and a credit union explained that 
creditors do not control or have direct access to certain settlement 
charges and therefore could not guarantee that they will always be 
disclosed in a timely manner. A large bank explained that this is 
particularly the case with respect to information about amounts paid to 
and due from the seller. A large bank and a trade association 
representing banks observed that creditor responsibility for the 
accuracy of settlement costs would be a significant revision to 
existing practice.
    Several commenters, including a non-depository lender, a settlement 
agent, and a trade association representing settlement agents and the 
title insurance industry believed that creditor responsibility for the 
Closing Disclosure would lead to dual closings (one for the real estate 
transaction and one for the mortgage transaction) resulting in a more 
complicated closing process at higher cost to the consumer. A law firm 
commenter and a title insurance agent anticipated that creditor-
controlled closings would result in creditors choosing the cheapest 
closing attorney without regard to quality, increasing risk to the 
title insurance underwriter, thereby increasing title insurance 
premiums, which would be passed on to consumers.
    A wide variety of commenters expressed concern that creditor 
responsibility for the Closing Disclosure would mean that creditors 
would take greater control over the settlement process or turn to 
larger, national settlement firms instead of independent settlement 
agents, which will limit consumer choice and the ability to shop, and 
which could have a negative impact on the availability of local 
settlement agents, particularly in rural areas. Other settlement agent 
commenters were concerned that reliance on national settlement agent 
companies would mean that settlements would lose the benefit of local 
settlement agent expertise. Some settlement agent commenters were 
concerned that creditor responsibility for providing the Closing 
Disclosure would encourage creditors to assume control over title 
insurance matters, become national title insurance companies, contract 
with title insurance companies directly, or impact real estate brokers' 
ability to freely refer clients to settlement agents.
    Settlement agent and attorney commenters, including a national 
professional association representing attorneys, were concerned that 
creditor responsibility for the Closing Disclosure would result in 
risk-shifting between creditors and settlement agents, which they 
argued would not be in the consumer's interest. One settlement agent 
commenter anticipated that creditors would impose third-party vetting 
to ``approve'' settlement agents they work with, which would impose 
indirect costs on settlement agents. This commenter also anticipated 
that creditor responsibility for the Closing Disclosure would result in 
creditors requiring settlement agents to maintain additional liability 
insurance, which would come at a cost to settlement agents.
    Other settlement agent commenters anticipated that creditor 
liability would result in creditors requiring any violation under RESPA 
or TILA to be borne by the settlement agent and that smaller settlement 
agents would not be able to bear this responsibility or be able to 
maintain the type of liability insurance that would be required by 
creditors. A law firm commenter predicted that the cost of title 
insurance premiums would increase to compensate for the lost revenue 
that would result from creditors preparing the Closing Disclosure. This 
commenter also indicated that diminishing the role of title agents 
would mean consumers would lose the protection of title insurance gap 
coverage that is provided by statute or required by the lender when a 
title agent closes the transaction, or that the consumer would no 
longer have the protection of the title insurance underwriter's closing 
protection letter. Many settlement agent commenters advocated for their 
continued involvement in preparing the Closing Disclosure, although a 
large number of settlement agents recommended that settlement agents be 
solely responsible for the Closing Disclosure, or that the Bureau 
further define a substantive division of responsibility.
    By contrast, other commenters explained that creditor 
responsibility for the Closing Disclosure resembled current practice. 
Several agent commenters explained that creditors currently require 
settlement agents to obtain creditor approval for each RESPA settlement 
statement before a transaction closes or funds are disbursed. 
Commenters explained that, by approving the RESPA settlement statement 
and issuing preparation instructions to the settlement agent, the 
creditor already assumes some degree of responsibility for the contents 
of the RESPA settlement statement. Thus, as one commenter explained, 
the proposed rule would not, in practice, shift responsibility from the 
settlement agent company to the creditor and that it would be 
unnecessary for the rule to impose this responsibility on the creditor. 
A community bank commenter also noted that creditors already have 
responsibility for the accuracy of the RESPA settlement statement, but 
requested that settlement agents continue to be involved in preparing 
the Closing Disclosure in the purchase-and-sale context because of the 
additional requirements applicable to the seller. Two consumer advocacy 
group commenters explained that creditor liability under the rule would 
simplify enforcement of the rule and avoid confusion between creditors 
and other parties, and that creditors could protect themselves by 
negotiating indemnification agreements with and supervising settlement 
agents.
    A trade association representing the settlement services industry 
and a community bank commenter explained that, if the final rule makes 
the creditor ultimately responsible for the Closing Disclosure, it 
should provide the

[[Page 79866]]

creditor flexibility to determine how to prepare and provide the 
Closing Disclosure. Commenters explained that, depending on the market, 
the creditor's size and financial resources, some creditors may develop 
a variety of approaches to preparing and providing the Closing 
Disclosure, including relying, in some cases, on an in-house 
capability, and in other cases relying on approved unaffiliated third-
parties or affiliated third-parties. One commenter observed that 
reliance on affiliates may be compromised by the points and fees 
threshold in the Bureau's ability-to-repay rulemaking.
    One large bank commenter requested that the Bureau exclude from the 
creditor's responsibility fees outside of the creditor's control or 
imposed after the creditor issues closing instructions to the 
settlement agent. This commenter requested that the Bureau clarify 
that, in dividing responsibility with a settlement agent, the creditor 
may rely on the documents prepared by the settlement agent, and that if 
additional fees that are not imposed by the creditor or other items are 
not accurately disclosed on the statement, the creditor will not be 
liable for the accuracy of such fees or other items.
    Large banks and many individual settlement agent commenters 
questioned the Bureau's legal authority to alter the existing division 
of responsibility or liability under TILA and RESPA by making the 
creditor responsible for the settlement agent's actions. A trade 
association representing banks and a large bank noted that RESPA 
section 4(b) requires settlement statements to be provided by ``the 
person conducting the settlement'' and that Regulation X requires 
settlement agents to complete the RESPA settlement statement. A large 
bank commenter questioned how assigning TILA liability to the creditor 
would carry out the purposes of RESPA section 4. The commenter was 
concerned that the Bureau would prescribe a division of responsibility 
in which the settlement agent could take part in completing or 
providing the Closing Disclosure but without any regulatory 
consequence. The commenter further requested that the Bureau retain the 
current and respective responsibilities of creditors and settlement 
agents with respect to the Closing Disclosure, in light of the absence 
of a requirement in the Dodd-Frank Act, TILA, or RESPA, that a creditor 
be responsible for the settlement agent's actions in completing or 
providing the Closing Disclosure.
    State law issues. Various commenters, including attorneys, law 
firms, title insurance companies, settlement agents and trade 
associations representing attorneys, settlement agents and the title 
insurance industry expressed concern that requiring creditor 
preparation of the Closing Disclosure would conflict with State 
regulation of closings and the practice of law. Commenters identified 
several provisions of State laws that they stated give consumers an 
absolute right to choose their closing attorneys in residential real 
estate transactions. Commenters also identified provisions of certain 
State laws that they explained require attorneys or other agents to 
conduct closings. They explained creditor preparation of the Closing 
Disclosure could constitute the unauthorized practice of law, and that 
attorney or escrow agent involvement in such a transaction could 
constitute abetting the unauthorized practice of law. One commenter was 
concerned that creditors would prevent consumers from having access to 
an attorney at closings, contrary to State law. One settlement agent 
raised concerns that State law requires settlement agents to ensure a 
closing is conducted in compliance with State law and the rules under 
RESPA, and that creditor preparation of the Closing Disclosure would 
eliminate the settlement agent's ability to perform under State law.
    Requests for clarification. Various individual settlement agents 
and a trade associations representing settlement agents and the title 
insurance industry requested that the Bureau clarify whether the 
Closing Disclosure is a disbursement statement. One trade association 
commenter explained that the Closing Disclosure should not serve as a 
disbursement statement, but that industry should make this 
determination on its own. A settlement agent commenter requested 
clarification on whose responsibility it would be to provide the 
Closing Disclosure to the consumer.
Final Rule
    In general. The final rule adopts alternative 2 substantially as 
proposed. In light of the comments and ex parte submissions and RESPA's 
long-standing requirements regarding settlement agent preparation and 
delivery of the RESPA settlement statement, the Bureau believes that 
expressly allowing creditors to work with settlement agents will 
provide the most certainty in the market. Indeed, creditor commenters 
indicated that alternative 2 would make clear that they could continue 
to rely on settlement agents. Thus, the Bureau believes the final rule 
avoids creating uncertainty and avoids increased compliance costs and 
other risks to industry that could ultimately result in higher costs to 
consumers.
    Alternative 2 provides clarity for creditors while also leaving 
sufficient flexibility for creditors and settlement agents to arrive at 
the most efficient means of preparation and delivery of the Closing 
Disclosure to consumers. Under the final rule, creditors and settlement 
agents are free to divide responsibility in a variety of ways, 
including but not limited to a division in which the creditor provides 
the Closing Disclosure three business days before consummation and the 
settlement agent provides any corrected Closing Disclosure at 
consummation, subject to the provisions of Sec.  1026.19(f), as 
suggested as an alternative by some trade association commenters 
representing banks and financial companies.
    The Bureau has considered suggestions from industry to impose 
additional substantive and procedural obligations on both creditors and 
settlement agents, including suggestions by some commenters for 
dividing responsibility for specific disclosures between settlement 
agents and creditors. After considering these comments, the Bureau 
continues to believe alternative 2 most effectively balances the 
interests of ensuring consumers receive a timely and accurate Closing 
Disclosure prepared in a consistent manner with the interests of 
industry in complying with the rule. The Bureau believes that a rule 
that expressly divided substantive disclosure responsibilities or 
assigned strict procedural duties governing the relationship between 
creditors and settlement agents would impose coordination costs on 
creditors and settlement agents that may result in inefficiencies 
during the closing process. The Bureau believes that the better 
approach for consumers is to permit shared responsibility and allow 
creditors and settlement agents to decide how to divide that 
responsibility most efficiently.
    As part of the Small Business Review Panel process, the Bureau 
considered requiring the creditor to prepare certain loan cost 
information, and the settlement agent to prepare certain real estate 
settlement cost information. Under this approach, the creditor and 
settlement agent would be jointly responsible for combining the 
portions of the disclosure and providing the consumer with a Closing 
Disclosure three business days before closing. See Small Business Panel 
Review Report at 12. However, the Bureau determined after conducting 
the Small Business Review Panel, and continues to believe, that such a 
division would be

[[Page 79867]]

impracticable. The Bureau received comments in response to the proposal 
suggesting a wide variety of approaches to creditor-settlement agent 
engagement, indicating that the industry does not employ a uniform 
method for disclosing information to consumers. In addition, there is 
significant overlap between the disclosures required by the two 
statutes, and creditors and settlement agents have access to both RESPA 
and TILA information.\235\ Further, alternative 2 allows creditors and 
settlement agents to decide whether and how to coordinate, which would 
be complicated by a rule that assigned strict responsibilities to 
particular parties. For example, under the final rule, some creditors 
could conduct some closings in-house to avoid coordination costs in 
some cases. Alternative 2 provides flexibility by allowing creditors to 
manage preparation of the Closing Disclosure in a manner appropriate to 
their size, market, financial resources, and their own assessments of 
compliance risk and the applicability of other State law, Federal law, 
or other guidance, affecting their responsibility to supervise third-
party service providers.\236\
---------------------------------------------------------------------------

    \235\ While some of the Closing Disclosure requirements in 
Regulation Z are modeled on existing provisions in Regulation X, the 
Closing Disclosure also includes new information that will likely 
require some degree of coordination. For example, the cash to close 
disclosure on pages 2 and 3 involves a calculation of loan costs, 
settlement service costs, and other costs. Accordingly, because this 
calculation requires analysis of several categories of costs, 
settlement agents and creditors may need to coordinate to arrive at 
a single cash to close figure.
    \236\ See, e.g., U.S. Consumer Fin. Prot. Bureau, Bulletin 2012-
03 (2012), available at http://files.consumerfinance.gov/f/201204_cfpb_bulletin_service-providers.pdf.
---------------------------------------------------------------------------

    Moreover, a number of settlement agents and related trade 
associations explained that they did not wish to bear responsibility or 
costs associated with providing the Closing Disclosure. A number of 
settlement agent commenters operating in escrow jurisdictions expressed 
concern with a requirement that would impose TILA disclosure 
obligations on them and expressly requested that they not have any 
responsibility for providing disclosures under TILA. The final rule 
addresses the concerns expressed by many settlement agent commenters 
about substantial compliance costs that they would incur in exchanging 
information and in coordinating with creditors. The final rule allows 
settlement agents to avoid such costs by not taking responsibility for 
the Closing Disclosure. At the same time, creditors would still be free 
to rely on settlement agents' expertise in conducting closings. Thus, 
Alternative 2 provides settlement agents some flexibility with respect 
to determining the scope of their involvement in preparing and 
delivering the Closing Disclosure.
    In addition, the Bureau believes the final rule will avoid concerns 
with conflicting State laws governing the conduct of settlement. 
Although the final rule requires only that the creditor provide certain 
disclosures to consumers and does not require that the creditor conduct 
settlements, the Bureau appreciates that creditor preparation of the 
Closing Disclosure may raise operational questions for creditors in 
certain States. To the extent a creditor is concerned with compliance 
with State or local laws, a creditor under alternative 2 may share 
responsibility with the settlement agent in whatever manner they 
determine is appropriate. In contrast, if the final rule were to assign 
more substantive or procedural responsibilities to creditors or 
settlement agents, the rule could raise difficult compliance questions 
with respect to the conduct of settlements in some jurisdictions.
    Some settlement agent commenters questioned whether creditors 
should have any role in preparing or overseeing the preparation of the 
Closing Disclosure. These commenters believed creditors would have an 
improper conflict-of-interest in preparing the disclosure of settlement 
costs. The Bureau does not believe that requiring creditors to retain 
responsibility for the Closing Disclosure in the final rule will lead 
to consumer harm or abuse in other contexts because creditors will have 
sufficient incentive to comply with the final rule to ensure consumers 
receive a timely and accurate disclosure.
    Some commenters expressed concern that settlement agents could face 
operational challenges if a creditor prepares the Closing Disclosure in 
a manner that conflicts with the creditor's closing instructions to the 
settlement agent. The Closing Disclosure is designed to integrate 
disclosures provided to consumers under TILA and RESPA to enhance their 
understanding of the home mortgage loan transaction. To the extent the 
Closing Disclosure's disclosure requirements differ from other 
arrangements made pursuant to contract or other law or custom, the 
final rule does not prohibit creditors and settlement agents from 
developing their own disbursement instructions and managing any 
discrepancies as they arise, consistent with the current practice with 
respect to the RESPA settlement statement. To the extent settlement 
agents have questions about how to explain the Closing Disclosure to 
consumers, the Bureau believes they will be able to coordinate with the 
creditor ahead of time as a result of the general three-business-day 
requirement in Sec.  1026.19(f)(1)(ii)(A). As noted in the section-by-
section analysis of that section, the Bureau believes a general three-
business-day requirement will improve coordination between settlement 
agents and creditors by providing all parties additional time to ask 
questions and correct errors.
    Concerns with creditor responsibility under alternative 2. 
Commenters expressed concern that creditor responsibility for the 
Closing Disclosure would make creditors more likely to assume greater 
control over the settlement process, which would result in closing 
delays because creditors would have to approve any last-minute changes 
that arise at the closing table. Creditor commenters also questioned 
the Bureau's authority to require creditors to disclose settlement cost 
information, particularly in light of RESPA section 4. The Bureau 
appreciates industry's concerns that creditor responsibility for the 
Closing Disclosure may affect the current roles of creditors and 
settlement agents. However, to integrate the disclosure requirements 
under TILA and RESPA, the Bureau believes the final rule should make 
creditors responsible for the accuracy and delivery of the Closing 
Disclosure under Sec.  1026.19(f).
    As discussed in the section-by-section analysis of Sec.  
1026.19(f)(1)(ii)(A), Dodd-Frank Act section 1419 amended TILA to 
require that creditors disclose aggregate settlement cost information 
under the early and final TILA disclosures required by TILA section 
128. See 15 U.S.C. 1638(a)(17). As a result, creditors have 
responsibility for disclosing settlement cost information that had 
previously been solely the responsibility of settlement agents under 
RESPA. In light of this responsibility, the Bureau believes alternative 
2 is appropriate because it permits creditors flexibility in how they 
rely on settlement agents to disclose settlement cost information. In 
addition, the Bureau believes creditors are in a better position than 
settlement agents to provide other TILA disclosures, such as the 
finance charge and projected payments disclosures. Further, making a 
single party ultimately responsible for the Closing Disclosure will 
reduce the likelihood of inconsistencies and errors in disclosures that 
require coordination, such as the cash to close disclosure.
    The Bureau also believes that modifications to the proposal made in 
the final rule will reduce the rule's impact on the existing roles of 
creditors

[[Page 79868]]

and settlement agents. The final rule clarifies that, with respect to 
the Closing Disclosure provided three business days before 
consummation, creditors may provide disclosures based on the best 
information reasonably available and may rely on information provided 
by settlement agents. See the section-by-section analysis of Sec.  
1026.19(f)(1)(i) above. In addition, under Sec.  1026.19(f)(1)(v), 
settlement agents may provide consumers with the Closing Disclosure, 
provided they comply with all relevant requirements of Sec.  
1026.19(f), as discussed further below.
    Further, the final rule reduces the risk that changes to the 
Closing Disclosure will result in closing delays, as discussed in the 
section-by-section analyses of Sec.  1026.19(f)(1)(i), (f)(1)(ii)(A), 
and (f)(2). For example, the narrowed redisclosure waiting period 
triggers in Sec.  1026.19(f)(2) should facilitate a settlement agent's 
participation in the transaction. Because additional three-business-day 
periods will be triggered only by changes to APR, loan product, and the 
addition of a prepayment penalty, other changes to settlement costs 
will not trigger a new waiting period. See the section-by-section 
analysis of Sec.  1026.19(f)(2)(i) and (ii) above. The final rule also 
accounts for changes during the settlement process that may occur after 
consummation, as discussed in the section-by-section analysis of Sec.  
1026.19(f)(2)(iii). The Bureau believes these modifications will reduce 
compliance risk for creditors as they relate to the disclosure of 
settlement costs, which the Bureau believes will reduce the likelihood 
of disrupting the current roles of creditors and settlement agents.
    The Bureau acknowledges that, despite these modifications to the 
final rule, creditors may assume greater responsibility for the 
disclosure of settlement cost information than they do currently. 
However, while creditors may seek to assume greater control over the 
disclosure of settlement costs or apply greater scrutiny to settlement 
services than under current rules, the Bureau believes creditors will 
continue to rely on the expertise of settlement agents in conducting 
closings. Creditor comments indicate that creditors and settlement 
agents have long-standing, deep relationships in which settlement 
agents act as creditors' partners in the closing and settlement 
process. As noted by many commenters, creditor responsibility under 
alternative 2 aligns with current practices and allow the parties to 
continue to work together to close home mortgage transactions in a 
manner that is most efficient for consumers and the market. With 
respect to commenters who were concerned that creditor responsibility 
for the Closing Disclosure would lead creditors to assume an improper 
role with respect to the underwriting of title insurance policies, the 
Bureau believes title insurance underwriters and creditors share an 
incentive to minimize risk to the underwriting of their own title 
insurance. Thus, the Bureau expects that creditors will have strong 
incentives to continue to rely on settlement agents under alternative 
2. Furthermore, the Bureau expects that the requirements adopted in the 
2013 ATR Final Rule and the May 2013 ATR Final Rule may have an impact 
on a creditor's decision to rely on exclusive affiliate relationships 
because those rules limit the points and fees that may be charged for a 
qualified mortgage, which are defined to include affiliate charges. See 
Sec.  1026.32(b)(1)(i)(D) and (b)(1)(iii).
    With respect to commenters' concerns that creditor responsibility 
for the Closing Disclosure would lead to dual closings, the final rule 
does not require that closings be conducted in any particular manner, 
other than to require the delivery and inspection of the Closing 
Disclosure in accordance with the requirements of Sec.  1026.19(f). The 
Bureau expects industry will adapt current practices in a variety of 
ways, consistent with other applicable law or custom, to ensure 
consumers receive the required disclosures. With respect to concerns 
about closing delays caused by creditor-settlement agent coordination, 
the Bureau does not expect such delays will occur frequently because 
creditors and settlement agents already must coordinate to prepare the 
RESPA settlement statement. As noted by commenters, creditors and 
settlement agents work closely to conduct closings under current rules 
and the Bureau expects that this coordination will continue under the 
final rule.
    One commenter suggested that the rule would require title insurance 
underwriters to establish an effective process for managing the 
compliance risk of settlement agents. The final rule does not impose 
requirements on title insurance underwriters to establish processes to 
manage the compliance risks of settlement agents as requested by 
commenters. Such requirements are outside of the scope of this 
rulemaking and are managed by most States through licensing 
regulations.
    Some commenters expressed concern that proposed Sec.  
1026.19(f)(1)(v) would mean settlement agents would have to assume all 
the duties of the creditor. The Bureau does not intend through this 
final rule to impose duties outside the scope of Sec.  1026.19(f) on 
settlement agents. A settlement agent's compliance with duties under 
Sec.  1026.19(f) depends on the extent of settlement agent involvement 
in preparing and providing the Closing Disclosure. Proposed comment 
19(f)(1)(v)-1 would have explained that, by assuming responsibility to 
provide the disclosures required under Sec.  1026.19(f)(1)(i), the 
settlement agent becomes responsible for complying with all of the 
relevant requirements of Sec.  1026.19(f). As discussed below, the 
final rule adopts this comment substantially as proposed. To further 
clarify the scope of a settlement agent's responsibility under the 
rule, and to conform to similar language in Sec.  1026.19(e) with 
respect to mortgage brokers, final Sec.  1026.19(f)(1)(v) states that a 
settlement agent may provide a consumer with the Closing Disclosure, 
provided the settlement agent complies with ``all relevant'' 
requirements of Sec.  1026.19(f). In addition, the final rule omits the 
language ``as if it were the creditor'' to avoid any suggestion that 
settlement agents, by providing the Closing Disclosure, would assume 
duties outside the scope of Sec.  1026.19(f).
    The Bureau believes settlement agents' compliance with the relevant 
provisions of Sec.  1026.19(f) is critical to ensuring consumers 
consistently receive a Closing Disclosure that complies with the final 
rule, regardless of how settlement agents and creditors divide 
responsibility. In addition, because creditors are responsible under 
Sec.  1026.19(f)(1)(v) for ensuring compliance with Sec.  1026.19(f), 
the Bureau believes creditors would be reluctant to share 
responsibility with settlement agents if it were unclear whether 
settlement agents had to comply with Sec.  1026.19(f). Section 
1026.19(f)(1)(v) makes clear that a settlement agent must comply with 
Sec.  1026.19(f) to the extent it assumes the responsibility to provide 
the disclosures required by that provision.
    Some commenters stated that the rule's lack of specificity about 
the roles of settlement agents and creditors would result in confusion 
over the responsibilities of the respective parties. As discussed 
above, however, the final rule does not further specify which parts of 
the Closing Disclosure a settlement agent is required to complete or, 
if more than one Closing Disclosure is provided under Sec.  1026.19(f), 
which Closing Disclosure the settlement agent is required to deliver. 
Final Sec.  1026.19(f)(1)(v) is intended to provide maximum flexibility 
between creditors and settlement agents so that they may

[[Page 79869]]

determine how to provide the Closing Disclosure most efficiently and 
effectively in the contexts of their businesses. As discussed below, 
the proposed comment 19(f)(1)(v)-2 has been revised to clarify the 
meaning of Sec.  1026.19(f)(1)(v) with respect to a settlement agent's 
ability to divide responsibility with the creditor for providing 
different versions of the Closing Disclosure under Sec.  1026.19(f).
    Commenters also expressed concern about creditor responsibility for 
the Closing Disclosure, notwithstanding the settlement agent's 
involvement. As they would have been under proposed Sec.  
1026.19(f)(1)(v), creditors under final Sec.  1026.19(f)(1)(v) are 
responsible for ensuring compliance with Sec.  1026.19(f), even where a 
settlement agent provides the disclosures. The Bureau believes making a 
single party ultimately responsible for the Closing Disclosure will 
provide industry an incentive to ensure the Closing Disclosure is 
provided in a consistent manner. Creditor responsibility also may 
provide an incentive to improve creditor and settlement agent 
communication, as noted by some settlement agent commenters. The Bureau 
does not believe it is necessary to mandate in the final rule how a 
settlement agent and creditor must coordinate to ensure settlement 
agent compliance because settlement agents are already required to 
comply with Sec.  1026.19(f)(1)(i), pursuant to Sec.  1026.19(f)(1)(v).
    Some commenters recommended that the final rule set forth 
objectives-based criteria for creditors and settlement agents to 
provide timely and accurate information. The Bureau does not believe it 
is necessary to do so. In general, the Bureau believes final Sec.  
1026.19(f)(1)(v) sets forth a clear standard for settlement agents to 
comply with Sec.  1026.19(f) to the extent they provide disclosures 
under that section. In addition, the Bureau also believes that 
creditors will be able to manage compliance risk through agreements and 
arrangements with settlement agents and title insurance underwriters. 
In addition, the Bureau believes the clarification made in comment 
19(f)(1)(i)-2, as discussed in the section-by-section analysis of Sec.  
1026.19(f)(1)(i), addresses concerns about relying on third-party 
information for the Closing Disclosure provided three business days 
before consummation.
    The final rule does not include a requirement that the settlement 
agent provide information to the creditor in a timely manner. To 
provide industry maximum flexibility in preparing and providing the 
Closing Disclosure, the final rule does not mandate that settlement 
agents and creditors coordinate in any particular manner. In light of 
the variety of ways creditors and settlement agents may divide 
responsibilities and the diversity of settlement practices across the 
country, the Bureau does not believe it is feasible to define with 
specificity a timeliness standard for all creditors and settlement 
agents. Mandating specific timeframes for sharing information could be 
unnecessarily cumbersome for industry. Accordingly, the final rule does 
not require that settlement agents share information with creditors by 
any particular deadline. Nor does the final rule impose a general 
requirement for settlement agents to provide ``timely'' information. 
Without further defining such a requirement, the Bureau is concerned 
that such a standard would be vague. The Bureau expects settlement 
agents will have a business interest in coordinating with creditors to 
ensure they provide information in a timely manner.
    Some commenters requested clarification on whether creditors and 
settlement agents may complete portions of the Closing Disclosure and 
combine their portions into one form manually provided to the consumer, 
or if they may separately provide their respectively completed portions 
to the consumer. Creditors and settlement agents may agree on a 
division of responsibility to complete portions of the Closing 
Disclosure, but they must coordinate to ensure the consumer receives a 
single disclosure. See the discussion of comment 19(f)(1)(v)-4 below. 
With respect to comments regarding the use of standard and model forms, 
see the section-by-section analysis of Sec.  1026.38(t)(3) below.
    Final provisions. For the reasons discussed above, the Bureau 
adopts the language in proposed Sec.  1026.19(f)(1)(v) substantially as 
proposed. As discussed above, final Sec.  1026.19(f)(1)(v) states that 
the settlement agent may provide a consumer with the disclosures 
required under Sec.  1026.19(f)(1)(i), provided the settlement agent 
complies with ``all relevant'' requirements of Sec.  1026.19(f). In 
addition, as discussed above, the final rule omits the language ``as if 
it were the creditor.''
    Final Sec.  1026.19(f)(1)(v) includes a modification with respect 
to the requirement that the creditor ensure that the disclosures 
required under Sec.  1026.19(f)(1)(i) are provided in accordance with 
all requirements of Sec.  1026.19(f). For clarity, and to conform to 
similar language in Sec.  1026.19(e)(1)(ii) with respect to mortgage 
brokers who provide the Loan Estimate, the final provision states that 
the creditor must ensure that ``such'' disclosures are provided in 
accordance with ``all'' requirements of Sec.  1026.19(f). For the same 
reasons, final Sec.  1026.19(f)(1)(v) provides that disclosures 
provided by a settlement agent in accordance with the requirements of 
Sec.  1026.19(f) satisfy the creditor's obligation under the general 
paragraph 19(f), instead of the more specific paragraph 19(f)(1)(i).
    The Bureau adopts proposed comment 19(f)(1)(v)-1 substantially as 
proposed. To facilitate compliance with Sec.  1026.19(f), the comment 
explains that, for purposes of Sec.  1026.19(f), a settlement agent is 
the person conducting the settlement. This language is substantially 
similar to language in RESPA section 4(b), which requires ``the person 
conducting the settlement'' to provide the RESPA settlement statement. 
The comment does not include the language ``as if it were the 
creditor,'' to conform to the final rule. Comment 19(f)(1)(v)-1 also 
revises proposed language that would have addressed how Sec.  
1026.19(f)(1)(v) applies where requirements of Sec.  1026.19(e) are 
referenced in Sec.  1026.19(f). The proposed language would have 
referred to text in proposed comment 19(f)(1)(ii)-3 for an example 
involving timeshare transactions and provision of the Loan Estimate 
under Sec.  1026.19(e), in which ``settlement agent'' could not be read 
in place of ``creditor.'' As discussed in the section-by-section 
analysis of Sec.  1026.19(f)(1)(ii)(B) above, comment 19(f)(1)(ii)-3 
has been revised with respect to the provision of the Loan Estimate for 
timeshare transactions. Accordingly, conforming changes have been made 
to comment 19(f)(1)(v)-1. Finally, comment 19(f)(1)(v)-1 also includes 
minor technical revisions for clarity.
    The Bureau adopts proposed comment 19(f)(1)(v)-2 with modifications 
and additional discussion to clarify the variety of ways in which 
creditors and settlement agents may agree to divide responsibility with 
respect to providing the disclosures pursuant to Sec.  
1026.19(f)(1)(v). The comment uses the term ``provides'' to better 
reflect the language in the rule text, instead of the term ``issues'' 
that was used in proposed comment 19(f)(1)(v)-2. Comment 19(f)(1)(v)-2 
also clarifies that if the settlement agent provides any disclosures 
under Sec.  1026.19(f), the settlement agent must comply with the 
``relevant'' requirements of Sec.  1026.19(f). The comment also 
provides an illustrative example of how creditors and settlement agents 
could divide responsibility and includes a cross-reference to comment 
19(f)(1)(v)-3 to

[[Page 79870]]

indicate that a creditor remains responsible under Sec.  1026.19(f) for 
ensuring that the requirements of Sec.  1026.19(f) have been satisfied.
    Like the proposed comment, comment 19(f)(1)(v)-2 explains that the 
settlement agent may assume the responsibility to provide some or all 
of the disclosures required by Sec.  1026.19(f). However, comment 
19(f)(1)(v)-2 does not include the example in proposed comment 
19(f)(1)(v)-2 that would have illustrated how a settlement agent and a 
creditor could divide responsibility with respect to completing the 
Closing Disclosure. Instead, comment 19(f)(1)(v)-2 includes a cross-
reference to comment 19(f)(1)(v)-4 to refer to additional guidance on 
how creditors and settlement agents may divide responsibilities for 
completing the disclosures.
    The Bureau adopts proposed comment 19(f)(1)(v)-3 substantially as 
proposed. The comment includes additional language to clarify the 
example in which the creditor does not comply with Sec.  1026.19(f). 
The example in comment 19(f)(1)(v)-3 explains that if the settlement 
agent assumes the responsibility for providing all of the disclosures 
required under Sec.  1026.19(f)(1)(i), the creditor does not comply 
with Sec.  1026.19(f) if the settlement agent does not provide these 
disclosures at all, or if the consumer receives the disclosures later 
than three business days before consummation, as required by Sec.  
1026.19(f)(1)(ii) and, as applicable, (f)(2)(ii). The final rule adopts 
proposed comment 19(f)(1)(v)-4 with modifications to include additional 
language clarifying that creditors and settlement agents may divide 
responsibility to complete the Closing Disclosure under Sec.  1026.38.
    Final Sec.  1026.19(f)(1)(v) and its associated commentary are 
adopted pursuant to the Bureau's authority under TILA section 105(a), 
RESPA section 19(a), and Dodd-Frank Act section 1405(b). Final Sec.  
1026.19(f)(1)(v) and its associated commentary will achieve the 
purposes of RESPA by resulting in more effective advance disclosure of 
settlement costs, consistent with section 19(a) of RESPA, and by 
promoting the informed use of credit, consistent with section 105(a) of 
TILA. The final rule and commentary also will improve consumer 
understanding and awareness of the transaction by permitting the form 
to be completed and provided by settlement agents, who often assist 
consumers during a real estate closing, which is in the interest of 
consumers and in the public interest, consistent with Dodd-Frank Act 
section 1405(b).
    The final rule and commentary are consistent with Dodd-Frank Act 
section 1032(a) because the features of mortgage loan transactions and 
settlement services will be more fully, accurately, and effectively 
disclosed to consumer in a manner that permits consumers to understand 
the costs, benefits, and risks associated consumers will understand the 
costs and risks associated with the mortgage loan and settlement 
services if settlement agents are permitted to provide the disclosures 
required under Sec.  1026.19(f)(1)(i).
    The Bureau understands that some commenters were concerned that 
settlement agents would face civil liability under section 130 of TILA 
if the Bureau adopted proposed alternative 2. However, the Bureau does 
not believe that a settlement agent's providing the Closing Disclosure, 
or some aspect thereof, under Sec.  1026.19(f)(1)(v) exposes the 
settlement agent to civil liability under section 130 of TILA, to the 
extent that the settlement agent is not also functioning as a creditor 
or an assignee under TILA sections 130 and 131.
19(f)(2) Subsequent Changes
    As discussed above, the proposal would have included a strict 
requirement that the disclosures provided three business days before 
consummation contain the ``actual terms'' of the transaction. Thus, 
because the ``actual terms'' would have had to be disclosed three 
business days before consummation pursuant to Sec.  1026.19(f)(1)(ii), 
revisions to the Closing Disclosure generally would have triggered a 
new three-business-day pre-consummation waiting period. However, the 
Bureau recognized that, in certain circumstances, a strict application 
of the three-business-day waiting period required by proposed Sec.  
1026.19(f)(1)(ii) would operate to the consumer's detriment. 
Accordingly, proposed Sec.  1026.19(f)(2) would have provided that if 
the Closing Disclosure provided pursuant to proposed Sec.  
1026.19(f)(1)(i) is subsequently revised for any of the reasons 
described in Sec.  1026.19(f)(2), a creditor need not comply with the 
timing requirements in Sec.  1026.19(f)(1)(ii) when providing a revised 
disclosure.
    In general, under Sec.  1026.19(f)(2)(i) and (f)(2)(ii) 
respectively, if changes occurred due to consumer and seller 
negotiations, or if the amount actually paid by the consumer did not 
exceed the amount disclosed pursuant to Sec.  1026.38(d)(1) by more 
than $100, the creditor would have been required to provide a revised 
Closing Disclosure reflecting such changes at or before consummation, 
instead of triggering a new three-business-day pre-consummation waiting 
period. Proposed Sec.  1026.19(f)(2)(iii) through (v) would have 
permitted revised disclosures to be provided within 30 days after 
consummation and, in some cases, as soon as reasonably practicable, 
where a revised Closing Disclosure was provided due to inaccuracies 
resulting solely from payments to a government entity, to correct non-
numeric clerical errors, and to document cures for violations of the 
good faith estimate requirements, respectively.
    As discussed in greater detail in the section-by-section analyses 
of Sec.  1026.19(f)(2)(i) and (ii) below, the final rule narrows the 
circumstances in which revisions to the ``actual terms'' of the Closing 
Disclosure provided three business days before consummation under Sec.  
1026.19(f)(1)(ii)(A) trigger a new three-business-day pre-consummation 
waiting period. In general, pursuant to final Sec.  1026.19(f)(2)(i) 
and (ii), a revised Closing Disclosure must be provided three business 
days before consummation when the loan's previously disclosed APR 
becomes inaccurate, the loan product changes, or a prepayment penalty 
is added; other revisions may be disclosed at or before consummation. 
Final Sec.  1026.19(f)(2)(iii) through (v) set forth circumstances 
under which revised disclosures must be provided after consummation. 
However, because the triggers for providing a revised Closing 
Disclosure three business days before consummation have been narrowed 
pursuant to Sec.  1026.19(f)(2)(ii), final Sec.  1026.19(f)(2)(iii) 
through (v) no longer function as exceptions to the strict three-
business-day requirement under proposed Sec.  1026.19(f)(1)(ii). 
Nevertheless, the Bureau believes retaining them, with modifications 
discussed below, will enhance consumer awareness and understanding of 
their mortgage transaction and facilitate industry compliance.
19(f)(2)(i) and (ii) Changes Before Consummation
    Proposed 19(f)(2)(i). Proposed Sec.  1026.19(f)(2)(i), would have 
provided that if the consumer and the seller agree to make changes to 
the transaction that affect items previously disclosed, the creditor 
shall deliver revised disclosures reflecting such changes at or before 
consummation. Under proposed Sec.  1026.19(f)(2)(i), these changes 
could be reflected on a revised Closing Disclosure without triggering a 
new three-business-day waiting period. Proposed comment 19(f)(2)(i)-1 
would have provided illustrative examples of this requirement. The 
proposal reflected the

[[Page 79871]]

common practice in which sellers and buyers alter the terms of the real 
estate transaction based on the condition of the house at the time of 
the walk-though inspection, which is often the day before the scheduled 
real estate closing, and in some cases even continue to negotiate the 
deal at the closing table.
    Proposed 19(f)(2)(ii). Proposed Sec.  1026.19(f)(2)(ii) would have 
provided that if the amount actually paid by the consumer does not 
exceed the amount disclosed under Sec.  1026.38(d)(1) by more than 
$100, the creditor shall deliver revised disclosures at or before 
consummation. The Bureau sought comment on whether $100 was the 
appropriate threshold to accommodate small miscalculations or minor 
changes prior to consummation. The Bureau proposed this exemption 
because it did not believe that small miscalculations or minor changes 
to the transaction should result in closing delays. The Bureau stated 
its belief that $100 may have been the correct tolerance based on 
feedback regarding the items most likely to change prior to 
consummation.
    Proposed comment 19(f)(2)(ii)-1 would have discussed the 
requirements of Sec.  1026.19(f)(2)(ii), which would have stated that 
the creditor may provide revised disclosures without regard to the 
timing requirements in Sec.  1026.19(f)(1)(ii) if the amount actually 
paid by the consumer does not exceed the amount disclosed pursuant to 
Sec.  1026.38(d)(1) by more than $100, provided that the creditor 
delivers revised disclosures at or before consummation. This proposed 
comment also would have included illustrative examples of these 
requirements.
    Proposed comment 19(f)(2)(ii)-2 would have clarified that revised 
disclosures provided at consummation may reflect adjustments pursuant 
to both Sec.  1026.19(f)(2)(i) and Sec.  1026.19(f)(2)(ii). Thus, 
although proposed Sec.  1026.19(f)(2)(ii) would have limited the 
difference between the amount disclosed pursuant to Sec.  
1026.19(f)(1)(i) and the amount actually paid at the real estate 
closing by the consumer to $100, the amount actually paid by the 
consumer at the real estate closing could vary by more than $100, to 
the extent permitted by proposed Sec.  1026.19(f)(2)(i). This proposed 
comment also included illustrative examples of this provision.
Comments
    The Bureau received extensive comment and ex parte submissions on 
the proposed redisclosure requirements and exemptions from a broad 
group of stakeholders, including consumer advocacy groups, commenters 
representing a variety of industry sectors, government agencies, and 
members of Congress. While most consumer advocacy groups did not 
comment specifically on this aspect of the proposal, two such groups 
submitting a joint comment supported the proposal's requirement to 
redisclose the Closing Disclosure at least three business days before 
consummation for any changes to the actual terms of the transaction, 
subject to the bona fide personal financial emergency waiver and the 
Bureau's proposed narrow exemptions. These commenters emphasized that 
any exemptions to the timing requirements should be narrow. An 
individual settlement agent commenter also expressed support for the 
redisclosure waiting period and the proposed exemptions.
    A State attorney general commenter supported the redisclosure 
waiting period and the proposed exemptions and noted that the magnitude 
and cost of a consumer's decision to purchase a home make it 
particularly important that consumers be made aware of all associated 
costs far enough in advance of closing to be able to reasonably 
evaluate the transaction with all costs in mind. Several associations 
of State financial regulators submitted a joint letter in which they 
offered measured support for the proposed redisclosure waiting period. 
While these commenters noted that they generally supported an advance 
disclosure requirement, they stated that the Bureau should take a 
balanced and careful approach to the implementation of the proposed 
timing and redisclosure requirements. The letter stated that thresholds 
should not cause significant market disruptions and should be amended 
if they do. Thus, these commenters requested that the Bureau seek ways 
to avoid restricting access to credit or unnecessarily delaying 
closings. These commenters also emphasized that the expanded tolerances 
proposed by the Bureau would ensure that consumers are not subject to 
the types of abusive practices that they were in the past and would 
provide an incentive for lenders to provide consumers with accurate 
Loan Estimates and Closing Disclosures, reduce the risk of error and 
uncertainty associated with the disclosure process, and lead to a 
healthier residential mortgage market.
    By contrast, an overwhelming majority of industry commenters, 
including a GSE, and a State housing development authority, along with 
members of Congress, expressed significant concern with the proposed 
redisclosure waiting period for changes to the actual terms of the 
transaction and the narrowness of the proposed exemptions. The SBA and 
members of Congress also expressed significant concern with the 
proposed redisclosure waiting period and the narrowness of the proposed 
exemptions.\237\ Similar to concerns about the general three-business-
day receipt requirement, commenters explained that providing ``final'' 
settlement costs three business days before consummation was 
impracticable, unnecessary, and would result in frequent closing delays 
that would impose substantial costs on consumers, sellers, industry, 
and the market. The majority of these commenters were concerned that 
the narrow exemption and waiver provisions would not reduce the 
likelihood of closing delays due to redisclosure.
---------------------------------------------------------------------------

    \237\ The Bureau received one letter submitted by a member of 
Congress during the comment period and two ex parte letters dated 
May 24, 2013, signed by 62 Republican members and 20 Democratic 
members of Congress, respectively. The letters expressed serious 
concern with the proposal's redisclosure requirements.
---------------------------------------------------------------------------

    Difficulties associated with a redisclosure waiting period. 
Commenters cited in connection with a three-business-day redisclosure 
period the same concerns they cited about the impracticality of 
providing final settlement costs three business days before 
consummation, described in the section-by-section analysis of Sec.  
1026.19(f)(1)(ii) above. Commenters identified a variety of reasons why 
transaction costs can change during the three-business-day period 
before consummation, which commenters believed would frequently trigger 
a new three-business-day period.
    Many commenters highlighted consumer requests as a major source of 
changes to the loan or settlement costs. Commenters explained that 
consumers frequently request changes to the loan amount, either because 
the amount needed to pay off a refinanced loan changes or, in the 
purchase context, because the consumer's financing needs change 
independent of a negotiation with a seller. For example, commenters 
explained that consumers may discover they need a larger or smaller 
down-payment before consummation. Commenters also explained that 
consumers may make changes affecting their escrow charges or purchase 
products or services in connection with the transactions, such as 
insurance endorsements, mobile notary services, document-preparation 
services, inspections, and legal services. Commenters maintained that 
it would be important for consumers to retain

[[Page 79872]]

flexibility to make changes to their transactions.
    Commenters identified third party changes not requested by the 
consumer that could affect the transaction, despite reasonable due 
diligence of creditors and settlement agents. Commenters explained that 
it is not uncommon for third parties to correct errors or account for 
changed circumstances outside of the control of creditors or settlement 
agents. For example, a variety of commenters noted that homeowners' 
associations may be late in reporting assessments or fees associated 
with a certificate of approval. Another common example was that of 
third-party lenders who may be late in providing payoff statements or 
subordination agreements. Commenters also cited weather- or travel-
related delays as reasons why certain costs may not be known until 
consummation. Commenters also identified changes that only affected the 
seller's side of the transaction as a common source of changes that 
might occur before consummation, such as increases in the seller's 
payoff amounts or additional interest due on taxes. Commenters did not 
believe changes to the seller's side of the transaction should require 
a new three-business-day waiting period. Commenters also explained that 
agents conducting a title exam may discover new encumbrances or other 
obligations, such as final utility charges, judgments, unpaid taxes, 
or, in rural areas, grazing leases, wells, or easements, during a 
``final rundown'' the day before consummation that is often done as a 
matter of prudent due diligence.
    In addition, commenters explained that a series of redisclosure 
waiting periods could be triggered if per diem or prorated amounts 
accumulate, such as prepaid interest or escrowed charges. A number of 
commenters, including a GSE, expressed concern that the accumulation of 
such charges could trigger a series of redisclosure periods if the de 
minimis exemption under proposed Sec.  1026.19(f)(2)(ii) were too low. 
Commenters also explained that a number of settlement costs are 
interrelated, such as service provider commissions, and that a change 
in one item could easily change another.
    Many industry commenters believed that the proposed exemptions were 
too narrow to prevent frequent closing delays. Members of Congress 
settlement agent commenters submitted ex parte letters expressing 
concern that the rule would put consumers in the position of having to 
choose between having their closing delayed for three days (and paying 
the associated increased costs) or not buying a product for their 
protection (such as a home warranty or an owner's title insurance 
policy). Commenters supported the consumer-seller negotiation 
exemption, but believed the proposed $100 de minimis exemption was too 
low to effectively prevent unnecessary delays. A trade association 
representing creditors and a member of Congress stated that the Bureau 
provided little rationale for selecting a $100 de minimis exemption, 
suggesting that it appeared arbitrary. Commenters explained that $100 
was inadequate because it was not proportional to the transaction, did 
not account for inflation, or the variety of factors that can cause 
settlement costs to change within three to six business days before 
consummation and that are out of the creditor's or the settlement 
agent's control. Commenters explained that the following costs could 
easily exceed $100: fees charged for optional third-party services 
purchased by the consumer, such as a consumer's decision to hire an 
outside notary, a courier, or an attorney; consumer-requested changes 
to the loan amount, escrowed amounts, insurance policies or 
endorsements, premium-deductible tradeoffs, and home warranties; 
accumulating prepaid interest due to closing delays; or additional 
interest due on a consumer's payoff of an existing loan.
    Costs associated with a redisclosure waiting period. A significant 
proportion of commenters stated that a mandatory three-business-day 
redisclosure waiting period would impose high costs on consumers, 
sellers, industry, and the real estate market generally. Commenters 
identified the same costs described in the section-by-section analysis 
of Sec.  1026.19(f)(1)(ii) above, arguing that delayed closings would 
jeopardize a consumer's real estate agreements, result in financial 
costs and inconvenience to consumers and sellers, restrict a consumer's 
ability to shop, and prolong interest payments on outstanding debts. 
Commenters were concerned that delays caused by the redisclosure 
waiting period could cause certain loan and settlement costs to 
increase, which could trigger additional redisclosure waiting periods. 
Commenters also explained that uncertainty over when closings occur 
would make it difficult for consumers, sellers, settlement agents, and 
creditors to coordinate to reschedule closings. Some commenters were 
concerned that it would be difficult for parties to reschedule a 
closing date and that sellers may be unlikely to extend a purchase 
contract to accommodate a closing delay. In addition, a trade 
association representing banks explained that consumers would face 
liquidity problems if settlement agents placed consumer funds in non-
interest-bearing accounts. A large bank and a trade association 
representing settlement agents explained that consumers in refinancings 
would have difficulty meeting upcoming expenses or would forego savings 
for each three-business-day period during which they would have to make 
payments on an existing loan. A settlement agent commenter and 
professional association representing attorneys were concerned that 
multiple consumer-seller walk-through inspections would be required 
during each redisclosure waiting period.
    Commenters including settlement agents, creditors, and various 
trade associations also explained that the proposed rule could put 
consumers in a difficult position of deciding whether to make changes 
to their transaction (e.g., to purchase an insurance policy or make 
changes to escrowed items) or delay closings. The ex parte letters from 
members of Congress also expressed concern with such a scenario.
    Creditors were concerned that their underwriting costs would 
increase as a result of expired credit or employment verifications or 
expired interest rate locks, particularly if the Bureau finalizes 
tolerance rules that limit their ability to increase fees. Some 
creditors explained that they would likely price rate locks higher to 
cover this risk or that they may qualify the availability of guaranteed 
rates. Creditors also were concerned that uncertainty over the date of 
closing would require them to pay more for warehouse financing 
capacity. A settlement agent observed that settlement service providers 
may be inhibited from recouping the actual costs of their services if 
creditors or settlement agents did not revise the Closing Disclosure 
out of concern for triggering a redisclosure waiting period. A law firm 
commenter explained that without flexibility in the rule to account for 
changes in these charges, settlement service providers may delay 
consummation to ensure they are compensated for their services.
    Many industry commenters, including a GSE, expressed concern about 
the aggregate impact of the proposed three-business-day redisclosure 
rule on the efficiency of the market. Commenters expressed serious 
concern about the unintended consequences of delayed closings on 
sellers who have scheduled their own purchase transaction to occur 
immediately after a consumer's purchase transaction (coinciding 
settlements) or who are under pressure to conduct a short sale of their 
property

[[Page 79873]]

(for less than the outstanding principal balance of their loan). 
Commenters frequently cited an anticipated ``domino effect'' of delayed 
closings across the market, which could result in unexpected additional 
costs and delay other transactions. In general, commenters were 
concerned that delayed closings would result in fewer closings and 
increased cost and burden that would be passed on to consumers. A trade 
association representing settlement agents and the title insurance 
industry submitted a commissioned study analyzing the aggregate impact 
of the proposed redisclosure waiting period, highlighting financial 
costs to sellers and consumers, as well as to State and local 
governments.\238\ The study assumed that a little over half of total 
closings would experience at least one three-business-day delay of 
closing due to changes in the Closing Disclosure.
---------------------------------------------------------------------------

    \238\ The study stated that, ``[b]ased on incidents in past 
years, industry professionals expect that between 50 percent and 60 
percent of total closing transactions would experience at least one 
three-day delay of closing due to changes in the Closing Disclosure 
forms.'' Nam D. Pham, Ph.D., NDP Consulting, The Economic 
Contributions of the Land Title Industry to the U.S. Economy 
(November 2012), p. 2. The study concluded that delaying the 
collection of transfer taxes and fees would result in a ``lost time 
value'' for State and local governments, with a cumulative impact of 
more than $1 million for every three-day period. Further, the study 
concluded that just one three-day delay would have an impact of 
nearly $193 million on sellers (in terms of time value and mortgage 
interest payments), an impact of nearly $64 million on homeowners 
who refinance (in terms of mortgage interest payments for each one 
percentage point mortgage rate reduction), and, for home buyers, an 
impact of more than $1 billion per year in additional mortgage 
interest payments throughout the life of their mortgage loans. See 
id.
---------------------------------------------------------------------------

    Alternatives recommended by commenters. Industry commenters 
recommended a variety of approaches to modify the Bureau's proposed 
timing requirements, including requiring no waiting periods, shortening 
the three-business-day period to a one- or two-day period, requiring a 
three-business-day period for TILA-mandated costs, or requiring no 
waiting periods for settlement-related costs. Other commenters 
recommended adding flexibility to the consumer waiver or increasing the 
$100 de minimis exemption. Other commenters recommended additional 
exemptions for types of loans (e.g., refinancings), types of closing 
costs, or other exemptions based on changes requested by or benefiting 
the consumer.
    A community bank, a trade association representing various mortgage 
professionals, and an individual consumer recommended that the final 
rule require a separate form to be provided to consumers documenting 
what changed from the initial Closing Disclosure. Trade associations 
representing various mortgage professionals and settlement agents, a 
community bank, and a non-depository lender recommended that the final 
rule impose waiting periods shorter than three business days, such as a 
one-business-day waiting period.
    Many commenters, including trade associations representing 
settlement agents, banks, and real estate agents, title insurance 
companies, settlement agents, non-depository lenders, and attorneys, 
were concerned that the proposed exemptions would not cover all 
potential last-minute changes that presented relatively little consumer 
risk. Commenters requested that the Bureau clarify existing exemptions 
to prevent creditors and settlement agents from interpreting them 
narrowly to the detriment of consumers. Other commenters requested that 
the Bureau expand the scope of the proposed exemptions.
    Many commenters offered recommendations for changes they did not 
believe warranted a new waiting period. One trade association 
representing banks and financial companies explained that while a 
change to the fundamental terms of the loan may warrant a new waiting 
period, minor changes should not. Commenters also stated that changes 
requested by, agreeable to, or that otherwise benefit consumers should 
not require a new waiting period so that consumers could maximize their 
flexibility before consummation. Other categories suggested by creditor 
commenters included adjustments to the loan amount (e.g., due to 
investor or loan program limits or to account for payoffs of other 
loans), or changes that are due to circumstances outside of the 
creditor's control.
    Commenters also recommended that changes to particular closing 
costs should not require a new three-business-day period. Trade 
associations representing banks, a large bank, and a non-depository 
lender stated that amounts collected at closing that change depending 
on when closing is scheduled to occur should be exempted from a 
redisclosure waiting period. Settlement agents, including one 
submitting an ex parte submission, and trade associations representing 
settlement agents and the title insurance industry offered a number of 
other examples: closing costs unrelated to loan costs paid by or on 
behalf of the consumer; payments to discharge any defects, liens, 
encumbrances or other matters requiring curative action discovered 
during a title search or examination; any prorated or per diem amount 
where the underlying rate does not change; insurance fees; home 
warranties; lender reserves for taxes and insurance and amounts paid to 
a State or local government; recording costs and other fees incurred 
for the consumer's convenience, such as wire fees, notary fees, and 
endorsement fees; and changes due to consumer-seller negotiations or as 
a result of local custom or practice. A large bank stated that small 
increases in numerical disclosures other than the cash to close amount 
should not trigger a new waiting period, and various settlement agents 
stated that revisions to the seller's side of the transaction also 
should be exempt. One trade association representing the workforce 
mobility industry recommended that the final rule include an exemption 
for consumers who are obtaining a mortgage loan in connection with a 
corporate-sponsored relocation.
    A large bank, a community bank, and trade associations representing 
banks and financial companies suggested that changes to APR that are 
within the current TILA tolerances should not require a new waiting 
period. One trade association representing various mortgage 
professionals recommended a ten percent tolerance for changes in 
closing costs. Other commenters recommended that the Bureau make 
adjustments to the exemptions included in the proposal.
    Many commenters supported exemptions but believed the proposed 
exemptions were too narrow. A trade association representing real 
estate agents anticipated that creditors and settlement agents would be 
likely to interpret the proposed exemptions cautiously, which would 
lead to the three-business-day redisclosure period being invoked 
frequently, imposing costs on consumers.
    Trade associations representing banks and financial companies were 
concerned that sellers could game the proposed exemption for changes 
due to consumer-seller negotiations at proposed Sec.  1026.19(f)(2)(i) 
and deliberately postpone closings. Other commenters requested that the 
exemption should account for other seller-related changes. A trade 
association representing banks, a non-depository lender, and a large 
bank requested that the proposed exemption be expanded to cover 
additional changes to the transaction that might arise from a consumer-
seller negotiation affecting the terms of the purchase-and-sale 
agreement, such as a property price reduction that might result in a 
change

[[Page 79874]]

in the loan amount and the reduction or elimination of mortgage 
insurance.
    The Bureau received substantially more comment on the proposed $100 
de minimis exemption under proposed Sec.  1026.19(f)(2)(ii). Many 
commenters representing views from across the real estate industry and 
a member of Congress believed $100 was inadequate, as discussed above. 
A trade association representing the settlement service provider 
industry believed the threshold should be based on costs that are 
significant enough that the consumer would need three business days to 
decide whether to continue with the transaction. Many commenters, 
including a member of Congress, recommended that the de minimis 
threshold should be based on a percentage or a ratio relative to the 
loan amount or property value to account for consumers who may have 
different price sensitivities, market diversity, and the effects of 
inflation. Commenters proposed a range of alternatives to the $100 
exemption: a percentage of the loan amount or the sale price of the 
property (commenters suggested thresholds ranging between 0.001 to 1 
percent); a fixed dollar amount (commenters suggested thresholds 
ranging between $200 and $1,000); or the greater of a fixed dollar 
amount or a percentage. Other commenters recommended that the final 
rule allow creditors to guarantee third-party charges so they cannot 
change, provided the rule offers creditors relief from liability under 
RESPA section 8. A large bank and trade associations representing banks 
and financial companies recommended that the rule make the de minimis 
exemption available for any changes in fees, without regard to whether 
they are finance charges or which tolerance level applies to them.
    Commenters recommended that the proposed three-business-day 
redisclosure requirement either be shortened or eliminated. A trade 
association commenter representing the views of mortgage professionals 
and affiliated service providers explained that shortening the timing 
of the Closing Disclosure would allow flexibility rather than 
unnecessary delays due to redisclosure and enforced waiting periods. 
Commenters also recommended that the redisclosure waiting period be 
limited to one day or 24 hours. One settlement agent commenter 
recommended that the final rule eliminate redisclosure waiting periods. 
The commenter believed that any bait-and-switch abuses would be better 
addressed through enforcement actions.
    Requests for clarification. Commenters requested that the Bureau 
clarify several aspects of the proposed redisclosure requirements. A 
community bank commenter requested clarification on whether the Closing 
Disclosure must be provided again at consummation. This commenter was 
concerned that two closings could arise under the rule: one to provide 
the Closing Disclosure and one to sign the final loan documents. One 
individual consumer asked whether the three-business-day waiting period 
would eliminate the three-business-day right of rescission. A large 
bank and two trade associations representing banks and financial 
companies asked whether changes in interest rate or APR, either within 
or outside of the TILA tolerances, would trigger a new three-business-
day period. Commenters also asked whether a new three-business-day 
period would be triggered if a fee was listed in the wrong category on 
the form, if changes were made to the escrowed items, if the consumer 
requests a change to how funds will be disbursed to others, if loan 
principal and periodic payments are reduced slightly, or if a 
creditor's approximate cost of funds calculation changes. One 
settlement agent commenter requested clarification on what would 
constitute a redisclosure. This commenter also requested clarification 
on which party would pay or absorb costs associated with any 
redisclosures. Trade associations representing banks and financial 
companies requested that the Bureau clarify that the de minimis 
threshold exemption at proposed Sec.  1026.19(f)(2)(ii) was an 
aggregate threshold and did not apply to any particular costs.
Final Rule
    The Bureau has considered the comments and ex parte submissions on 
this issue submitted by members of Congress. Based on the extensive and 
detailed comments the Bureau received on the types of changes that can 
occur after the Closing Disclosure is first provided, the final rule 
revises the proposed rule's exemptions to the redisclosure waiting 
period requirement to reduce the risk of unintended and potentially 
harmful consequences for consumers and the real estate market. As 
explained in the section-by-section analyses of Sec.  1026.19(f)(1)(i) 
and (f)(1)(ii)(A) above, the final rule requires that consumers receive 
the Closing Disclosure three business days before consummation. 
However, in response to concerns expressed by commenters about closing 
delays caused by the proposed redisclosure requirement, the final rule 
narrows the triggers for a new three-business-day waiting period for 
changes that may occur after the Closing Disclosure is initially 
provided.
    Under the final rule, if the Closing Disclosure is provided and the 
APR subsequently becomes inaccurate by exceeding the applicable 
tolerance, a corrected Closing Disclosure must be provided to the 
consumer at least three business days before consummation (Sec.  
1026.19(f)(2)(ii)(A)).\239\ In addition, the final rule requires 
redisclosure with a new three-business-day waiting period in two 
circumstances not currently provided for in Regulation Z: where the 
loan product changes (Sec.  1026.19(f)(2)(ii)(B)) and where a 
prepayment penalty is added (Sec.  1026.19(f)(2)(ii)(C)). The Bureau 
believes that a requirement that limits a redisclosure waiting period 
to these three situations in this final rule appropriately balances the 
consumer benefits of advance disclosure against the potential costs 
associated with a redisclosure waiting period.
---------------------------------------------------------------------------

    \239\ Currently, corrected TILA disclosures must be provided to 
the consumer at least three business days before consummation if the 
previously disclosed APR becomes inaccurate. See Sec.  
1026.19(a)(2)(ii). The final rule generally maintains this trigger, 
although the final rule applies the redisclosure requirement to the 
Closing Disclosure under final Sec.  1026.19(f)(2)(ii)(A).
---------------------------------------------------------------------------

    While the proposed redisclosure requirement and narrow exemptions 
would provide a major incentive for industry to finalize settlement 
costs earlier in the process, the Bureau is concerned that creditors or 
settlement agents may not be in a position to ensure that all such 
costs will be known with certainty by the time the Closing Disclosure 
is first delivered. The breadth and specificity of comments on this 
issue demonstrated that settlement costs derive from a multitude of 
sources, including third-party lenders, local government entities, 
sellers, homeowners' associations, and a host of third-party settlement 
service providers; and such costs may change based on events outside 
the control of any one party. Further, the Bureau is concerned that the 
proposed redisclosure requirement and narrow exemptions could prevent 
consumers from making adjustments or informed purchases when it may be 
in their interest, or even necessary, to do so. For example, as some 
commenters noted, the cash to close amount could increase above the de 
minimis exemption if a consumer requests a smaller principal loan 
amount before consummation in exchange for making a larger down 
payment.

[[Page 79875]]

    Accordingly, the final rule narrows the circumstances under which 
changes between the initial provision of the Closing Disclosure and 
consummation will trigger an additional three-business-day waiting 
period. The final rule omits proposed Sec.  1026.19(f)(2)(i) and 
(f)(2)(ii) and instead revises the three-business-day waiting period 
redisclosure triggers to three specific circumstances: the 
transaction's previously disclosed APR becomes inaccurate, the loan 
product changes, or a prepayment penalty provision is added to the 
transaction. Thus, if one of those events occurs between the time the 
initial Closing Disclosure is provided and consummation, the creditor 
must provide a corrected Closing Disclosure with all changed terms, and 
must ensure that the consumer receives the disclosure three business 
days before consummation. These events are described in final Sec.  
1026.19(f)(2)(ii). If changes for any other reason occur after the 
initial Closing Disclosure is provided, the creditor must provide a 
corrected Closing Disclosure reflecting any changed terms to the 
consumer so that the consumer receives the corrected disclosures at or 
before consummation, pursuant to Sec.  1026.19(f)(2)(i).
    Difficulties associated with a de minimis exemption. The final rule 
does not include the proposed de minimis exemption for changes in 
closing costs in light of comments received and the difficulty in 
identifying an appropriate dollar threshold. Commenters provided 
extensive feedback demonstrating why designing a reliable de minimis 
exemption would be difficult, and they identified a large number of 
factors that might influence changes in closing costs. However, as the 
Bureau noted in the proposal's analysis under section 1022 of the Dodd-
Frank Act, the Bureau lacks reliable market-wide data of the types, 
size, or frequency of costs that typically change between the early 
TILA disclosure and RESPA GFE and the disclosures provided at 
consummation. The Bureau appreciates that increases in costs before 
consummation vary based on a variety of factors, including those 
dependent on local custom. The extent of these variables complicates 
the development of a reliable threshold.
    Changes requiring a new three-business-day waiting period before 
consummation. In light of the potentially serious consequences of 
delayed closings for all parties to a transaction and the market 
generally, the Bureau believes a mandatory redisclosure waiting period 
should be limited to situations that have the potential to impose 
significant, long-term financial impacts on consumers. Unlike one-time 
costs paid at settlement, these changes can impose costs that can carry 
significant, long-term consequences for consumers, such as higher 
interest rates, an adjustable rate feature for which consumers may be 
unprepared, or a prepayment penalty that could preclude 
refinancing.\240\ In addition, because changes to the loan product and 
the addition of a prepayment penalty involve complex decisions that 
affect consumers over the life of the loan, the Bureau believes 
consumers will benefit from having sufficient time to consider whether 
to accept such changes.\241\
---------------------------------------------------------------------------

    \240\ Although some changes to APR may result from one-time 
costs affecting the finance charge that are paid at consummation, 
APR also is a metric for other long-term costs of credit. It also is 
the metric MDIA relies on to determine when final TILA disclosures 
must be provided three business days before consummation.
    \241\ Research indicates that cognitive processes take more time 
when evaluating changes in terms. See, e.g., Christopher Chabris et 
al., The Allocation of Time in Decision-Making, Journal of the 
European Economic Association (2009) (decision-makers spend more 
time on decisions when their estimates of the value of the best 
option is closer to the estimate of the value of the next best 
option); Mieneke W.H. Weenig and Marleen Maarleveld, The Impact of 
Time Constraint on Information Search Strategies in Complex Choice 
Tasks, Journal of Economic Psychology (2002) (in complex choice 
tasks, screening is based on fewer attributes when time pressure is 
imposed).
---------------------------------------------------------------------------

    As noted in the section-by-section analysis of Sec.  
1026.19(f)(1)(i), settlement agent commenters in support of a general 
three-business-day requirement explained that such a requirement would 
benefit consumers who are surprised at the closing table when they 
discover major changes to their loan product. The Bureau believes this 
rule is likely to encourage creditors to ensure consumers have time to 
consider the tradeoffs involving higher APRs, different loan products, 
or prepayment penalties sufficiently in advance of consummation to 
avoid the risk of closing delays. The final rule therefore limits the 
redisclosure and new waiting period requirements to cases in which a 
loan's previously disclosed APR changes outside of the TILA tolerance, 
the loan product changes, or where a prepayment penalty is added. 
Narrowing the redisclosure triggers to these circumstances will reduce 
the frequency of closing delays and, in light of the other consumer 
protections regarding settlement charges in this final rule, will, on 
balance, benefit consumers.
    Further, the Bureau believes the final rule is in line with the 
goals of other consumer protections advanced by Congress in response to 
the recent financial crisis. Congress recognized the unique risks 
associated with changes to APR in 2008 under MDIA as well as the risks 
posed by certain loan products and prepayment penalties in 2010 under 
the Dodd-Frank Act.\242\ While the regulations adopted in the Bureau's 
2013 ATR Final Rule and May 2013 ATR Final Rule may reduce the 
likelihood that consumers obtaining qualified mortgages will be 
surprised by changes to loan products or the addition of a prepayment 
penalty, they generally will not prevent creditors from extending 
credit with such features. Although these rules will make it less 
likely that such changes will trigger a redisclosure waiting period, 
the Bureau believes the final rule should maintain this protection 
where such changes are not precluded. Moreover, the Bureau is concerned 
that a creditor could extend a qualified mortgage but still make 
certain last-minute changes to the loan product in manner that presents 
a risk to consumers, such as changes to the length of the introductory 
rate period or the frequency of interest rate adjustments, or change 
the loan to a non-qualified mortgage with certain product features that 
present unique risks to consumers.
---------------------------------------------------------------------------

    \242\ See, e.g., Dodd-Frank Act sections 1412, adding TILA 
section 129C(b) (generally defining a ``qualified mortgage'' as one 
that, among other things, does not contain negative amortization, 
interest-only payments, or balloon payments) (15 U.S.C. 1639c(b)); 
Dodd-Frank Act section 1450 (amending the contents of the special 
information booklet under RESPA section 5(b) to include discussion 
of balloon payments, prepayment penalties, and the advantages of 
prepayment) (12 U.S.C. 2604(b)).
---------------------------------------------------------------------------

    The Bureau believes the final rule strikes the appropriate balance 
between protecting consumers from undue delays in closings and from 
bait-and-switch tactics. The Bureau believes the expanded Loan Estimate 
tolerance rules will address bait-and-switch risk by restricting 
certain increases in settlement charges. Under the final rule, loan 
origination charges, required services for which a consumer cannot 
shop, as well as services provided by a creditor's affiliate would be 
subject to a zero percent tolerance. In addition, recording fees and 
required services for which a consumer shops and chooses a non-
affiliate identified by the creditor would be subject to an aggregate 
ten percent tolerance. See section-by-section analyses of Sec.  
1026.19(e)(3)(i) and (ii). The Bureau believes there is limited 
consumer risk with respect to items not covered by the Loan Estimate 
tolerances, such as prepaid interest, insurance premiums, escrowed 
amounts, and settlement costs disclosed pursuant to Sec.  
1026.38(g)(4), which typically involve adjustments and payments related 
to obligations and

[[Page 79876]]

other encumbrances that commonly must be paid as a condition to 
close.\243\
---------------------------------------------------------------------------

    \243\ For example, because prepaid interest is based on an 
underlying interest rate, increases in prepaid interest are 
relatively predictable based on the number of days that still remain 
in the month after closing and the number of days prepaid interest 
accumulates. Additionally, because prepaid interest is a finance 
charge under Regulation Z, revisions to prepaid interest would be 
reflected in the loan's APR, changes to which are governed by TILA's 
three-business-day redisclosure requirement and rescission rules. 
Further, interest rates are locked in many instances, in which cases 
the only variable is the day of closing.
---------------------------------------------------------------------------

    Although the final rule leaves some room for certain charges to 
change before closing without triggering an additional three-business-
day waiting period, the Bureau believes such changes pose less harm to 
consumers than delaying closings because of these changes. For example, 
the final rule does not require a new waiting period for optional 
services for which a consumer shops independently, which costs are not 
subject to a good faith tolerance limit under Sec.  1026.19(e)(3). 
Commenters explained that consumers frequently shop for some of these 
services in the days prior to closing for a number of reasons. For 
example, commenters explained that some consumers wait to purchase an 
owner's title insurance policy, and others purchase unexpected notary 
and courier services that may be necessary in rural areas where 
consumers cannot attend a closing in person, or to accommodate last-
minute child-care or employment obligations. The final rule does not 
require a new waiting period because many of these costs are incurred 
to address unforeseen circumstances, they are generally one-time costs 
that are small relative to the entire transaction, and because 
consumers have an opportunity to shop for these services 
independently.\244\
---------------------------------------------------------------------------

    \244\ With respect to insurance premiums that a consumer shops 
for independently, the Bureau believes other means are available for 
limiting consumer harm, such as a competitive marketplace for 
property insurance premiums, or, in the case of other insurance 
products, advance disclosures that such products are optional. See, 
e.g., Sec.  1026.4(d)(1) and (2) (conditioning the treatment of 
certain credit and property insurance premiums as a ``finance 
charge'' on the provision of advance disclosures); Sec.  
1026.37(g)(4) (Loan Estimate disclosures for owner's title 
insurance).
---------------------------------------------------------------------------

    Exemptions recommended by commenters. Commenters suggested 
additional exemptions that are not included in the final rule. The 
Bureau believes that significant operational challenges could arise if 
the final rule were to include a de minimis threshold and provided for 
a panoply of additional exemptions from the redisclosure waiting period 
(e.g., exemptions for prepaid interest, escrowed amounts, changes to 
the seller's side of the transaction, or consumer-requested changes). 
As noted by several commenters, a final rule that included a long list 
of exemptions could increase regulatory complexity and impose 
substantial compliance costs on industry, especially smaller entities 
that may not have a large compliance staff, but may not provide any 
additional consumer benefit compared to the narrowed triggers the 
Bureau is finalizing. In addition, the Bureau does not believe it is 
practicable to list with specificity every situation that might warrant 
an exemption, and doing so may create confusion and unnecessary closing 
delays.
    Cost of redisclosure. One commenter requested clarification on 
which party would be responsible for paying and absorbing costs 
associated with redisclosures of the Closing Disclosure. Final Sec.  
1026.19(f)(5) provides that no fee may be imposed on any person, as a 
part of settlement costs or otherwise, by a creditor or by a servicer 
(as that term is defined under 12 U.S.C. 2605(i)(2)) for the 
preparation or delivery of the disclosures required under Sec.  
1026.19(f)(1)(i). Other than this provision, Sec.  1026.19(f) does not 
address which party is responsible for paying or absorbing costs 
associated with providing corrected Closing Disclosures.
    Consumer's right to inspect. Current Regulation X Sec.  1024.10(a) 
provides that the settlement agent shall permit the borrower to inspect 
the RESPA settlement statement, completed to set forth those items that 
are known to the settlement agent at the time of inspection, during the 
business day immediately preceding settlement. See 12 CFR 1024.10(a). 
The current Regulation X provision implements RESPA section 4(b)(2).
    In the proposal, the Bureau did not propose retaining this 
requirement because, under the proposed rule, the creditor would have 
been required to deliver the Closing Disclosure three business days 
before consummation, and redisclose with an additional three-business-
day waiting period if any of the actual terms changed, except in very 
limited circumstances described in the section-by-section analysis of 
Sec.  1026.19(f)(2). Thus, under the proposal, the disclosures 
consumers would have received three business days before consummation 
would have been nearly accurate, other than for a narrow set of changes 
permitted under the exemptions in proposed Sec.  1026.19(f)(2). Even if 
changes occurred after the initial Closing Disclosure was provided 
under the proposal, consumers would still have received a nearly 
accurate revised Closing Disclosure three business days before 
consummation. As a result, the Bureau determined that it was 
unnecessary to include the RESPA inspection requirement in the 
integrated disclosures.\245\
---------------------------------------------------------------------------

    \245\ The Bureau noted that certain Dodd-Frank Act amendments 
could be read as overriding the RESPA inspection requirement, but 
did not ground proposed Sec.  1026.19(f)(1)(ii)(A) on such an 
interpretation. See 77 FR 51116, 51175, n.145.
---------------------------------------------------------------------------

    Several industry commenters requested that the Bureau return to the 
one-business-day requirement to inspect the Closing Disclosure. A 
community bank commenter and a trade association representing bank 
compliance officers recommended that the rule include a one-day right 
to inspect as an alternative to a three-business-day redisclosure 
period. The commenters stated that, while providing the Closing 
Disclosure three business days before closing may be beneficial once, 
any changes should be addressed within the three-business-day period 
and could be previewed at least one day before closing without 
necessitating three days repeatedly.
    The Bureau has considered these comments and believes that, in 
light of the changes made in the final rule to the proposed 
redisclosure provisions, it is appropriate to include in the final rule 
a right to inspect the Closing Disclosure one business day before 
consummation. As discussed above, the final rule permits a greater 
range of changes to occur between the time the Closing Disclosure is 
initially provided (three business days before consummation) and 
consummation. Thus, because the Closing Disclosure may change before 
consummation without triggering a new three-business-day waiting 
period, except in the three circumstances discussed above, the Bureau 
believes it is appropriate to implement RESPA section 4, which gives 
borrowers the right to inspect the settlement statement one business 
day before settlement, by giving consumers the right to inspect the 
Closing Disclosure one day before consummation. The Bureau believes 
that implementing this statutory right will reduce the likelihood that 
consumers will be surprised by changes to the Closing Disclosure at the 
point of consummation. Moreover, the Bureau believes a one-day right to 
inspect will be less disruptive to the efficient operation of closings 
than a three-business-day redisclosure requirement.
    For the reasons discussed above, the final rule adopts an 
inspection provision in Sec.  1026.19(f)(2)(i). Under this final rule, 
notwithstanding the requirement to provide corrected disclosures at or 
before consummation,

[[Page 79877]]

the creditor must permit the consumer to inspect the Closing 
Disclosure, completed to set forth those items that are known to the 
creditor at the time of inspection, during the business day immediately 
preceding consummation. The final provision also includes language 
similar to that in current Regulation X Sec.  1024.10(a), stating that 
the creditor may omit from inspection items related only to the 
seller's transaction.
    This provision is similar to current Regulation X Sec.  1024.10(a) 
but differs in certain respects. Unlike the current provision, which 
applies to the ``settlement agent,'' the final rule applies to the 
``creditor.'' The Bureau recognizes that RESPA section 4(b) applies to 
``the person conducting the settlement.'' 12 U.S.C. 2603(b). However, 
the final rule applies this requirement to creditors instead of 
settlement agents because Sec.  1026.19(f)(1)(i) requires that 
creditors provide the Closing Disclosure. Nonetheless, pursuant to 
Sec.  1026.19(f)(1)(v), the settlement agent may fulfill the creditor's 
responsibilities under Sec.  1026.19(f)(2)(i). Comment 19(f)(2)(i)-2 
addresses the settlement agent's role in permitting the consumer the 
right to inspect the Closing Disclosure. Settlement agents are subject 
to the requirements of Sec.  1026.19(f)(1)(v), as discussed in the 
section-by-section analysis of that section above.
    The final rule also uses the term ``consumer'' instead of 
``borrower,'' consistent with the terminology of Regulation Z. In 
addition, unlike the current provision in RESPA and Regulation X, which 
permits borrowers the right to inspect the RESPA settlement statement 
the business day immediately preceding ``settlement,'' the final rule 
permits inspection during the business day immediately preceding 
``consummation.'' The final rule applies this requirement to the 
business day before consummation instead of settlement because the 
final rule requires delivery of the Closing Disclosure at or before 
``consummation.'' See the section-by-section analysis of Sec.  
1026.19(f)(1)(ii)(A). ``Business day'' in this provision is defined 
under Sec.  1026.2(a)(6), as the day on which the creditor's offices 
are open to the public for carrying on substantially all of its 
business functions.'' This definition is substantially similar to the 
definition in Regulation X Sec.  1024.2(b) that is used in the current 
inspection requirement in Regulation X Sec.  1024.10(a). The Bureau 
believes it would be burdensome to require the inspection to occur on 
days creditors may not currently be open for business. See the section-
by-section analysis of Sec.  1026.2(a)(6).
    The final rule does not contain an exemption for certain 
transactions currently implemented in Regulation X Sec.  1024.10(d). 
The current provision in Regulation X provides generally that, when the 
borrower or the borrower's agent does not attend the settlement, or 
when the settlement agent does not conduct a meeting of the parties for 
that purpose, the transaction is exempt from the right to inspect, 
except that the RESPA settlement statement must be mailed or delivered 
as soon as practicable after settlement. The final rule does not 
include this exemption because the final rule requires that the Closing 
Disclosure be provided at or before consummation in all cases, 
regardless of whether an in-person settlement is conducted.
    As discussed in more detail below, pursuant to its authority under 
TILA section 105(a), RESPA section 19(a), Dodd-Frank Act section 
1032(a), and, for residential mortgage loans, Dodd-Frank Act section 
1405(b), the final rule adjusts and modifies the requirement of RESPA 
section 4(b)(2) allowing a one-business-day right to inspect the 
settlement statement from the person conducting the settlement. 
Specifically, the final rule adopts Sec.  1026.19(f)(2)(i) to require 
creditors to permit consumers to inspect the Closing Disclosure, 
completed to set forth those items that are known to the creditor at 
the time of inspection, during the business day immediately before 
consummation, and that the creditor may omit from inspection items 
related only to the seller's transaction.
    The Bureau believes adjusting the application of RESPA section 
4(b)(2) is within its general mandate under Dodd-Frank Act sections 
1032(f), 1098, and 1100A to prescribe integrated disclosures, which 
requires that the Bureau reconcile differences in coverage between the 
two statutes for the disclosure requirements under TILA and sections 4 
and 5 of RESPA. As discussed above in the section-by-section analyses 
of Sec.  1026.19(f)(1)(i) and (f)(1)(v), to satisfy the integration 
mandate, the Bureau must reconcile existing differences between TILA 
and RESPA. Accordingly, the final rule requires generally that the 
creditor provide the Closing Disclosure. RESPA section 4(b) imposes an 
obligation on ``the person who will conduct the settlement'' to permit 
the borrower a right to inspect the forms ``during the business day 
immediately preceding the day of settlement.'' The Bureau believes it 
is necessary to reconcile this requirement with the requirement under 
TILA section 128(b)(2)(D), as amended by MDIA and the Dodd-Frank Act, 
and implemented in this final rule under Sec.  1026.19(f)(1)(i) 
requiring advance delivery of the Closing Disclosure by the creditor.
    Final provisions. Final Sec.  1026.19(f)(2)(i) provides that, 
except as provided in Sec.  1026.19(f)(2)(ii), if the disclosures 
provided under Sec.  1026.19(f)(1)(i) become inaccurate before 
consummation, the creditor shall provide corrected disclosures 
reflecting any changed terms to the consumer so that the consumer 
receives the corrected disclosures at or before consummation. Final 
Sec.  1026.19(f)(2)(i) also provides that, notwithstanding the 
requirement to provide corrected disclosures at or before consummation, 
the creditor shall permit the consumer to inspect the disclosures 
provided under Sec.  1026.19(f)(1)(i), completed to set forth those 
items that are known to the creditor at the time of inspection, during 
the business day immediately preceding consummation, but the creditor 
may omit from inspection items related only to the seller's 
transaction.
    Final Sec.  1026.19(f)(2)(ii) provides that, if one of the 
following disclosures provided under Sec.  1026.19(f)(1)(i) becomes 
inaccurate in the following manner before consummation, the creditor 
shall ensure that the consumer receives corrected disclosures 
containing all changed terms in accordance with the requirements of 
Sec.  1026.19(f)(1)(ii)(A): (A) the annual percentage rate disclosed 
under Sec.  1026.38(o)(4) becomes inaccurate, as defined in Sec.  
1026.22; (B) the loan product is changed, causing the information 
disclosed under Sec.  1026.38(a)(5)(iii) to become inaccurate; or (C) a 
prepayment penalty is added, causing the statement regarding a 
prepayment penalty required under Sec.  1026.38(b) to become 
inaccurate.
    The final rule adopts proposed comment 19(f)(2)(i)-1, modified to 
conform to the final rule, and adopts proposed comments 19(f)(2)(i)-1.i 
and -1.ii substantially as proposed. Proposed comments 19(f)(2)(i)-1.i 
and -1.ii would have provided examples of changes due to consumer-
seller negotiations to illustrate the proposed exemption that was 
designed for that type of scenario. The Bureau believes the proposed 
commentary serves as useful guidance for the final rule because 
consumer-seller negotiations are a common reason that closing costs 
change. This commentary is intended to be illustrative and not 
representative of all changes that may occur prior to consummation. The 
final rule also includes comment 19(f)(2)(i)-1.iii,

[[Page 79878]]

which is similar to proposed comment 19(f)(2)(ii)-1. The comment 
illustrates a scenario in which a consumer-seller negotiation and an 
understated insurance premium cause closing costs to increase but do 
not trigger a new waiting period.
    Comment 19(f)(2)(i)-1 has been revised to conform to final Sec.  
1026.19(f)(2)(i). Comments 19(f)(2)(i)-1.i, -1.ii, and -1.iii also 
include technical revisions to clarify that the creditor must provide 
corrected disclosures so that the consumer receives them at or before 
consummation. Comment 19(f)(2)(i)-2 addresses the consumer's right to 
inspect the Closing Disclosure during the business day before 
consummation. The comment explains that a settlement agent may satisfy 
the requirement to permit the consumer to inspect the disclosures under 
Sec.  1026.19(f)(2)(i), subject to Sec.  1026.19(f)(1)(v).
    Comment 19(f)(2)(ii)-1 contains guidance illustrating when the 
changes specified by Sec.  1026.19(f)(2)(ii)(A) through (C) trigger a 
new waiting period and corrected disclosures. Comment 19(f)(2)(ii)-1.i 
includes examples in which the APR changes. These example are similar 
to existing commentary found in Sec.  1026.19(a)(2)(ii) that implements 
MDIA's timing requirements. Comment 19(f)(2)(ii)-1.i has been modified 
to reflect the requirements of Sec.  1026.19(f)(2), to provide 
additional explanation for why different APRs in the examples would 
necessitate a new waiting period, and technical revisions for clarity. 
Comment 19(f)(2)(ii)-1.ii includes examples where the loan product 
changes, and comment 19(f)(2)(ii)-1.iii includes examples where a 
prepayment penalty is added.
    Final Sec.  1026.19(f)(2)(i) and (ii) and their associated 
commentary are adopted pursuant to the Bureau's legal authority under 
sections 105(a) of TILA, 19(a) of RESPA, 1032(a) of the Dodd-Frank Act, 
and, for residential mortgage transactions, sections 129B(e) of TILA 
and 1405(b) of the Dodd-Frank Act. The Bureau has considered the 
purposes for which it may exercise its authority under section 105(a) 
of TILA and, based on that review, believes that the final rule and 
commentary are appropriate. The final rule and commentary will help 
consumers avoid the uninformed use of credit by ensuring that consumers 
receive disclosures of the actual terms and costs associated with the 
mortgage loan transaction early enough that consumers have sufficient 
time to become fully informed as to changes to APR, changes to the loan 
product, and the addition of a prepayment penalty, which can impose 
long-term costs on consumers. The final rule and commentary also will 
help consumers avoid the uninformed use of credit by requiring that 
they receive corrected disclosures reflecting any changes to the actual 
terms of the transaction at or before consummation, and by requiring 
that consumers be permitted a right to inspect the Closing Disclosure 
for any changes that may occur before consummation. The final rule and 
commentary are consistent with section 129B(e) of TILA because failing 
to provide borrowers with enough time to become fully informed of major 
terms and costs of the transaction is not in the interest of the 
borrower. Similarly, failing to inform borrowers of any changed terms 
at or before consummation is not in the interest of the borrower.
    The final rule and commentary are adopted pursuant to the Bureau's 
authority under sections 105(a) of TILA and 19(a) of RESPA. The Bureau 
believes that the final rule and commentary will carry out the purposes 
of TILA and RESPA by ensuring meaningful disclosure of credit terms, 
more effective advance disclosure of settlement costs, and will result 
in the elimination of kickbacks, referral fees, and other practices 
that tend to increase unnecessarily the costs of certain settlement 
services, consistent with sections 105(a) of TILA and 19(a) of RESPA, 
respectively. The Bureau also has considered the purposes for which it 
may exercise its authority under section 19(a) of RESPA and, based on 
that review, believes that the final rule and commentary are 
appropriate. The final rule and commentary will ensure more effective 
advance disclosure of settlement costs by requiring that creditors 
permit consumers a right to inspect the Closing Disclosure during the 
business day preceding consummation; by requiring that, if settlement 
costs change before consummation, creditors provide a corrected Closing 
Disclosure containing all changed terms at or before consummation; and 
by permitting consumers to make necessary changes affecting the 
settlement of their transactions.
    The final rule and commentary are consistent with Dodd-Frank Act 
section 1032(a) because the features of mortgage loan transactions and 
settlement services will be more fully, accurately, and effectively 
disclosed to consumer in a manner that permits consumers to understand 
the costs, benefits, and risks associated with the mortgage loan and 
settlement services if consumers receive corrected disclosures three 
business days before consummation when changes occur to the transaction 
that can impose significant, long-term risks on consumers. The Bureau 
believes these risks arise where the loan's previously disclosed APR 
becomes inaccurate, the loan product changes, or a prepayment penalty 
is added. In addition, the final rule and commentary are consistent 
with Dodd-Frank Act section 1032(a) because the features of mortgage 
loan transactions and settlement services will be more fully, 
accurately, and effectively disclosed to consumer in a manner that 
permits consumers to understand the costs, benefits, and risks 
associated with the mortgage loan and settlement services, if consumers 
receive the disclosures reflecting all of the terms and costs 
associated with their transactions at or before consummation, and if 
consumers are permitted a right to inspect the disclosures for changed 
terms during the business day before consummation.
    In addition, the Bureau has considered the purposes for which it 
may exercise its authority under section 1405(b) of the Dodd-Frank Act 
and, based on that review, believes that the final rule and commentary 
are appropriate. The final rule and commentary will improve consumer 
awareness and understanding of the mortgage loan transaction by 
ensuring that consumers receive the disclosures reflecting major 
changes to the terms and costs associated with their transactions three 
business days in advance of consummation, by ensuring that consumers 
receive corrected disclosures reflecting any changes to the terms of 
the transaction at or before consummation, and by ensuring that 
consumers have a right to inspect the disclosures reflecting all of the 
terms and costs associated with their transactions during the business 
day before consummation. The final rule and commentary also will be in 
the interest of consumers and in the public interest because the final 
rule and commentary may eliminate the opportunity for bad actors to 
surprise consumers with significant unexpected costs at the closing 
table, when consumers are less able to question such costs. Finally, 
the Bureau also is adopting the final rule and commentary pursuant to 
its authority under sections 1098, 1100A and 1032(f) of the Dodd-Frank 
Act.

19(f)(2)(iii) Changes Due to Events Occurring After Consummation

    The Bureau proposed Sec.  1026.19(f)(2)(iii), which would have 
provided that, if an event occurs after consummation that causes the 
disclosures to become inaccurate, and

[[Page 79879]]

such inaccuracy results solely from payments to a government entity in 
connection with the transaction, the creditor shall deliver corrected 
disclosures to the consumer no later than the third business day after 
the event occurs, provided the consumer receives the corrected 
disclosures no later than 30 days after consummation. The proposal was 
intended to address situations in which some costs are not known with 
absolute certainty until the loan documents are recorded. For example, 
a locality could change its schedule of recording fees, without advance 
notice, the day after the consumer signs the mortgage loan documents, 
but before the documents are recorded. The Bureau stated its belief 
that the final rule should provide flexibility to address this 
occurrence, so that these changes do not trigger an additional three-
day waiting period. The Bureau proposed this provision pursuant to its 
authority under section 105(a) of TILA and section 19(a) of RESPA. 
Proposed comment 19(f)(2)(iii)-1 would have clarified that this 
provision applies to payments imposed by government entities, such as 
taxes, recording fees, and other taxes related to the real estate 
transaction, and provided several illustrative examples. The Bureau 
solicited feedback on whether changes, other than payments to 
government entities, may occur after the real estate closing, and 
whether the regulation should provide additional flexibility for such 
changes.
Comments
    The Bureau received public comments and an ex parte submission 
regarding post-consummation redisclosure requirements. Bank commenters 
and a GSE were concerned about creditor liability resulting from post-
consummation redisclosure requirements, given that third-party fee 
changes, including recording fees and other charges, are often outside 
of the creditor's control. Commenters recommended expanding the 
exemption for post-consummation changes beyond government entity 
payments, to cover any post-closing fee that is not under the 
creditor's control, such as settlement agent fees, homeowner's 
association fees, or third-party lender charges on a loan that is being 
refinanced. A trade association representing banks in a midwestern 
State, settlement agent commenters, and trade associations representing 
escrow agents and settlement agents explained that consummation of the 
loan and settlement of the entire transaction may occur at different 
times. Commenters explained that settlement may not end until several 
days after consummation of the loan. Commenters offered a variety of 
examples of events that could occur after consummation but before 
settlement that may cause amounts listed on the Closing Disclosure to 
change in addition to payments to a government entity, such as changes 
made by a consumer and seller during a final walk-through, the 
resolution of title issues, and other third-party charges.
    A large bank and a trade association representing settlement agents 
explained that creditors occasionally understate final charges, but 
frequently will absorb the cost of the understatement. The commenter 
observed that post-closing redisclosure for these types of changes that 
do not affect the consumer will lead to consumer confusion and 
recommended instead requiring post-closing redisclosure only for 
changes that will impact the consumer, i.e., when changes to the 
Closing Disclosure entitle the consumer to a refund.
    A GSE and a large bank explained that creditors frequently do not 
know if a government entity has made a change that would make the 
Closing Disclosure inaccurate during the 30 days after consummation 
because changes are frequently not disclosed until documents are 
stamped and returned. Commenters also explained that documents are 
often not returned until 60-180 days, and sometimes a year, after 
documents are recorded because of delays in government processing. 
Commenters were concerned that complying with the proposal's 30-day 
period after consummation would be infeasible and recommended that the 
final rule extend the deadline and harmonize it with the deadline for 
providing revised disclosures for clerical errors in proposed Sec.  
1026.19(f)(2)(iv). A large bank recommended that a creditor should be 
required to provide a revised disclosure within 30 days of learning of 
an event, rather than within 30 days of consummation. A GSE recommended 
that creditors be required to provide the revised disclosure within 
seven business days of being notified of the issue, regardless of how 
long ago the loan was consummated.
Final Rule
    In general. After considering the comments and ex parte submission 
on this issue, the final rule adopts a requirement to provide corrected 
disclosures for post-consummation events. However, as discussed in more 
detail below, the final rule does not limit such events to changes 
arising from payments to a government entity to account for additional 
changes that may occur after consummation. In addition, the final rule 
modifies the time period in which corrected disclosures must be 
provided.
    There is a clear consumer benefit to disclosing actual costs at or 
before consummation. However, based on comments received, the Bureau 
recognizes that this may simply not be feasible in certain instances. 
The Bureau understands from trade associations representing creditors 
and settlement agents that, in certain jurisdictions, consummation can 
occur several days before settlement concludes.
    RESPA section 4 provides that the settlement statement shall 
contain the amount imposed upon the consumer in connection with the 
settlement, and Regulation X Sec.  1024.8(b)(1) sets forth the general 
rule that the settlement agent shall state the actual charges paid by 
the borrower and seller on the RESPA settlement statement. However, 
RESPA, Regulation X, and the HUD RESPA FAQs do not directly address 
subsequent revisions to the RESPA settlement statement, other than for 
correcting inadvertent or technical errors or curing tolerance 
violations. Thus, RESPA and Regulation X provide flexibility to account 
for the variety of settlement practices across the country.\246\ 
Furthermore, Regulation Z also provide flexibility for changes that may 
occur after a disclosure is provided. Regulation Z Sec.  1026.17(e) 
currently provides that events that occur subsequent to the provision 
of a disclosure do not render the disclosure inaccurate, but that 
redisclosure under certain circumstances may be required.
---------------------------------------------------------------------------

    \246\ See, e.g., RESPA section 4(a) (``The Bureau may, by 
regulation, permit the deletion from the forms prescribed under this 
section of items which are not, under local laws or customs, 
applicable in any locality'') (12 U.S.C. 2603(a)) and 12 CFR 
1024.10(d) (exemption, in certain circumstances, from inspection and 
delivery requirements of the RESPA settlement statement where the 
borrower or borrower's agent does not attend the settlement, or when 
the settlement agent does not conduct a meeting of the parties for 
that purpose).
---------------------------------------------------------------------------

    In integrating TILA's and RESPA's disclosure requirements, the 
Bureau believes it is appropriate for the final rule to provide 
flexibility to account for post-consummation events that may make 
earlier disclosures inaccurate to reflect the variety of settlement 
practices across the country. Without a more flexible exception to 
account for post-consummation changes, the Bureau is concerned that 
creditors and settlement agents may face compliance difficulties with 
disclosing the ``actual terms'' of the transaction at or before 
consummation, but before settlement is concluded.

[[Page 79880]]

Concern about liability risk may create unnecessary inefficiencies and 
disrupt the consumer's and seller's transactions.
    Post-consummation events requiring redisclosure. As discussed 
above, the Bureau intends for Sec.  1026.19(f)(2)(iii) to account for 
changes that may occur during the normal settlement process after the 
point of ``consummation'' of the credit transaction. Accordingly, the 
rule refers to ``events in connection with the settlement of the 
transaction'' to reflect similar language in RESPA section 4(a), which 
requires that the RESPA settlement statement itemize all charges ``in 
connection with the settlement.'' 12 U.S.C. 2603(a).
    Section 1026.19(f)(2)(iii) provides only for revisions for 
inaccuracies due to events occurring after consummation. Inaccuracies 
due to events occurring at or before consummation are covered by the 
other provisions of Sec.  1026.19(f)(1)(i), (f)(2)(i), and (f)(2)(ii). 
The Bureau expects creditors and, as applicable, settlement agents, 
will conduct due diligence to ensure the Closing Disclosure contains 
accurate information at or before consummation, consistent with the 
requirements of Sec.  1026.19(f). As discussed in the section-by-
section analysis of Sec.  1026.19(f)(1)(v) above, creditors may divide 
responsibility for providing the Closing Disclosure with settlement 
agents.
    The final rule requires redisclosure only for post-consummation 
events that change an amount actually paid by the consumer. The Bureau 
does not believe consumers would benefit from revisions to the Closing 
Disclosure due to post-consummation events that do not affect charges 
imposed on them. Further, the Bureau believes this approach is 
consistent with RESPA and Regulation X. RESPA section 4 provides that 
the settlement statement shall contain the amount imposed upon the 
consumer in connection with the settlement. Regulation X Sec.  
1024.8(b)(1) provides the general rule that the settlement agent shall 
state the actual charges paid by the borrower and seller on the RESPA 
settlement statement. Thus, the Bureau believes a redisclosure to the 
consumer after consummation should be required only if a subsequent 
event changes a charge actually paid by the consumer and not for any 
change to the transaction.
    The final rule imposes a redisclosure requirement based on changes 
attributable to post-consummation events occurring during the 30-day 
period following consummation. The Bureau believes a 30-day period will 
account for most events that would change the amount actually paid by 
the consumer and will provide flexibility to account for the variety of 
settlement practices across the country. The Bureau believes a 30-day 
period to identify post-consummation events is sufficient in light of 
comments and its understanding of current industry practice.
    Several commenters, including a GSE and a large bank provided 
feedback that backlogs in county recorder's offices have resulted in 
delays of several months or, in some cases, a year. To address this 
issue, commenters recommended that the final rule require that 
creditors provide corrected disclosures within some period of time 
(e.g., seven or 30 days) of being notified of a change to the actual 
terms of the transaction, without regard to how long after consummation 
such event occurs. The Bureau recognizes that the charges for some 
items, such as recording fees, may not be known with certainty until 
several months, and sometimes a year, after consummation. However, 
final Sec.  1026.19(f)(2)(iii) does not provide for a long-term or 
open-ended period to account for changes to the Closing Disclosure 
because the Bureau does not believe such a requirement would provide 
significant consumer benefit in relation to the potential burden. The 
Bureau is concerned that such a requirement would impose costly ongoing 
compliance costs on creditors to monitor and analyze all activity that 
may increase an amount actually paid by the consumer in connection with 
the settlement of the transaction.
    30-day period for providing corrected disclosures. The Bureau 
understands that creditors will not necessarily know an event has 
occurred that may make the Closing Disclosure incorrect at the time the 
event occurs. Accordingly, the final rule requires redisclosure not 
later than 30 days after the creditor's receipt of information 
sufficient to establish that such an event in connection with the 
settlement of the transaction has occurred. Under final Sec.  
1026.19(f)(2)(iii), if during the 30-day period following consummation, 
an event in connection with the settlement of the transaction occurs 
that causes the disclosures provided under Sec.  1026.19(f)(1)(i) to 
become inaccurate, the creditor must deliver or place in the mail 
corrected disclosures to the consumer not later than 30 days after 
receiving information sufficient to establish that such event has 
occurred. The language regarding information sufficient to establish 
that an event in connection with the settlement of the transaction 
operates in the same manner as the standard that applies to creditors 
in the context of providing revised Loan Estimates under Sec.  
1026.19(e)(4)(i).
    Unlike the standard in Sec.  1026.19(e)(4)(i), which requires 
creditors to provide revised disclosures within three business days of 
receiving sufficient information to establish that an event has 
occurred, final Sec.  1026.19(f)(2)(iii) provides that the creditor may 
provide corrected disclosures not later than 30 days after receiving 
information sufficient to establish an event has occurred. The Bureau 
believes a 30-day period balances creditors' interests in having 
sufficient time to process revisions to the Closing Disclosure with the 
interests of consumers in receiving corrected disclosures within a 
reasonable time after an event occurs. The Bureau also believes a 30-
day period is reasonable in light of existing requirements under 
Regulation X that impose a 30-day deadline after settlement to cure 
tolerance violations and correct technical errors. Thus, the Bureau 
believes industry already has systems in place for conducting quality-
control reviews during this period.
    The 30-day period also is intended to harmonize the time period 
creditors have to cure tolerance violations that may arise due to 
events after consummation during the course of settlement under final 
Sec.  1026.19(f)(2)(v). The Bureau believes this will reduce the number 
of corrected disclosures consumers may receive after consummation. Some 
post-consummation events covered by Sec.  1026.19(f)(2)(iii) that cause 
the Closing Disclosure to become inaccurate also may be a tolerance 
violation for which a creditor provides a cure under Sec.  
1026.19(f)(2)(v). As discussed in more detail in the section-by-section 
analysis of Sec.  1026.19(f)(2)(v), creditors must provide corrected 
disclosures to cure a tolerance violation no later than 60 days after 
consummation. Thus, where a creditor learns of a tolerance violation 
attributable to a post-consummation event during the 30-day period 
after consummation, it would comply with Sec.  1026.19(f)(2)(iii) and 
(f)(2)(v) by providing the consumer with a corrected Closing Disclosure 
that reflects the tolerance cure not later than 30 days after receiving 
information sufficient to establish that the event has occurred. In 
addition to accommodating the 60-day period under Sec.  
1026.19(f)(2)(v), the 30-day period under Sec.  1026.19(f)(2)(iii) 
accommodates the 60-day period under Sec.  1026.19(f)(2)(iv) for 
providing corrected disclosures correcting non-numeric clerical errors. 
Thus, the Bureau believes the 30-day period for

[[Page 79881]]

providing corrected disclosures under Sec.  1026.19(f)(2)(iii) will 
facilitate compliance and reduce the number of corrected disclosures 
received by consumers after consummation.
    Final provisions. For the aforementioned reasons, the Bureau is 
adopting Sec.  1026.19(f)(2)(iii) to provide that if during the 30-day 
period following consummation, an event in connection with the 
settlement of the transaction occurs that causes disclosures required 
under Sec.  1026.19(f)(1)(i) to become inaccurate, and such inaccuracy 
results in a change to an amount actually paid by the consumer from 
that amount disclosed under Sec.  1026.19(f)(1)(i), the creditor shall 
deliver or place in the mail corrected disclosures within 30 days of 
receiving information sufficient to establish that such event has 
occurred. The final rule and commentary use the term ``corrected 
disclosures'' rather than ``revised disclosures'' to reflect the 
terminology currently used with respect to the final TILA disclosures 
in Regulation Z and for greater consistency throughout Sec.  
1026.19(f). In addition, for consistency with other requirements under 
Sec.  1026.19(e) and(f), the final rule also requires that the creditor 
deliver or place in the mail the Closing Disclosure.
    The final rule adopts comment 19(f)(2)(iii)-1 with revisions to 
conform to the final rule as adopted. The comment restates Sec.  
1026.19(f)(2)(iii) and contains a cross-reference to comment 
19(e)(4)(i)-1 for additional guidance on when sufficient information 
has been received to establish that an event has occurred for the 
purposes of Sec.  1026.19(f)(2)(iii). The comment generally adopts the 
proposed examples illustrating the original provision, but has made 
conforming changes to reflect the revised timing requirements 
applicable to Sec.  1026.19(f)(2)(iii) and to illustrate how Sec.  
1026.19(f)(2)(iii) interacts with other provisions of the final rule.
    Comment 19(f)(2)(iii)-1.i makes a technical revision and omits 
language from the example in proposed comment 19(f)(2)(iii)-1.i that 
would have illustrated the discovery of a fee change on the 28th day 
after consummation. This example is inapplicable in light of the 
revision to the timing requirement in Sec.  1026.19(f)(2)(iii). Comment 
19(f)(2)(iii)-1.ii makes a technical revision and revises the example 
of proposed comment 19(f)(2)(iii)-1.ii in which transfer taxes owed to 
the State differ from those previously disclosed to illustrate the 
timing requirements of final Sec.  1026.19(f)(2)(iii) and the 
interaction of this provision with final Sec.  1026.19(f)(2)(v) in 
which a cure for a tolerance violation is provided.
    Comment 19(f)(2)(iii)-1.iii modifies the example in proposed 
comment 19(f)(2)(iii)-1.iii, in which a $500 nuisance abatement 
assessment is discovered after consummation. The comment revises the 
example to illustrate a scenario in which the post-consummation event 
does not result in a change to an amount actually paid by the consumer, 
but does result in such a change for the seller, pursuant to Sec.  
1026.19(f)(4)(ii). Comment 19(f)(2)(iii)-1.iv includes revised language 
to clarify further the example in which the municipality in which the 
property is located raises property tax rates ten days after 
consummation. The comment clarifies that the scenario illustrated is 
one in which property taxes are raised ``effective after the date on 
which the settlement concludes.'' The comment explains that Sec.  
1026.19(f)(2)(iii) does not require the creditor to provide the 
consumer with corrected disclosures because the increase in property 
tax rates is not in connection with the settlement of the transaction.
    Final Sec.  1026.19(f)(2)(iii) and its associated commentary will 
prevent circumvention and evasion of, and will facilitate compliance 
with, TILA, by ensuring that consumers receive corrected disclosures of 
the final terms and costs of the transaction, consistent with section 
105(a) of TILA. The final rule and commentary are also adopted pursuant 
to the Bureau's authority to implement section 4 of RESPA, consistent 
with section 19(a) of RESPA.
19(f)(2)(iv) Changes Due to Clerical Errors
    Regulation X Sec.  1024.8(c) generally provides that an inadvertent 
or technical error in completing the RESPA settlement statement shall 
not be deemed a violation of section 4 of RESPA if a revised settlement 
statement is provided within 30 calendar days after settlement. Section 
130(c) of TILA provides that creditors and assignees cannot be liable 
for bona fide errors, including clerical errors. TILA section 130(b) 
contains a general cure provision, which relieves creditors of civil 
liability under certain circumstances, including if, within 60 days of 
identifying an error, the creditor notifies the person concerned and 
makes whatever adjustments are necessary.\247\ RESPA does not contain a 
general cure provision. Proposed Sec.  1026.19(f)(2)(iv) would have 
provided that a creditor does not violate Sec.  1026.19(f)(1)(i) if the 
disclosures contain non-numeric clerical errors, provided the creditor 
delivers corrected disclosures as soon as reasonably practicable and no 
later than 30 days after consummation. The Bureau proposed this 
provision pursuant to its authority under sections 105(a) of TILA and 
19(a) of RESPA. Proposed comment 19(f)(2)(iv)-1 would have clarified 
that clerical errors are errors such as typographical errors, or other 
minor errors that do not affect the amount owed by the consumer. The 
Bureau solicited feedback on whether the regulations should provide 
flexibility for numeric clerical errors, and how such flexibility could 
be provided without undermining the reliability of the disclosures 
provided to consumers at or before consummation.
---------------------------------------------------------------------------

    \247\ ``A creditor or assignee has no liability under this 
section or section 108 or section 112 for any failure to comply with 
any requirement imposed under this chapter or chapter 5, if within 
sixty days after discovering an error, whether pursuant to a final 
written examination or notice issued under section 108(e)(1) or 
through the creditor's or assignee's own procedures, and prior to 
the institution of an action under this section or the receipt of 
written notice of the error from the obligor, the creditor or 
assignee notifies the person concerned of the error and makes 
whatever adjustments in the appropriate account are necessary to 
assure that the person will not be required to pay an amount in 
excess of the charge actually disclosed, or the dollar equivalent of 
the annual percentage rate actually disclosed, whichever is lower.'' 
15 U.S.C. 1640(b).
---------------------------------------------------------------------------

Comments
    Commenters requested that the Bureau provide more definitions and 
clarification of Sec.  1026.19(f)(2)(iv). Two consumer advocacy groups 
submitting a joint comment requested that the Bureau clarify that a 
clerical error under Sec.  1026.19(f)(2)(iv) should not include any 
error regarding the ``actual terms of the transaction.'' They also 
stated that if an error is discovered before consummation, a revised 
disclosure should be provided no later than consummation. The 
commenters recommended that the final rule include in commentary an 
example of a non-numeric error that would not be considered 
``clerical'' that would require redisclosure before consummation.
    A GSE explained that it is not uncommon that clerical errors are 
noticed months after consummation when a loan file undergoes quality-
control review by a secondary market investor. The commenter 
recommended that the timing of Sec.  1026.19(f)(2)(iv) should be 
harmonized with Sec.  1026.19(f)(2)(iii), and that creditors should be 
required to provide a revised disclosure within seven business days of 
being notified of the error, regardless of how long after consummation 
the error was discovered. A trade

[[Page 79882]]

association representing banks requested that the cure period be 
extended from 30 days to 90 days to account for quality control cycles.
    In addition to non-numeric errors, commenters requested that the 
rule address numeric errors. A large bank requested that new exception 
should be added for redisclosures required due to numerical 
typographical errors, without any dollar amount or other threshold. A 
title insurance company stated that the rule should provide flexibility 
for ``numeric clerical errors,'' subject to the Bureau's promulgation 
of a specific definition of the term and providing specific examples. 
The commenter recommended that the final rule include a definition of 
``numeric clerical errors'' limited to inadvertent misstatements of 
charges known by or previously disclosed to the consumer, where the 
creditor can document such knowledge. Another title insurance company 
commenter recommended that numeric errors include errors that do not 
affect the consumer. A title insurance company stated that, for 
overstatement and understatement errors, creditors should be required 
to provide a revised Closing Disclosure within the timeframe under 
Sec.  1026.19(f)(2)(iv). A title insurance company stated that, for 
understatement errors, creditors should provide a revised Closing 
Disclosure at or before consummation and be able to collect additional 
amounts owed by the consumer, subject to the proposed $100 de minimis 
threshold.
    A large bank requested that the final rule exempt numerical 
typographical errors, without regard to any dollar amount or threshold, 
such as when a fee correctly stated on the Loan Estimate as a $2,000 
fee is mistakenly stated on the initial Closing Disclosure as a $200 
fee. A trade association representing banks suggested that, if a fee is 
listed in the wrong category of the Closing Disclosure, but the correct 
amount is disclosed, a corrected Closing Disclosure should be provided 
at consummation.
Final Rule
    Final Sec.  1026.19(f)(2)(iv) is adopted substantially as proposed. 
The final rule provides a 60-day period for providing corrected 
disclosures and omits the requirement that creditors provide revised 
disclosures ``as soon as reasonably practicable.'' The final rule 
adopts comment 19(f)(2)(iv)-1 substantially as proposed, modified as 
discussed above and to conform to the final rule.
    By finalizing 1026.19(f)(2)(iv), the Bureau does not intend to 
modify the scope or applicability of TILA section 130(b) or (c), which 
sets forth treatment for errors related to certain disclosures. The 
proposal would have incorporated existing requirements in Regulation X 
that clarify whether certain technical errors constitute a violation of 
RESPA section 4. By finalizing this requirement in Sec.  
1026.19(f)(2)(iv), the Bureau intends only to clarify that a creditor 
does not violate Sec.  1026.19(f)(1)(i) if the creditor corrects a non-
numeric clerical error within the first 60 days of consummation. The 
Bureau does not intend to affect statutory liability provisions for 
other types of errors. Thus, the Bureau does not believe it is 
necessary to define numeric errors and address how they must be cured 
in Sec.  1026.19(f)(2)(iv).
    Moreover, the Bureau does not believe it would be appropriate to 
create a category of ``numeric clerical errors,'' such as those limited 
to inadvertent misstatements of charges known by or previously 
disclosed to the consumer where the creditor can document such 
knowledge. The Bureau does not believe the fact that a charge was 
disclosed in a different manner to a consumer before an incorrect 
disclosure was provided is material for purposes of classifying a 
clerical error. The Bureau is concerned such a classification could 
undermine the value of the disclosures, which consumers should be able 
to rely on for accuracy. The Bureau also declines to classify errors 
based on whether they include errors that affect the consumer. The 
disclosures required under Sec.  1026.19(f)(1)(i) are required because 
they contain information relevant to costs associated with the 
transaction, which inherently affects the consumer.
    The Bureau does not believe correcting non-numeric clerical errors 
will impose a significant compliance burden because curing such errors 
can be done by providing corrected disclosures rather than making 
substantial revisions to the consumer's account. The Bureau also notes 
that it has harmonized the timing requirements for providing corrected 
disclosures under 1026.19(f)(2)(v) in the final rule, to require that 
creditors deliver corrected disclosures documenting a cure for 
tolerance violations no later than 60 days after consummation. The 
Bureau believes this approach will limit the number of corrected 
disclosures received by consumers and will facilitate compliance with 
the disclosure requirements.
    In response to comments, the final rule includes an example of a 
non-numeric error in comment 19(f)(2)(iv)-1 that would not be 
considered ``clerical.'' However, the Bureau declines to clarify that a 
clerical error does not include any error regarding the actual terms of 
the transaction because such language could cause confusion. The 
requirement to disclose the actual terms of the transaction covers a 
wide array of disclosures and Sec.  1026.19(f)(2)(iv) applies to a 
narrow set of errors.
    The final rule revises the proposed 30-day period to a 60-day 
period and removes the condition that revised disclosures be provided 
``as soon as reasonably practicable.'' The Bureau believes harmonizing 
the timing requirements with the timing requirements applicable to 
Sec.  1026.19(f)(2)(v) will facilitate compliance by helping creditors 
coordinate providing corrected disclosures that also set forth cures 
for tolerance violations. As discussed in the section-by-section 
analysis of Sec.  1026.19(f)(2)(v), the Bureau believes a 60-day period 
is warranted to facilitate compliance in jurisdictions in which 
settlement may conclude after consummation. The final rule omits the 
``as soon as reasonably practicable'' language to set forth a clear 
deadline for compliance. The Bureau does not believe removing this 
language or extending the period for providing corrected disclosures 
will harm consumers because the risk posed by disclosures that contain 
a non-numeric, clerical error is minimal.
    The final rule and commentary use the term ``corrected 
disclosures'' rather than ``revised disclosures'' to reflect the 
terminology currently used with respect to the final TILA disclosures 
in Regulation Z and for greater consistency throughout Sec.  
1026.19(f). In addition, for consistency with other provisions of Sec.  
1026.19(f), the final rule also requires the creditor deliver or place 
in the mail a corrected Closing Disclosure.
    Final Sec.  1026.19(f)(2)(iv) and comment 19(f)(2)(iv)-1 will 
prevent circumvention and evasion of, and will facilitate compliance 
with, TILA, by ensuring that consumers receive corrected disclosures 
consistent with section 105(a) of TILA. The final rule and commentary 
also will result in the elimination of kickbacks, referral fees, and 
other practices that tend to increase unnecessarily the costs of 
certain settlement services by ensuring that the consumer's records 
correctly reflect the terms, payments, and entities involved in the 
transaction, consistent with section 19(a) of RESPA.
19(f)(2)(v) Refunds Related to the Good Faith Analysis
    Neither RESPA nor Regulation Z expressly requires creditors to 
refund money to the consumer based on

[[Page 79883]]

variations between the disclosed estimated costs of settlement services 
and the amounts for such settlement services actually paid by the 
consumer at consummation. Regulation X Sec.  1024.7(i), however, 
provides that a lender or mortgage broker violates section 5 of RESPA 
if any charges at settlement exceed the charges listed on the RESPA GFE 
by more than the permitted tolerances, provided, however, that the loan 
originator may cure the tolerance violation by reimbursing to the 
borrower the amount by which the tolerance was exceeded at settlement 
or within 30 calendar days after settlement. As noted above, section 
130 of TILA has a similar provision, with respect to civil liability, 
which relieves creditors and assignees of civil liability under certain 
circumstances, including if, within 60 days of identifying an error, 
the creditor notifies the person concerned and makes whatever 
adjustments are necessary to assure that the person will not be 
required to pay an amount in excess of the charge actually disclosed.
    Accordingly, proposed Sec.  1026.19(f)(2)(v) would have provided 
that, if amounts paid by the consumer exceed the amounts specified 
under Sec.  1026.19(e)(3)(i) or (ii), the creditor complies with Sec.  
1026.19(e)(1)(i) if the creditor refunds the excess to the consumer as 
soon as reasonably practicable and no later than 30 days after 
consummation, and the creditor complies with Sec.  1026.19(f)(1)(i) if 
the creditor provides revised disclosures that reflect such refund as 
soon as reasonably practicable and no later than 30 days after 
consummation. The Bureau proposed this provision pursuant to its 
authority under sections 105(a) of TILA, 19(a) of RESPA, and, with 
respect to residential mortgage loans, section 1405(b) of the Dodd-
Frank Act.
    Proposed comment 19(f)(2)(v)-1 would have discussed refunds related 
to the good faith analysis. The proposed comment would have explained 
the requirement under Sec.  1026.19(f)(2)(v) providing that, if amounts 
paid by the consumer exceed the amounts specified under Sec.  
1026.19(e)(3)(i) or (ii), the creditor does not violate Sec.  
1026.19(e)(1)(i) if the creditor delivers disclosures revised to 
reflect the refund of such excess as soon as reasonably practicable and 
no later than 30 days after consummation. This proposed comment also 
would have included illustrative examples of these requirements.
Comments
    Several commenters believed that the cure period was too narrow, 
would not give creditors sufficient time to conduct audit reviews or 
provide an incentive to cure violations after the 30-day period, and 
appeared arbitrary. Commenters explained that mortgage lending is a 
cyclical business and a 30-day period would be too short when lending 
is active. A large bank commenter stated that a 30-day period could 
prove impracticable when a creditor is reviewing loans purchased from a 
correspondent lender. The commenter stated that the Bureau proposed to 
adopt the Regulation X 30-day cure period but did not explain why it 
did not adopt TILA's cure period or offer any data that would suggest 
the period under TILA section 130 did not provide adequate consumer 
protection.
    Bank and trade associations representing banks and financial 
companies also requested that the cure period be measured from the 
discovery of an error rather than from consummation, consistent with 
TILA section 130. Commenters explained that certain violations are 
known at or before consummation, so the cure period would be measured 
from that point in time. Commenters also explained that cure periods 
measured more than 30 days from consummation would provide an incentive 
for creditors to correct errors discovered as part of quality control 
testing that occurs more than 30 days after consummation. One large 
bank commenter recommended that cures be provided within 30 days of 
discovery of an error. A community bank holding company commenter 
stated that a 90-day period would give creditors additional time to 
conduct audit reviews. A large bank and a trade association 
representing banks and financial companies recommended a cure period 
from the date an error is discovered, consistent with TILA section 130. 
Several commenters recommended a 60-day cure period measured from the 
discovery of an error. A trade association representing banks and 
financial companies, a community bank, and a law firm commenter 
believed that a 90-day cure period was appropriate, for example, to 
account for periods of more active mortgage lending and in light of 
changes in industry practice that have extended quality control periods 
to comply with additional regulations. A trade association representing 
banks and financial companies requested that the final rule distinguish 
between intentional and unintentional violations and that an extended 
cure period be permitted for unintentional violations.
    A consumer advocacy group commenter stated that creditors should be 
limited to correcting errors before litigation or rescission, and that 
the final rule should clarify that creditors may only correct errors 
before the consumer notifies the creditor of an error. The commenter 
explained that, absent clarification, there would likely be litigation 
over what constitutes a good faith error and what notice to a creditor 
triggers the time period for the creditor to correct the error without 
facing liability. The commenter believed that such a rule would help 
consumers exercise the right of rescission because it would prevent 
creditors from making a correction to avoid triggering rescission 
rights. The commenter also requested that the final rule contain a 
presumption that systemic errors are not good faith errors because such 
errors are unlikely to arise in the presence of adequate policies and 
procedures.
    Two consumer advocacy groups submitting a joint comment requested 
clarification on how refunds would be provided to prevent unjust 
enrichment by creditors that exceed the good faith estimate tolerances 
when a consumer finances closing costs. The commenters were concerned 
that, if the creditor simply issues a cash refund, the consumer would 
continue paying interest on the financed closing costs. The commenters 
set forth an example in which a borrower finances $100 of closing costs 
in a 30-year mortgage loan having an eight percent fixed annual rate, 
and the creditor sends the consumer a $100 refund check, illustrating 
that the creditor will still earn $240 on that refund over the life of 
the loan unless the borrower sends an extra $100 payment to her 
mortgage servicer.
    The commenters explained that typical consumers are unlikely to 
realize they must use the refund check to pay down the loan to avoid 
being charged additional interest. The commenters recommended that the 
final rule add a requirement specifying that, whenever a consumer 
finances any closing costs, the creditor must apply any refund as a 
credit against the principal balance of the loan, up to the amount of 
closing costs financed.
    Commenters also requested clarification on the mechanics for 
tolerance cures. A community bank commenter asked whether a revised 
Closing Disclosure must be provided with the refund. A trade 
association representing banks and financial companies requested that 
the final rule clarify whether settlement agents may

[[Page 79884]]

cure a tolerance violation. A law firm commenter asked that the final 
rule clarify that a person's non-compliance with the rule during the 
cure period would not constitute a violation.
Final Rule
    The Bureau has considered the comments on this issue and has 
determined to finalize Sec.  1026.19(f)(2)(v) with a 60-day period as 
the deadline for providing refunds for tolerance cures and corrected 
disclosures reflecting the refund. While Regulation X Sec.  1024.7(i) 
permits loan originators to cure tolerance violations by reimbursing to 
the borrower the amount by which the tolerance was exceeded at 
settlement or within 30 calendar days after settlement, the Bureau 
believes a 60-day period, measured from consummation, is warranted in 
light of the revisions to Sec.  1026.19(e)(3) with respect to the good 
faith estimate requirements and to Sec.  1026.19(f)(2)(iii) with 
respect to post-consummation events.
    Under Sec.  1026.19(e)(3)(i), an estimated closing cost disclosed 
pursuant to Sec.  1026.19(e) is in good faith if the charge paid by or 
imposed on the consumer does not exceed the amount originally disclosed 
under Sec.  1026.19(e)(1)(i), except as otherwise provided in Sec.  
1026.19(e)(3)(ii) through (iv). Comment 19(e)(3)(i)-2 clarifies that, 
for purposes of Sec.  1026.19(e), a charge ``paid by or imposed on the 
consumer'' refers to the final amount for the charge paid by or imposed 
by the consumer at consummation or settlement, whichever is later. 
Thus, in jurisdictions where settlement occurs after consummation, some 
tolerance violations may not be known until some time after 
consummation. The Bureau believes creditors in those jurisdictions 
should be permitted to have sufficient time to provide refunds for 
tolerance violations that may not be known until after consummation, 
and that a 60-day period after consummation will account for 
jurisdictions in which settlement occurs after consummation.
    Because Regulation X currently provides creditors a 30-day period 
after ``settlement'' to cure tolerance violations, the Bureau believes 
a 60-day period after consummation under the final rule will give all 
creditors sufficient time to cure tolerance violations. As discussed in 
the section-by-section analysis of Sec.  1026.19(f)(2)(iii), creditors 
may need to make revisions for subsequent events occurring within 30 
days after consummation. Because a revision under Sec.  
1026.19(f)(2)(iii) may result in a tolerance violation, the Bureau 
believes it is necessary to ensure creditors have a 30-day period to 
cure such violations and provide corrected disclosures.
    The Bureau believes that providing creditors with sufficient time 
to obtain revised cost information, revise the integrated disclosures, 
prepare payments for such revised costs or the cures to be paid to 
consumers, and deliver such payments to consumers will facilitate 
compliance and ensure accurate disclosures and payments for consumers. 
The final rule also removes the condition that refunds and revised 
disclosures be provided ``as soon as reasonably practicable,'' which 
the Bureau believes will facilitate compliance by establishing a 
bright-line standard by which revised disclosures must be mailed or 
delivered.
    The Bureau does not believe lengthening the cure period to 60 days 
after consummation will significantly undermine an existing consumer 
protection because it is synchronous with the cure period under TILA 
section 130(b) for errors corrected within 60 days of discovery of the 
error and because the cure will be provided in the form of a refund. 
The final rule does not extend the cure period further than 60 days 
after consummation or measure it from a date other than consummation. 
The Bureau believes that doing so would undermine the incentive for 
creditors to conduct quality control reviews as soon as reasonably 
practicable after consummation. In addition, the Bureau notes that 
creditors currently must provide tolerance cures within 30 days of 
settlement under Regulation X Sec.  1024.7(i). Accordingly, a 60-day 
period after consummation may ease burden on creditors.
    The final rule does not adopt different rules for curing 
intentional and unintentional violations. While TILA section 130(c) 
contains special liability provisions for unintentional violations, the 
Bureau does not believe it would be appropriate to condition tolerance 
cures based on whether a violation was intentional. The Bureau believes 
an objective, bright-line standard serves the interests of consumers, 
the supervisory activities of regulatory agencies, and industry 
compliance better than a timing standard that depends on a fact-
intensive inquiry.
    The final rule does not expressly limit a creditor's ability to 
correct errors to situations before a consumer has notified the 
creditor of the error. The Bureau has determined to follow the current 
Regulation X cure provision for increases beyond the limitations set 
forth in Sec.  1026.19(e)(3), which does not contain the type of 
limitation requested by the commenter. As noted above, the Bureau is 
not seeking to alter the liability provisions under TILA.
    For the aforementioned reasons, the final rule adopts a 60-day 
period for curing tolerance violations and providing revised 
disclosures. The final rule removes the proposed requirement that the 
disclosures be provided ``as soon as reasonably practicable.'' Final 
Sec.  1026.19(f)(2)(v) provides that, if amounts paid by the consumer 
exceed the amounts specified under Sec.  1026.19((e)(3)(i) or (ii), the 
creditor complies with Sec.  1026.19(e)(1)(i) if the creditor refunds 
the excess to the consumer no later than 60 days after consummation, 
and the creditor complies with Sec.  1026.19(f)(1)(i) if the creditor 
delivers or places in the mail corrected disclosures that reflect such 
refund no later than 60 days after consummation. The Bureau adopts 
comment 19(f)(2)(v)-1, revised to conform to the final rule. In 
addition, for clarity, the example in the comment has been modified to 
use the term ``consummation'' instead of ``closing,'' and explains how 
the creditor in this example complies with Sec.  1026.19(e)(1)(i) and 
(f)(1)(i) where a tolerance cure and corrected disclosures must be 
provided. The final rule and commentary use the term ``corrected 
disclosures'' rather than ``revised disclosures'' to reflect the 
terminology currently used with respect to the final TILA disclosures 
in Regulation Z and for greater consistency throughout Sec.  
1026.19(f). In addition, for consistency with other requirements under 
Sec.  1026.19(f), the final rule requires the creditor to deliver or 
place in the mail the corrected Closing Disclosure.
    Commenters asked whether settlement agents may cure tolerance 
violations. Under the final rule, although creditors are responsible 
for complying with the good faith tolerance requirements and are 
responsible for providing cures, see Sec.  1026.19(e)(3), settlement 
agents may provide revised disclosures in accordance with Sec.  
1026.19(f)(1)(v).
    Commenters asked how tolerance cures would be documented on revised 
disclosures, and some commenters requested that the final rule provide 
clarification on how refunds must be provided in the event that a 
creditor exceeds tolerances when a consumer finances closing costs. If 
the amounts paid by the consumer exceed the amounts specified under 
Sec.  1026.19(e)(3)(i) or (e)(3)(ii), Sec.  1026.19(f)(2)(v) requires 
the creditor to refund the excess to the consumer. Comment 19(f)(2)(v)-
1 includes a cross-reference to comment 38(h)(3)-2, which provides 
guidance on disclosing

[[Page 79885]]

refunds. With respect to providing refunds where closing costs are 
financed, as described by commenters, the Bureau does not believe it is 
practicable to provide guidance on the variety of situations in which 
refunds may be provided, particularly because consumers may have 
different preferences for how they wish to apply refunds.
    A commenter asked that the final rule clarify that a person's non-
compliance with the rule during the cure period would not constitute a 
violation. Final Sec.  1026.19(f)(2)(v) provides that if amounts paid 
by the consumer exceed the amounts specified under Sec.  
1026.19(e)(3)(i) or (ii), the creditor complies with Sec.  
1026.19(e)(1)(i) if the creditor refunds the excess to the consumer no 
later than 60 days after consummation, and the creditor complies with 
paragraph Sec.  1026.19(f)(1)(i) if the creditor delivers or places in 
the mail corrected disclosures that reflect such refund no later than 
60 days after consummation. Thus, creditors do not violate Sec.  
1026.19(e) or (f) in connection with the refund changing the 
disclosures if they provide corrected disclosures in accordance with 
the timeframe in the final rule.
    This final rule and commentary will enable meaningful disclosure of 
credit terms, prevent circumvention and evasion of TILA, and will 
facilitate compliance with TILA by enabling creditors to refund amounts 
collected in excess of the good faith requirements, consistent with 
TILA section 105(a). This also will result in the meaningful advance 
disclosure of settlement costs and the elimination of kickbacks, 
referral fees, and other practices that tend to increase unnecessarily 
the costs of certain settlement services by enabling creditors to 
refund amounts collected in excess of the good faith requirements, 
thereby furthering the meaningfulness and reliability of the estimated 
disclosures, consistent with section 19(a) of RESPA.
19(f)(3) Charges Disclosed
19(f)(3)(i) Actual Charge
    Section 4 of RESPA provides that the settlement statement shall 
contain ``all charges imposed upon the borrower'' in connection with 
the settlement. 12 U.S.C. 2603(a). Regulation X Sec.  1024.8(b)(1) 
currently provides the general rule that the settlement agent shall 
state the actual charges paid by the borrower and seller on the RESPA 
settlement statement. The Bureau proposed Sec.  1026.19(f)(3)(i), which 
would have provided that the amount imposed upon the consumer for any 
settlement service shall not exceed the amount actually received by the 
service provider for that service, except if the charge is an average 
charge, as provided under Sec.  1026.19(f)(3)(ii). The Bureau proposed 
this provision pursuant to its authority under section 105(a) of TILA, 
section 19(a) of RESPA, Dodd-Frank Act section 1032(a), and, for 
residential mortgage loans, Dodd-Frank Act section 1405(b).
    Proposed comment 19(f)(3)(i)-1 would have explained that Sec.  
1026.19(f)(3)(i) provides the general rule that the amount imposed upon 
the consumer for any settlement service shall not exceed the amount 
actually received by the service provider for that service. The comment 
would have explained further that, except as otherwise provided in 
Sec.  1026.19(f)(3)(ii), a creditor violates Sec.  1026.19(f)(3)(i) if 
the amount imposed upon the consumer exceeds the amount actually 
received by the service provider for that service.
    The Bureau explained that the proposed rule would prevent 
circumvention and evasion of, and will facilitate compliance with, TILA 
by requiring disclosure of the actual terms and costs of the 
transaction, consistent with section 105(a) of TILA. The Bureau also 
explained that the proposed rule would implement the requirements of 
RESPA section 4, pursuant to the Bureau's implementation authority 
under RESPA section 19(a), which also would result in the elimination 
of kickbacks, referral fees, and other practices that tend to increase 
unnecessarily the costs of certain settlement services, consistent with 
RESPA sections 2(b) and 8. The Bureau explained that the proposed rule 
also would ensure that the features of the consumer's mortgage loan are 
fully and accurately disclosed to the consumer, consistent with Dodd-
Frank Act section 1032(a). The Bureau further explained that the 
proposed rule would improve consumer awareness and understanding of 
transactions involving residential mortgage loans and is in the 
interest of consumers and in the public interest, consistent with Dodd-
Frank Act section 1405(b).
    The Bureau received few comments on this aspect of the proposal. A 
trade association representing banks explained that the proposed rule 
appears to impose a zero tolerance on charges imposed on consumer, 
unless average charges are used. The commenter explained that, under 
Regulation Z Sec.  1026.4(c)(7), certain third-party fees are excluded 
from the finance charge if they are ``bona fide.'' The commenter 
explained that creditors have some protection against inadvertent 
mistakes because of the $100 finance charge tolerance under Sec.  
1026.18(d)(1). The commenter recommended that the final rule include a 
$100 tolerance, adjusted annually, for charges disclosed on the Closing 
Disclosure. One individual escrow agent requested that the Bureau 
clarify how settlement agents must balance their accounts if the amount 
of the title policy is not the actual premium. The Bureau has addressed 
questions with respect to specific disclosures in the applicable 
section-by-section analyses of Sec.  1026.38.
    The Bureau has considered the comment from the trade association 
and has determined to adopt the Sec.  1026.19(f)(3)(i) and its 
associated commentary substantially as proposed, under the authority 
described in the proposal, with technical revisions to amend the 
reference to ``service provided,'' and refers instead to ``settlement 
service provider'' for clarity. The final rule does not include a $100 
tolerance for settlement charges that may be inaccurately disclosed. 
The charges disclosed on the Closing Disclosure are subject to the 
accuracy standards in Sec.  1026.19(f)(1)(i). In addition, the final 
rule affords creditors more flexibility with respect to events 
occurring after consummation that make the previous disclosures 
inaccurate. In addition, as noted above, the Bureau does not intend to 
alter the existing provisions under TILA section 130 regarding the 
curing of errors by creditors.
19(f)(3)(ii) Average Charge
    As part of HUD's 2008 RESPA Final Rule, HUD adopted a limited 
exception to the requirement that the settlement statement shall 
contain the amount imposed on the borrower, which shall not be more 
than the amount received by the settlement service provider. See 12 
U.S.C. 2603(a), 2607(b). Under current Regulation X, a lender or 
settlement service provider may charge more for a settlement service 
than the amount paid for that service if the charge is an average 
charge. Specifically, Regulation X Sec.  1024.8(b) provides that the 
average charge for a settlement service shall be no more than the 
average amount paid for a settlement service by one settlement service 
provider to another settlement service provider on behalf of borrowers 
and sellers for a particular class of transactions involving federally 
related mortgage loans, and that the total amounts paid by borrowers 
and sellers for a settlement service based on the use of an average 
charge may not exceed the total amounts paid to the providers of

[[Page 79886]]

that service for the particular class of transactions.
    Section 1024.8(b)(2) also provides that, the settlement service 
provider shall define the particular class of transactions for purposes 
of calculating the average charge as all transactions involving 
federally related mortgage loans for a period of time as determined by 
the settlement service provider, but not less than 30 calendar days and 
not more than six months, a geographic area as determined by the 
settlement service provider, and a type of loan as determined by the 
settlement service provider. Regulation X also requires a settlement 
service provider to use an average charge in the same class of 
transactions for which the charge was calculated, and if the settlement 
service provider uses the average charge for any transaction in the 
class, then the settlement service provider must use the same average 
charge in every transaction within that class for which a RESPA GFE was 
provided. Id. Regulation X prohibits the use of an average charge for 
any settlement service if the charge for the service is based on the 
loan amount or property value, such as transfer taxes, interest 
charges, reserves or escrow, or any type of insurance, including 
mortgage insurance, title insurance, or hazard insurance, and also 
requires the settlement service provider to retain all documentation 
used to calculate the average charge for a particular class of 
transactions for at least three years after any settlement for which 
that average charge was used. Id.
    Proposed Sec.  1026.19(f)(3)(ii) would have provided that a 
creditor or settlement service provider may charge a consumer or seller 
the average charge for a settlement service if the average charge is no 
more than the average amount paid for that service by or on behalf of 
all consumers and sellers for a class of transactions, the creditor or 
settlement service provider defines the class of transactions based on 
an appropriate period of time, geographic area, and type of loan, the 
creditor or settlement service provider uses the same average charge 
for every transaction within the defined class, and the creditor or 
settlement service provider does not use an average charge for any type 
of insurance, for any charge based on the loan amount or property 
value, or if doing so is otherwise prohibited by law. The Bureau 
proposed this provision pursuant to its authority under section 105(a) 
of TILA and 19(a) of RESPA.
    Proposed comment 19(f)(3)(ii)-1 would have explained that average-
charge pricing is the exception to the rule in Sec.  1026.19(f)(3)(i) 
that consumers shall not pay more than the exact amount charged by a 
settlement service provider for the performance of that service. The 
comment would have clarified that, if the creditor develops 
representative samples of specific settlement costs for a particular 
class of transactions, the creditor may charge the average cost for 
that settlement service instead of the actual cost for such 
transactions, and that an average-charge program may not be used in a 
way that inflates the cost for settlement services overall.
    Proposed comment 19(f)(3)(ii)-2 would have explained how an 
appropriate period of time, geographic area, and type of loan may be 
defined, and provided illustrative examples of issues a person may 
encounter when defining an appropriate geographic area and an 
appropriate type of loan. Proposed comment 19(f)(3)(ii)-3 would have 
provided further explanation related to the requirement that if a 
creditor chooses to use an average charge for a settlement service for 
a particular loan within a class, then the creditor must use that 
average charge for that service on all loans within the class. Proposed 
comment 19(f)(3)(ii)-3 also would have provided examples illustrating 
the uniform use requirement. Proposed comment 19(f)(3)(ii)-4 would have 
illustrated the requirement that the average charge must be calculated 
according to the average amount paid for a settlement service in a 
prior period, and clarifies that updates to the average charge may be 
delayed for an amount of time sufficient to re-calculate the average 
charge, provided that such delays are applied uniformly from one time 
period to the next.
    Proposed comment 19(f)(3)(ii)-5 would have discussed the 
requirement that the total amount of average charges paid by consumers 
for settlement services may not exceed the total amount paid for those 
settlement services overall. The Bureau explained in the proposal that 
it has received extensive feedback from industry that this requirement, 
which currently exists under RESPA and Regulation X, has impeded 
industry adoption of average charge pricing. The Bureau stated its 
belief that prohibiting industry from collecting more money than is 
actually paid to settlement service providers means that industry 
cannot actually average costs over time, and must instead operate at a 
loss in the long term if industry chooses to use average charge 
pricing. The Bureau explained that it believed that the use of average-
charge pricing promotes greater reliability for consumers. Therefore, 
the Bureau sought to address this concern to facilitate the adoption of 
average charge pricing. Proposed comment 19(f)(3)(ii)-5 would have 
addressed this issue and discussed the ways in which a person may 
comply with this requirement. The comment would have clarified that a 
person may refund the excess amounts collected or may factor in the 
excesses when determining the average charge for the next period. In 
addition, the comment would have clarified that a person also may 
comply by establishing a rolling monthly period of re-evaluation, and 
that a person complies by re-calculating the average amount every 
month, and will be deemed to be in compliance with sections 4 and 8 of 
RESPA if the person uses this method, even if the person collects more 
for settlement services than the total amount paid for those settlement 
services over time.
    Proposed comment 19(f)(3)(ii)-6 would have explained that 
adjustments to the average charge based on prospective analysis are 
permitted if the creditor or settlement service provider develops a 
statistically accurate and reliable method for doing so. However, the 
Bureau explained in the proposal that it was concerned that prospective 
adjustments may not be practicable in the context of determining 
average charges. Accordingly, the Bureau sought comment on whether such 
a provision is appropriate.
    Proposed comment 19(f)(3)(ii)-7 would have discussed the 
requirement that average charges may not be used for insurance premiums 
or for items that vary according to the loan amount or property value, 
such as transfer taxes. Proposed comment 19(f)(3)(ii)-8 would have 
clarified that an average charge may not be used where prohibited by 
any applicable State or local law. Proposed comment 19(f)(3)(ii)-9 
would have explained how the recordkeeping requirements in Sec.  
1026.25 apply to the documents related to the calculation of average 
charge.
    The Bureau proposed Sec.  1026.19(f)(3)(ii) pursuant to its 
authority under section 105(a) of TILA and 19(a) of RESPA. HUD adopted 
average-charge pricing pursuant to its authority under section 19(a) of 
RESPA after finding that average-charge pricing would benefit consumers 
by lowering settlement costs and enabling more effective advance 
disclosure of such costs, consistent with RESPA sections 2(b), 4, 5, 
8(c)(5), and 19(a).\248\ In

[[Page 79887]]

addition to this authority, the Bureau explained that proposed Sec.  
1026.19(f)(3)(ii) would prevent circumvention and evasion of, and will 
facilitate compliance with, TILA, consistent with section 105(a) of 
TILA. The Bureau further stated that the proposed regulation would 
improve consumer awareness and understanding of the transaction, which 
would be in the interest of consumers and in the public interest, 
consistent with Dodd-Frank Act section 1405(b).
---------------------------------------------------------------------------

    \248\ See 73 FR 14030, 14051-14052 (March 14, 2008). Section 
8(c)(5) of RESPA provided that, ``Nothing in this section shall be 
construed as prohibiting . . . such other payments or classes of 
payments or other transfers as are specified in regulations 
prescribed by the Secretary.'' 12 U.S.C. 2607(c)(5) (2008).
---------------------------------------------------------------------------

Comments
    Trade associations representing banks were concerned that, if 
average cost pricing methodology cannot be used for small differences 
for different populations, they doubted whether it would be useful. 
Commenters were concerned that proposed comment 19(f)(3)(ii)-2 language 
appeared to require the creditor or settlement service provider to 
perform statistical analysis to determine what the median prices would 
be for a service, depending upon how the class was defined and whether 
there was a ``normal distribution'' of costs within a class. Commenters 
were concerned that the burden of conducting such analysis did not 
appear to have a reasonable relationship to any potential consumer 
benefit. Commenters also stated that, once a statistical analysis is 
complete, the proposed rule did not offer guidance on what level of 
difference in prices within a class would be acceptable.
    Trade associations representing banks and financial companies 
explained that it was not clear under either the current or proposed 
rule when services are considered separate services, such as whether 
different types of credit reports or different types of appraisals and 
valuations can be considered the same service. Commenters recommended 
that the creditor either be able to treat these as the same type of 
service or as different types of services. Commenters also requested 
guidance on how to the rule would apply when there are intermediate 
settlement service providers, such as when a creditor uses multiple 
appraisal management companies that, in turn, use many different 
appraisers, or when a creditor uses more than one title company, each 
of which uses many subproviders to provide title-related services.
    Trade associations representing banks and financial companies 
asked, if an average charge is paid by the consumer but the settlement 
service provider received a different amount, whether the amount 
disclosed should be the actual amount paid to the service provider or 
the average amount charged to the consumer. Commenters observed that 
disclosing the actual amount paid to the provider would be a compliance 
burden and confusing to the consumer. They recommended that, where the 
consumer pays an average charge, the amount disclosed should be the 
average charge.
    A trade association representing settlement agents supported the 
proposed rule's average charge pricing rules and explained that it 
found the detailed direction on the computation and use of an average 
charge helpful. The commenter requested that current Regulation X 
provisions on average charge pricing be supplanted by the TILA 
provisions of the proposed rule.
    A title insurance company commenter supported the inclusion of 
proposed comment 19(f)(3)(ii)-6, which would have explained that a 
creditor may prospectively adjust average charges if it develops a 
statistically reliable and accurate method for doing so. The commenter 
explained that a prospective analysis adjustment procedure, based on a 
statistically accurate and reliable method, provides a way to charge an 
average charge that is more reflective of the actual cost incurred and 
is more equitable to consumers. The commenter provided an example in 
which, for winter-weather States, the charge for a survey obtained 
during the months of October through March may be 25 percent higher 
than the charge for a survey obtained during the months of April 
through September. The commenter was concerned that, if a prospective 
analysis was not permitted, consumers obtaining a survey during winter 
months would pay an average charge calculated retrospectively, and 
based on lower prices before winter. Similarly, if a prospective 
analysis was not permitted, consumers obtaining a survey during summer 
months would pay an average charge calculated retrospectively, and 
based on higher prices before the summer. The commenter was concerned 
that this would lead to inequitable outcomes for some consumers and 
would provide a disincentive to the creditor or settlement service 
provide to use the average charge methodology.
    The title insurance company commenter also explained that a 
prospective adjustment methodology would be able to account for unusual 
situations where there is a known unilateral increase or decrease in 
the actual cost of a particular third-party settlement service. The 
commenter gave an example in which a new law was to take effect January 
1 that would result in an across-the-board increase of $50 per 
transaction in recording fees. Without a prospective adjustment for 
this expected change, the $50 per transaction recording fee actual cost 
would have to be absorbed by the creditor or settlement agent for the 
initial time period of up to six months and would never be recovered. 
The commenter also explained that, conversely, if the law would result 
in an across-the-board decrease of $50 per transaction in recording 
fees, an inability to use a prospective adjustment methodology would 
result in a windfall to the creditor or settlement agent for the 
initial time period at the expense of the consumer.
    The commenter did not believe prospective adjustments would be 
impracticable in the context of determining average charges if, as 
proposed, documentation would have to be provided to support all 
average charge determinations. Recordkeeping requirements would provide 
data for seasonal variations and would ensure average charges are not 
prospectively adjusted at will.
    The commenter requested that the Bureau provide guidance on who 
will determine the average recording charges, noting that ``alternative 
1'' to proposed Sec.  1026.19(f) (in which the creditor would have been 
solely responsible for providing the Closing Disclosure) would raise 
questions about whether the creditor would be required to pay the 
actual recording charge to the settlement agent or if the settlement 
agent would establish the average charge for recording fees. The 
commenter was concerned that, if the Bureau selected ``alternative 2'' 
(in which responsibility for proposed Sec.  1026.19(f) could be divided 
between settlement agents and creditors), it may be difficult for 
settlement agents to establish the average recording charges because 
they also would be the party paying the actual recording charge as 
necessary to record the documents. The commenter requested that the 
Bureau provide guidance on these situations.
Final Rule
    The Bureau has considered the comments received regarding the 
proposed average charge pricing provisions. Some commenters were 
concerned that burdensome statistical analysis would be required to use 
average charge pricing under the final rule. The final rule does not 
require that creditors or settlement service providers engage in 
statistical analysis to

[[Page 79888]]

determine whether the class of transactions that serves as the basis 
for the average charge is based on an appropriate geographic area and 
loan type.
    The Bureau does not believe it will be unreasonably burdensome for 
creditors or settlement service providers to assess whether a 
geographic area or loan type are defined using subgroups that clearly 
have distinct cost characteristics. The average cost pricing rules are 
not requirements, but are intended to provide creditors flexibility 
from the general requirement that the actual amount imposed on the 
consumer may not exceed the amount received by the settlement service 
provider. To the extent an average charge is imposed that exceeds the 
cost actually received by a settlement service provider, the Bureau 
believes it is reasonable to expect creditors to ensure the average 
charge is not derived from distinct markets. Deriving an average charge 
from a class composed of subgroups that have distinct cost 
characteristics would mean that a charge could be unfairly inflated and 
applied in a way that disadvantages certain populations.
    Creditors relying on such charges must ensure that classes of 
transactions are defined in a way that complies with Sec.  
1026.19(f)(3)(ii). While the Bureau does not expect that the average 
cost pricing rules will require the use of expensive statistical 
analysis, creditors relying on such charges likely will need to review 
the distribution of charges in a class of transactions to ensure 
averages are not derived from populations that have dissimilar cost 
characteristics.
    Commenters requested that the rule clarify when settlement services 
are considered separate services or how the rule would apply to 
settlement services that involve intermediate settlement service 
providers. Final Sec.  1026.19(f)(3)(i) and (ii) sets forth cost 
disclosure rules with respect to a ``settlement service.'' RESPA 
section 3(3) defines ``settlement services'' as including ``any service 
provided in connection with a real estate settlement''; the definition 
sets forth a number of examples. 12 U.S.C. 2603(3). Similarly, 
Regulation X defines ``settlement service'' broadly to mean ``any 
service provided in connection with a prospective or actual settlement, 
including, but not limited to, any one or more of'' 15 classes of 
services, such as ``[r]endering of credit reports and appraisals.'' 
Neither TILA nor Regulation Z includes its own definition of 
``settlement service.'' Because of the variety of settlement services 
and arrangements, the Bureau does not believe it is feasible to add 
additional specificity to that already provided by RESPA and Regulation 
X for purposes of the average cost pricing rules.
    Creditors should exercise judgment in determining whether 
particular settlement services are distinct for purposes of calculating 
average charges, bearing in mind the requirement that an average charge 
should be no more than the average amount paid for a particular service 
by or on behalf of all consumers and sellers for a class of 
transactions. See Sec.  1026.19(f)(3)(ii)(A). Creditors should also 
bear in mind that an average-charge program may not be used in a way 
that inflates the cost for settlement services overall. Thus, it would 
be inappropriate to derive an average charge for a settlement service 
comprised of sub-classes that have dissimilar cost characteristics 
because the nature of the service provided for each sub-class is 
clearly distinct. Similarly, where an average charge is applied to 
settlement services involving intermediary service providers, the 
appropriateness of an average charge would depend, among other things, 
on the nature of settlement service provided and how the provider 
charges for that service.
    With respect to the comment recommending that the rule include a 
prospective adjustment methodology, the Bureau believes that a 
prospective adjustment methodology will facilitate compliance with the 
final rule. A prospective adjustment analysis can, in some cases, be a 
more efficient means of developing an average charge where certain cost 
increases are predictable using a statistically reliable and accurate 
method of adjustment. With respect to the comment requesting that the 
proposed average charge pricing regulations and commentary be included 
in Regulation X, such an amendment to Regulation X is outside the scope 
of this rulemaking.
    For the aforementioned reasons and those discussed in the proposal, 
the Bureau has determined to finalize Sec.  1026.19(f)(3)(ii) as 
proposed and comments 19(f)(3)(ii)-1 through -9 substantially as 
proposed. Minor modifications have been made to comments 19(f)(3)(ii)-
2.i and -2.ii, which contain illustrative examples of how a creditor 
could define a geographic area and loan type. Comment 19(f)(3)(ii)-2.i 
clarifies that, where a geographic area is made up of sub-divisions, 
the geographic area would be ``appropriately defined'' if the sub-
divisions had a relatively normal distribution of appraisal costs, even 
if the distribution ``for each subdivision'' ranges from below $200 to 
above $1,000. The final rule makes this modification to clarify further 
the meaning of the comment. A similar modification has been made to 
comment 19(f)(3)(ii)-2.ii.
    In addition, comment 19(f)(3)(ii)-2 has been modified to explain 
that, for purposes of Sec.  1026.19(f)(3)(ii)(B), a geographic area and 
loan type are appropriate if the sample size is sufficient ``to 
calculate average costs with reasonable precision,'' provided that the 
area and loan type are not defined in a way that aggregates costs 
between dissimilar populations. This language has been added to clarify 
the meaning of ``sufficient'' in this context. The comment then gives 
examples of whether a geographic area and loan type have been defined 
appropriately. With respect to loan type, comment 19(f)(3)(ii)(B)-2.ii 
explains that it would not be appropriate to define a loan type that 
includes two distinct rate products that have different median 
recording fees, which would reflect dissimilar cost characteristics 
between the two products. The commentary explains that a loan type 
could be appropriately defined if both rate products had a ``relatively 
normal distribution of recording fees,'' even if that distribution 
ranges between low and high amounts for both loan products. Comment 
19(f)(3)(ii)-3.i and -3.ii include minor technical revisions.
    Comment 19(f)(3)(ii)-9 has been revised to correct a reference to 
the document retention period required under Sec.  1026.25. Proposed 
comment 19(f)(3)(ii)-9 had explained that, to comply with Sec.  
1026.25, a creditor must retain all documentation used to calculate the 
average charge for a particular class of transactions for at least two 
years after any settlement for which that average charge was used. In 
accordance with Sec.  1026.25(c)(1), the comment clarifies that 
documentation must be retained for at least three years after any 
settlement for which the average charge was used.
    Commenters requested clarification on whether, in a situation in 
which an average charge is paid by the consumer but where the 
settlement provider received a different amount, the amount disclosed 
should be the actual amount paid to the service provider or the average 
amount charged to the consumer. In this case, the charge disclosed 
would be the average charge, not the actual charge, pursuant to Sec.  
1026.19(f)(3)(i) and (ii). The Bureau believes this is consistent with 
RESPA and Regulation X, which require that the settlement statement 
disclose charges actually paid by the consumer.
    A commenter requested clarification on how Sec.  1026.19(f)(3)(ii) 
would apply to average charges for recording fees under either 
``alternative 1'' or

[[Page 79889]]

``alternative 2'' with respect to the party responsible for providing 
the Closing Disclosure. As discussed in the section-by-section analysis 
of Sec.  1026.19(f)(1)(v), the Bureau is finalizing ``alternative 2,'' 
which would permit creditors and settlement agents to share 
responsibility for complying with Sec.  1026.19(f). If a settlement 
agent assumes the responsibility for charging a consumer an average 
charge instead of an actual charge, it must comply with Sec.  
1026.19(f)(3)(ii). See comment 19(f)(1)(v)-2. Thus, the settlement 
agent would charge the consumer an average charge for recording fees in 
compliance with Sec.  1026.19(f)(3)(ii), even if it pays different 
actual charges to record documents.
    Final Sec.  1026.19(f)(3)(ii) and comments 19(f)(3)(ii)-1 through -
9 are adopted pursuant to the Bureau's authority under section 105(a) 
of TILA and 19(a) of RESPA. HUD adopted average-charge pricing pursuant 
to its authority under section 19(a) of RESPA after finding that 
average-charge pricing would benefit consumers by lowering settlement 
costs and enabling more effective advance disclosure of such costs, 
consistent with RESPA sections 2(b), 4, 5, 8(c)(5), and 19(a). The 
Bureau agrees with HUD's reliance on these authorities. In addition to 
these authorities, the Bureau believes the final rule and commentary 
will prevent circumvention and evasion of, and will facilitate 
compliance with, TILA, consistent with section 105(a) of TILA. The 
Bureau believes that the final rule and commentary will improve 
consumer awareness and understanding of the transaction, which will be 
in the interest of consumers and in the public interest, consistent 
with Dodd-Frank Act section 1405(b).
19(f)(4) Transactions Involving a Seller
    Neither TILA nor Regulation Z contain requirements related to the 
seller in a purchase transaction. Section 4 of RESPA provides that the 
integrated disclosure shall conspicuously and clearly itemize ``all 
charges imposed upon the seller'' in connection with the settlement. 12 
U.S.C. 2603(a). Regulation X states that the settlement agent shall 
provide a completed RESPA settlement statement to any seller at or 
before the settlement, unless the borrower waives the right to delivery 
of the RESPA settlement statement at or before settlement, in which 
case the RESPA settlement statement shall be mailed to the seller as 
soon as practicable after settlement. See 12 CFR 1024.10(b) and (c). 
Accordingly, the Bureau proposed Sec.  1026.19(f)(4)(i), (ii), and 
(iii) pursuant to its authority under sections 105(a) of TILA, 19(a) of 
RESPA, Dodd-Frank Act section 1032(a), and, for residential mortgage 
loans, Dodd-Frank Act section 1405(b).
    Proposed Sec.  1026.19(f)(4)(i) would have provided that in a 
closed-end consumer credit transaction secured by real property, other 
than a reverse mortgage subject to Sec.  1026.33, the person conducting 
the settlement shall provide the seller with the disclosures in Sec.  
1026.38 that relate to the seller. Proposed Sec.  1026.19(f)(4)(ii) 
would have provided that the person conducting the settlement shall 
provide these disclosures no later than the day of consummation. Under 
the proposed provision, if an event occurs after consummation that 
causes such disclosures to become inaccurate, and such inaccuracy 
results solely from payments to a government entity, the person 
conducting the real estate closing shall deliver revised disclosures to 
the seller no later than 30 days after consummation. Proposed Sec.  
1026.19(f)(4)(iii) would have provided that the amount imposed upon the 
seller for any settlement service shall not exceed the amount actually 
received by the service provider for that service, except for average 
charges calculated pursuant to Sec.  1026.19(f)(3)(ii).
    Proposed comment 19(f)(4)(ii)-1 would have explained that, if an 
event occurs after consummation that causes such disclosures to become 
inaccurate and such inaccuracy results solely from payments to a 
government entity, the person conducting the real estate closing shall 
deliver revised disclosures to the seller no later than 30 days after 
consummation. Proposed Sec.  1026.19(f)(4)(i) would have required 
disclosure of the items that relate to the seller's transaction. Thus, 
the comment would have explained that the person conducting the real 
estate closing need only provide revised disclosures if an item related 
to the seller's transaction becomes inaccurate and such inaccuracy 
results solely from payments to a government entity. The proposed 
comment also would have provided illustrative examples of this 
requirement.
Comments
    Commenters expressed mixed views with respect to the requirement to 
provide a separate seller's form. Some industry commenters noted that a 
separate seller's form would benefit the consumer and the seller 
because it would protect the privacy interests of both parties, as well 
as others. For example, one settlement agent noted that the parties' 
real estate agents frequently do not want their commissions to be 
disclosed publicly as part of the transaction. Some commenters also 
noted that separate forms would facilitate closings because last-minute 
changes that affect only one party could be accounted for separately. 
Other industry commenters were concerned that separate disclosures 
could create confusion and increase burden for creditors and settlement 
service providers, and potentially raise costs for sellers. A number of 
these commenters were concerned that a separate disclosure form for the 
seller would have been required under the proposal, which they believed 
would be unnecessarily burdensome and complicate closings. Settlement 
agent and law firm commenters also explained that a separate seller's 
form would not be in the buyer's or seller's interest because many 
transactions require a reference to the other party's side of the RESPA 
settlement statement (for example, to see where seller-paid closing 
costs are applied).
    In addition, many commenters were concerned that a creditor may be 
responsible for the seller's transaction. They stated that it would not 
be in the seller's interest for the consumer's creditor to control all 
aspects of the funding, that creditors owe no duty to the seller, and 
that creditors lack expertise to complete information about the 
seller's transaction. A community bank stated that creditors should not 
have to complete the seller's disclosure, even if the closing is taking 
place at the creditor's offices; instead, the real estate agent or 
title company should prepare the form. Real estate agents stated that 
it would not be appropriate for the buyer's lender to contact the 
seller's lender for payoff information, and that this information 
should be obtained by the title company because such information would 
pose a conflict-of-interest for the creditor. One real estate agent 
commenter suggested that this would mean a seller would lack 
representation at the closing table and would need to hire a separate 
attorney, increasing closing costs.
    One settlement agent commenter asked whether the seller should be 
afforded the same opportunity as the consumer to review the settlement 
figures three business days prior to closing. However, a community bank 
explained that, although it should not be a problem to provide the 
borrower the final closing costs three days in advance, most title 
companies are not able to provide the seller's figures until the day 
before closing at the earliest. The commenter noted that third-party 
lenders do not calculate the seller's payoff statement until right 
before closing and sometimes attorney fees are

[[Page 79890]]

not provided timely. A trade association representing various mortgage 
industry professionals requested that the Bureau design separate 
disclosure forms to avoid consumers receiving a Closing Disclosure that 
combines seller and consumer information. Commenters also asked how 
settlement performed by the creditor would be documented by the 
settlement agent for the seller if the creditor delivers the Closing 
Disclosure.
    Trade associations representing banks and financial companies 
stated that proposed Sec.  1026.19(f)(4)(i) appeared inconsistent with 
proposed Sec.  1026.19(f)(2)(i). The commenters observed that, while 
Sec.  1026.19(f)(4)(i) would have provided that ``the person conducting 
the real estate closing shall provide the seller with the disclosures 
in Sec.  1026.38 that relate to the seller's transaction,'' proposed 
Sec.  1026.19(f)(2)(i) would have provided that, if there were changes 
to the transaction, ``the creditor shall deliver revised disclosures 
reflecting such changes at or before consummation.''
    A variety of settlement agents and trade associations representing 
settlement agents and banks requested clarification on how a seller's 
settlement agent would document settlements when the creditor provides 
the Closing Disclosure, and which document would serve as the ultimate 
disbursement document.
Final Rule
    The Bureau has considered the comments on the proposed provisions 
regarding disclosure to the seller. The Bureau has determined to 
finalize the regulation and commentary substantially as proposed, with 
modifications described below. The Bureau understands commenters' 
concerns about the inconsistent usage of the terms ``settlement agent'' 
and ``the person conducting the real estate closing'' between Sec.  
1026.19(f)(4) and the other provisions of Sec.  1026.19(f). The final 
rule revises proposed Sec.  1026.19(f)(4)(i) and (ii) to change the 
term ``person conducting the real estate closing'' to the term 
``settlement agent'' to conform to the usage of that term throughout 
Sec.  1026.19(f). The Bureau believes this modification will facilitate 
compliance.
    As set forth in Sec.  1026.38, the final rule requires certain 
information about the seller's transaction because such information is 
necessary to comply with TILA section 128(a)(17), which requires that 
the creditor disclose the aggregate amount of settlement charges for 
all settlement services provided in connection with the loan and the 
aggregate amount of other fees or required payments in connection with 
the loan. The Bureau believes this requires disclosure of information 
about the seller's transaction. In addition RESPA section 4(a) requires 
that the RESPA settlement statement itemize all charges imposed upon 
the seller in connection with the settlement.
    As discussed in more detail in the section-by-section analysis of 
1026.19(f)(1)(v), creditors are permitted to divide responsibility for 
providing the Closing Disclosure with settlement agents, and the Bureau 
expects creditors will do so if they believe they cannot accurately or 
effectively make certain disclosures. The Bureau proposed a separate 
requirement under Sec.  1026.19(f)(4)(i) for the person conducting the 
settlement to provide the disclosures in Sec.  1026.38 that relate to 
the seller's transaction to the seller because the Bureau recognizes 
that a creditor does not owe a duty to the seller and to account for 
variations in local law that may require that the seller receive a 
separate disclosure (e.g., for privacy reasons) or variations in local 
practice in which a seller and a consumer may not attend settlements 
in-person or at the same time. This requirement is intended to 
implement in Regulation Z the RESPA requirement that currently appears 
in Regulation X. See 12 CFR 1024.10(b). To the extent the seller's 
disclosure contains the same information as the Closing Disclosure, the 
Bureau does not believe substantial new burden will be created because 
information from the Closing Disclosure, or the Closing Disclosure 
itself, could be used. To avoid confusion over whether a separate 
seller's disclosure must be provided, the Bureau has clarified proposed 
comment 19(f)(4)(i)-1 to indicate that the settlement agent complies 
with Sec.  1026.19(f)(4)(i) by providing a copy of the Closing 
Disclosure provided to the consumer, if it also contains the 
information under Sec.  1026.38 relating to the seller's transaction, 
or alternatively providing the disclosures under Sec.  1026.38(t)(5)(v) 
or (vi), as applicable. See the section-by-section analyses of Sec.  
1026.38(t)(5)(v) and (vi) for more discussion of the separate forms 
that are permitted for transactions involving a seller.
    Some commenters were concerned that sellers would be reluctant to 
provide information to a creditor that may appear on the Closing 
Disclosure and one commenter explained that creditors should not have 
to complete the seller's disclosure, even if the closing is taking 
place at the creditor's offices. Final Sec.  1026.19(f)(4)(i) provides 
that the settlement agent provides the seller's disclosure, which in 
most cases will not be the creditor.
    With respect to concerns about sellers being reluctant to share 
their information, the Bureau believes final Sec.  1026.19(f)(1)(v) 
will allow creditors and settlement agents to manage any conflicts as 
they arise. The Bureau also observes that Regulation X Sec.  1024.10(b) 
currently requires, when the borrower's and seller's copies of the 
RESPA settlement statement differ, that the settlement agent deliver 
copies of both the borrower's and seller's copies of the RESPA 
settlement statement to the lender (if the lender is not the settlement 
agent). Some comments requested that the Bureau develop a separate 
forms, such as for refinancings, to avoid consumers receiving a Closing 
Disclosure that combines seller and consumer information. This is 
permitted pursuant to Sec.  1026.38(t)(5). As discussed in the section-
by-section analysis of that provision below, this provision provides 
for a separate form for the seller and consumer, a different version 
for transactions without a seller, and a different version only for the 
seller.
    One commenter asked whether the seller should be afforded the same 
opportunity as the consumer to review the settlement figures three 
business days prior to closing. The final rule does not require that 
the seller receive the Closing Disclosure three business days before 
consummation, but the final rule does not prevent settlement agents 
from providing the Closing Disclosure to the seller earlier. As noted 
above, neither TILA nor Regulation Z contain requirements related to 
the seller in a purchase transaction. Regulation X generally requires 
that the settlement agent provide a completed RESPA settlement 
statement to any seller at or before the settlement. In the context of 
a credit transaction covered by TILA, consumers are considering the 
terms of a loan obligation in addition to settlement costs in 
connection with a purchase-money mortgage transaction. As discussed in 
the section-by-section analyses of Sec.  1026.19(f)(1)(ii)(A), 
(f)(2)(i), and (f)(2)(ii), the Bureau believes a three-business-day 
period for consumers would be necessary to comply with the requirements 
of MDIA and to provide consumers sufficient time to consider major 
changes to the terms of a loan that could impose significant, long-term 
costs on consumers.
    With respect to commenters' questions about use of the Closing 
Disclosure as a disbursement document, as explained also in the 
section-by-section analysis of Sec.  1026.19(f)(1)(v), the Closing 
Disclosure is designed to

[[Page 79891]]

integrate disclosures provided under TILA and RESPA. To the extent the 
Closing Disclosure's disclosure requirements differ from other 
arrangements made pursuant to contract or other law or custom, the 
final rule does not prohibit creditors and settlement agents from 
developing their own disbursement instructions and managing any 
discrepancies as they arise, consistent with the current practice with 
respect to the RESPA settlement statement.
    Final provisions. For the aforementioned reasons, including those 
cited in the proposal, Sec.  1026.19(f)(4)(i) and (ii) and comments 
19(f)(4)(i)-1 and 19(f)(4)(ii)-1 are adopted substantially as proposed, 
with modifications discussed below. Final Sec.  1026.19(f)(4)(iii) is 
adopted without change.
    Final Sec.  1026.19(f)(4)(i) and (ii) and the associated commentary 
use the term ``settlement agent'' instead of ``person conducting the 
settlement'' to conform to the usage of the term throughout Sec.  
1026.19(f). Final Sec.  1026.19(f)(4)(i) also requires that the 
settlement agent provide the seller with the disclosures in Sec.  
1026.38 that relate to the seller's transaction ``reflecting the actual 
terms of the seller's transaction.'' The final rule includes this 
language to conform Sec.  1026.19(f)(4)(i) to the requirement in Sec.  
1026.19(f)(1)(i) and to reflect the standard currently in Regulation X 
for the settlement agent to state the actual charges paid by the 
borrower and seller on the RESPA settlement statement. See 12 CFR 
1024.8(b)(1).
    The final rule includes comment 19(f)(4)(i)-1, which clarifies how 
the settlement agent complies with Sec.  1026.19(f)(4)(i) to provide 
the seller with the disclosures in Sec.  1026.38 that relate to the 
seller's transaction. Specifically, comment 19(f)(4)(i)-1 explains that 
the settlement agent complies with Sec.  1026.19(f)(4)(i) by providing 
a copy of the Closing Disclosure provided to the consumer, if it also 
contains the information under Sec.  1026.38 relating to the seller's 
transaction, or alternatively providing the disclosures under Sec.  
1026.38(t)(5)(v) or (vi), as applicable. See the section-by-section 
analyses of Sec.  1026.38(t)(5)(v) and (vi) for further discussion 
regarding the final rule with respect to the disclosures required under 
Sec.  1026.38 in transactions involving a seller.
    In addition, final Sec.  1026.19(f)(4)(ii) amends the proposal to 
require that the settlement agent provide the seller's disclosures 
reflecting the actual terms of the transaction on the day of 
consummation. Regulation X generally requires that the settlement agent 
deliver the RESPA settlement statement to the seller at or before 
settlement. See 12 CFR 1024.10(b). As discussed in the section-by-
section analysis of Sec.  1026.19(f)(1)(ii)(A), the Bureau recognizes 
that ``consummation'' may not necessarily be the final ``settlement'' 
of the transaction. Final Sec.  1026.19(f)(4)(ii) addresses changes 
that may occur after consummation.
    Final Sec.  1026.19(f)(4)(ii) and comment 19(f)(4)(ii)-1 also have 
been modified with respect to post-consummation changes to harmonize 
this provision with the requirements in final Sec.  1026.19(f)(2)(iii) 
with respect to the circumstances requiring redisclosure and the timing 
for such redisclosures. Comment 19(f)(4)(ii)-1 includes a cross-
reference to comment 19(e)(4)(1)-1 for additional guidance on complying 
with the timing requirement for post-consummation disclosures. Comment 
19(f)(4)(ii)-1 includes an illustrative example, modified to conform to 
the final rule and includes a cross-reference to comment 19(f)(2)(iii)-
1.iii for an additional example in which corrected disclosures must be 
provided to the seller.
    The final rule includes Sec.  1026.19(f)(4)(iv) to implement the 
requirement currently in Regulation X Sec.  1024.10(b). The Regulation 
X provision generally provides that, when the borrower's and the 
seller's copies of the RESPA settlement statement differ, both copies 
shall be provided to the lender (if the lender is not the settlement 
agent). The Bureau believes it is important to integrate this 
requirement in Sec.  1026.19(f) because Sec.  1026.25(c)(1)(ii) 
generally requires creditors to retain copies of the disclosures under 
Sec.  1026.19(f)(1)(i) and (f)(4)(i). Accordingly, final Sec.  
1026.19(f)(4)(iv) provides that, when the consumer's and seller's 
disclosures under Sec.  1026.19(f) are provided on separate documents, 
as permitted under Sec.  1026.38(t)(5), the settlement agent shall 
provide to the creditor (if the creditor is not the settlement agent) a 
copy of the disclosures provided to the seller under Sec.  
1026.19(f)(4)(i).
    The Bureau believes the final rule and commentary will prevent 
circumvention and evasion of, and will facilitate compliance with, 
TILA, consistent with section 105(a) of TILA. The final rule and 
commentary implement the requirements of RESPA section 4, pursuant to 
the Bureau's implementation authority under RESPA section 19(a). The 
Bureau believes the final rule and commentary also will result in the 
meaningful advance disclosure of settlement costs and the elimination 
of kickbacks, referral fees, and other practices that tend to increase 
unnecessarily the costs of certain settlement services by ensuring that 
the terms of the transaction that relate to the seller, which include 
amounts owed to the seller, are fully and accurately disclosed to the 
seller, consistent with RESPA sections 8 and 19(a). The Bureau believes 
that receipt of the integrated disclosures in accordance with the final 
rule and commentary also will ensure that the features of the 
transaction and settlement services will be more fully and accurately 
disclosed to the consumer in a manner that permits sellers to 
understand the costs of the transaction, consistent with Dodd-Frank Act 
section 1032(a). The Bureau also believes that, by requiring sellers to 
receive the integrated disclosure, the final rule and commentary also 
will improve the seller's awareness and understanding of the seller's 
transaction, which involves a residential mortgage loan, which is in 
the interest of consumers and in the public interest, consistent with 
Dodd-Frank Act section 1405(b).
19(f)(5) No Fee
    Although TILA does not address fees related to the preparation of 
disclosures, RESPA provides that no fee may be imposed on any person, 
as a part of settlement costs or otherwise, by a lender in connection 
with a federally related mortgage loan made by such lender for the 
preparation or delivery of the settlement statement required by section 
4 of RESPA or for statements required by TILA. See 12 U.S.C. 2610. 
Regulation X Sec.  1024.12 implements RESPA's requirement. Neither TILA 
nor Regulation Z contains a similar requirement. The Bureau proposed 
Sec.  1026.19(f)(5), which would have provided that no fee may be 
imposed on any person, as a part of settlement costs or otherwise, by a 
creditor or by a servicer for the preparation or delivery of the 
disclosures required under Sec.  1026.19(f)(1)(i), escrow account 
statements required pursuant to section 10 of RESPA, or other 
statements required by TILA. The Bureau proposed this provision under 
TILA section 105(a) and RESPA sections 10 and 19(a). The Bureau 
explained that the proposed provision would strengthen the informed use 
of credit by ensuring that consumers are not informed that consumers 
must pay fees prohibited by law, and enhance competition by ensuring 
that creditors do not attempt to gain a competitive advantage by 
charging prohibited fees, both of which are consistent with section 
105(a) of TILA. The Bureau also stated its belief that the proposal 
would result in the

[[Page 79892]]

meaningful advance disclosure of settlement costs and the elimination 
of kickbacks, referral fees, and other practices that tend to increase 
unnecessarily the costs of certain settlement services by ensuring that 
illegal fees are not included on the disclosures, consistent with 
section 19(a) of RESPA.
    The Bureau received no comments on this proposed provision. For the 
reasons stated in the proposal and based on the authority stated in the 
proposal, the final Sec.  1026.19(f)(5) is adopted with modifications 
from the proposal. For organizational purposes, the final rule limits 
the scope of the prohibition on charging fees for the preparation or 
delivery of the Closing Disclosure only. The full prohibition under 
Regulation X Sec.  1024.12 remains in effect.
19(g) Special Information Booklet at Time of Application
    Regulation X Sec.  1024.6 contains the provisions related to the 
special information booklet, which is required by section 5 of RESPA. 
See 12 U.S.C. 2604. The Bureau proposed Sec.  1026.19(g), which is 
substantially similar to the existing requirements in Regulation X, but 
modified to conform to the usage associated with TILA. The Bureau 
proposed this provision pursuant to its authority under TILA section 
105(a) and RESPA section 19(a). The Bureau also solicited feedback on 
whether the Consumer Handbook on Adjustable-Rate Mortgages (CHARM) 
booklet, required under Sec.  1026.19(b)(1), should be incorporated 
into the special information booklet.
    Proposed comment 19(g)(1)-1 would have provided that the Bureau 
may, after publishing a notice in the Federal Register, issue a revised 
or separate special information booklet that addresses transactions 
subject to Sec.  1026.19(g). The comment would have further clarified 
that the Bureau also may choose to permit the forms or booklets of 
other Federal agencies to be used by creditors, in which case the 
availability of the booklet or alternate materials for these 
transactions will be set forth in a notice in the Federal Register.
    Proposed comment 19(g)(1)-2 would have clarified that, when two or 
more persons apply together for a loan, the creditor complies with 
Sec.  1026.19(g) if the creditor provides a copy of the booklet to one 
of the persons applying. Proposed comment 19(g)(2)-1 would have 
explained that the special information booklet may be reproduced in any 
form, provided that no changes are made, except as otherwise provided 
under Sec.  1026.19(g), and that provision of the special information 
booklet as a part of a larger document does not satisfy the 
requirements of Sec.  1026.19(g). Comment 19(g)(2)-1 would have further 
clarified that any color, size and quality of paper, type of print, and 
method of reproduction may be used so long as the booklet is clearly 
legible. The Bureau explained that proposed Sec.  1026.19(g) was 
consistent with TILA's purposes in that it would increase consumer 
awareness of the costs of the transaction by informing consumers that 
settlement costs can be influenced by shopping, thereby promoting the 
informed use of credit. The Bureau further explained that the provision 
would enhance consumers' ability to shop for a mortgage loan, which 
will effect changes in the settlement process that will result in the 
elimination of kickbacks, referral fees, and other practices that tend 
to increase unnecessarily the costs of certain settlement services, 
consistent with the Bureau's authority under section 19(a) of RESPA. 
Proposed comment 19(g)(2)-2 would have clarified that the special 
information booklet may be translated into languages other than 
English.
    The Dodd-Frank Act amended RESPA section 5 to require that the 
booklet include, among other things, information about the trade-off 
between closing costs and interest rates over the life of the loan. See 
Dodd-Frank Act section 1450(2), amending section 5(b) of RESPA; 12 
U.S.C. 2604(b)(1)(D).
    At the time the Bureau was receiving public comments on this 
proposal, the Bureau also was considering the 2012 Loan Originator 
Proposal. In the 2012 Loan Originator Proposal, the Bureau proposed to 
use its exemption authority under the Dodd-Frank Act to allow creditors 
and loan originator organizations to continue making available loans 
with consumer-paid upfront points or fees. As noted in the discussion 
of comments in the section-by-section analysis of Sec.  
1026.19(e)(2)(ii) above, the 2012 Loan Originator Proposal generally 
would have required creditors to make a zero-zero alternative loan 
available to consumers before imposing upfront points or fees in a 
closed-end mortgage transaction.\249\ The Bureau in that proposal 
solicited comments on variations and alternatives to this approach.
---------------------------------------------------------------------------

    \249\ In the 2013 Loan Originator Final Rule, the Bureau adopted 
a complete exemption to the statutory ban on upfront points and fees 
set forth in TILA section 129B(c)(2)(B)(ii). See 78 FR 11279, 11370 
(Feb. 15, 2013).
---------------------------------------------------------------------------

Comments
    Commenters had several suggestions for some of the RESPA-required 
content for the special information booklet. In response to the 2012 
Loan Originator Proposal, commenters explained that educating consumers 
generally about the relationship between interest rates and other costs 
would be preferable to a requirement that loan originators offer 
consumers particular terms. In addition, commenters stated that a 
mandated presentation of a zero-zero alternative may cause borrowers to 
believe that such an alternative is best in all cases, where in fact, 
the benefit to a borrower depends on many factors (including how long 
the consumer plans to remain in the mortgage, particularly as interest 
rates rise). Trade associations representing banks recommended that the 
special information booklet demonstrate hypothetical trade-offs to 
assist consumers in selecting loan options, similar to the current 
RESPA GFE. One trade association representing banks also emphasized 
that the Bureau should include generic information about the trade-off 
between a loan's interest rate and its points and fees. The commenter 
explained that many consumers shop based on rate and points and the 
commenter stated that it believed more would if they were advised 
accordingly. The commenter further explained that increased consumer 
interest in such shopping will drive the market to provide even more 
than the many rate and point choices available today, alleviating the 
need for mandated options. A commenter also explained that the booklet 
offers the opportunity and right platform to test various approaches to 
informing borrowers of available options.
    With respect to combining the CHARM booklet with the special 
information booklet, a trade association representing settlement agents 
did not object to including the CHARM booklet with other materials. A 
trade association representing banks noted there were advantages and 
drawbacks to including the CHARM materials with the special information 
booklet. Among the advantages were that it would serve a growing market 
as ARM loans may become more popular as interest rates rise. Among the 
drawbacks were that the CHARM booklet is 36 pages long and would be 
very large compared to the booklet. The commenter believed it was 
important, in any event, that the CHARM materials be made accessible 
and easily understandable for consumers by the Bureau. A non-depository 
lender stated that the CHARM and special information booklets should 
remain separate. The commenter explained that CHARM booklet is directed 
to consumers who

[[Page 79893]]

have applied for an ARM, and that it would be ill-suited to consumers 
who apply for a fixed rate loan. Credit union commenters supported 
consolidating the CHARM booklet with the special information booklet. 
One credit union commenter explained doing so would streamline the 
number of documents received by borrowers at the time of application 
without any detrimental effect to the borrower. The credit union 
commenter also explained that the combined document contains all of the 
information that a borrower would find useful in the application 
process while reducing information overload. Another credit union 
commenter explained that combining the CHARM booklet with the special 
information booklet would reduce information overload and would help 
consumers better understand the application process. A software company 
commenter requested clarification on whether two versions of the 
special information booklet will need to be made--one for ARMs and one 
for all others.
    A professional association representing attorneys recommended that 
the special information booklet could be used to reduce the length and 
complexity of the integrated disclosures by containing information 
about the transaction that does not relate to the exchange of funds.
    A non-depository lender supported proposed comment 19(g)(1)-2, 
clarifying that when two or more persons apply together for a mortgage 
loan, lenders are in compliance with the rule by providing a copy of 
the booklet to one of the persons applying. Trade associations 
representing banks and a non-depository lender commenter requested that 
the Bureau put high priority on developing web-based information that 
is linked to the forms as well as the booklet. Commenters explained 
that internet links would efficiently explain the forms to borrowers, 
and internet-based information and accompanying hard copy key or 
glossary materials could alleviate the need for explanatory information 
in the forms, making the forms shorter and more inviting to consumers. 
A trade association representing banks recommended that the Bureau 
include an interactive, online version made available to consumers and 
housing counselors.
    A software company commenter requested clarification on whether the 
booklet would be required to be provided on 8.5 x 11 paper as a 
separate disclosure. The commenter also requested clarification on 
whether the graphic on the cover can be removed.
    A trade association representing banks explained that the special 
information booklet and any accompanying web-based information 
accompanying the disclosures were as important as the forms themselves. 
The commenter explained that these materials should be proposed along 
with the tested and revised loan forms for comment by stakeholders. One 
non-depository lender requested that the Bureau seek public input when 
developing the booklet because it would provide almost as much 
information as the disclosures themselves. A trade association 
representing settlement agents reiterated its support for a public 
process in developing the special information booklet.
Final Rule
    The final rule adopts Sec.  1026.19(g) substantially as proposed 
and adopts commentary to that section substantially as proposed, along 
with other modifications discussed below. The Bureau views the special 
information booklet as part of the Bureau's broader mission to educate 
consumers about consumer financial products, and the Bureau intends to 
develop the special information booklet together with other educational 
materials that will be accessible on its public Web site. The Bureau 
also plans to update the booklet in the future to reflect the 
integrated disclosures adopted in this final rule, the amendments to 
section 5 of RESPA in section 1450 of the Dodd-Frank Act, and other 
Bureau rulemakings.
    Creditor to provide the special information booklet under Sec.  
1026.19(g)(1). To define the term ``special information booklet,'' 
final Sec.  1026.19(g)(1) includes clarifying language referring to the 
special information booklet required pursuant to section 5 of RESPA (12 
U.S.C. 2604) to help consumers applying for federally related mortgage 
loans understand the nature and cost of real estate settlement 
services.
    The final rule clarifies proposed Sec.  1026.19(g)(1)(i) by 
omitting language that would have referred to the consumer's 
application ``for credit.'' The application under Sec.  1026.19(g)(1) 
has the same meaning as the application under Sec.  1026.2(a)(3)(ii). 
See the section-by-section analysis of Sec.  1026.2. The final rule 
refers only to the consumer's ``application.'' To facilitate 
compliance, the final rule includes comment 19(g)(1)-3 to explain that 
``application'' is defined in Sec.  1026.2(a)(3)(ii). The comment also 
clarifies that the creditor need not provide the booklet under Sec.  
1026.19(g)(1)(i) when it denies an application or if the consumer 
withdraws the application before the end of the three-business-day 
period. The comment also includes a cross-reference to comment 
19(e)(1)(iii)-3 for additional guidance on denied or withdrawn 
applications.
    The final rule makes other amendments to the provisions in proposed 
Sec.  1026.19(g)(1)(i) to clarify the timing requirements applicable to 
Sec.  1026.19(g). Proposed Sec.  1026.19(g)(1)(i) would have stated 
that the creditor must deliver the special information booklet ``not 
later than three business days after the application is received,'' and 
that the creditor need not provide the booklet if the creditor denies 
the consumer's application before the end of the ``three-day period.'' 
To set forth the timing requirements of Sec.  1026.19(g) more clearly, 
the final rule provides that the creditor shall deliver or place in the 
mail the booklet not later than three business days after the 
``consumer's application'' is received, and that the creditor need not 
provide the booklet if the creditor denies the consumer's application 
before the end of the ``three-business-day period.''
    The final rule also revises Sec.  1026.19(g)(1)(i) to state that 
the creditor shall deliver or place in the mail the special information 
booklet, to conform to the language of Sec.  1026.19(e) and (f), as 
well as RESPA section 5(d), which states that the booklet ``shall be 
provided by delivering it or placing it in the mail.''
    In addition, comment 19(g)(1)-1 revises proposed comment 19(g)(1)-1 
to describe more clearly how the Bureau will issue revised or separate 
special information booklets. Specifically, comment 19(g)(1)-1 states 
that the Bureau may, ``from time to time,'' issue revised or 
``alternative versions'' of the special information booklet that 
addresses transactions subject to Sec.  1026.19(g). Proposed comment 
19(g)(1)-1 would have stated that the Bureau may issue a revised or 
``separate'' special information booklet that addresses transactions 
subject to Sec.  1026.19(g).
    Comment 19(g)(1)-1 includes these revisions because the Bureau 
believes the reference in proposed comment 19(g)(1)-1 to a ``separate'' 
booklet does not reflect the Bureau's interpretation of its authority 
under RESPA section 5 to issue alternate booklets that reflect 
different product types. As discussed above, commenters made a number 
of suggestions for revising the special information booklet or 
combining it with the CHARM booklet applicable to adjustable rate 
mortgage loans. Also as noted above, Dodd-Frank Act section 1450 
amended RESPA section 5 to

[[Page 79894]]

require that the special information booklet include additional 
content. Some of this content may be more relevant to some products 
than others. And while Sec.  1026.19(g)(1)(iii) currently limits the 
scope of coverage of the special information booklet to first-lien, 
purchase-money consumer credit transactions secured by real property, 
the Bureau plans to review the scope of Sec.  1026.19(g) as it develops 
integrated disclosure requirements for other loans in future 
rulemakings.
    The Bureau expects to publish revisions to the special information 
booklet in the future, for example, to conform the booklet's content to 
changes resulting from the Bureau's Title XIV Rulemakings. The Bureau 
also expects to publish revisions to implement the Dodd-Frank Act's 
amendments to RESPA section 5 and will take into account comments 
received in response to the proposal and other feedback received from 
interested parties in its design. See Dodd-Frank Act section 1450(2), 
amending section 5(b) of RESPA; 12 U.S.C. 2604(b)(1)(D). For example, 
the Bureau may determine that alternative versions of the booklet for 
particular product types may aid consumer understanding by providing 
consumers with information most relevant to their situation. Finally, 
the Bureau believes comment 19(g)(1)-1 is consistent with the current 
definition of ``special information booklet'' in Regulation X Sec.  
1024.2, which currently provides that ``[t]he Bureau may issue or 
approve additional booklets or alternative booklets by publication of a 
Notice in the Federal Register.''
    Comment 19(g)(1)-1 also differs from proposed comment 19(g)(1)-1 in 
terms of when a revised or alternative version of the booklet may be 
issued. Under the comment, such a booklet may be issued ``by'' 
publishing a notice in the Federal Register. The proposed comment would 
have stated that the Bureau may issue a revised or separate booklet 
``after'' publishing a notice in the Federal Register. The Bureau 
believes that the comment is clearer than the proposed commentary, 
which could have implied that an additional step was necessary to issue 
the booklet after publication of the Federal Register notice. In 
addition to these modifications, comment 19(g)(1)-1 includes a 
clarifying revision that the Bureau also may choose to permit the forms 
or booklets of other Federal agencies ``to be used by creditors.''
    The final rule reorganizes Sec.  1026.19(g)(1)(iii) to clarify the 
types of transactions for which the booklet is not required to be 
provided. Proposed Sec.  1026.19(g)(1)(iii) would have provided that 
the creditor or mortgage broker need not provide the booklet to the 
consumer for transactions identified in Sec.  1026.19(g)(1)(iii)(A) 
through (C), as well as those identified in Sec.  
1026.19(g)(1)(iii)(D), which would have listed ``[a]ny other consumer 
credit transaction secured by real property whose purpose is not the 
purchase of a one-to-four family residential property.'' The 
transactions under proposed Sec.  1026.19(g)(1)(iii)(D) would have been 
inclusive of the transactions under Sec.  1026.19(g)(1)(iii)(A) through 
(C). Accordingly, the final rule moves the reference to the class of 
transactions that would have been identified in proposed Sec.  
1026.19(g)(1)(iii)(D) to the more general provision in Sec.  
1026.19(g)(1)(iii), and retains the classes of transactions identified 
in Sec.  1026.19(g)(1)(iii)(A) through (C) as examples. As revised, 
under final Sec.  1026.19(g)(1)(iii), the creditor or mortgage broker 
need not provide the booklet to the consumer for a consumer credit 
transaction secured by real property, the purpose of which is not the 
purchase of a one-to-four family residential property, including, but 
not limited to, the transactions identified in the proposal (i.e., 
refinancing transactions, closed-end loans secured by a subordinate 
lien, and reverse mortgages).
    In addition, the final rule revises proposed Sec.  
1026.19(g)(1)(iii)(B), which would have referred to ``[c]losed-end 
loans when the lender takes a subordinate lien,'' to refer instead to 
``[c]losed-end loans secured by a subordinate lien.'' The final rule 
includes this change to clarify that the booklet is not required to be 
provided when the creditor is extending only a closed-end loan secured 
by a subordinate lien. However, the booklet would be required to be 
provided when the creditor is extending a closed-end first-lien 
consumer credit transaction secured by real property for the purpose of 
purchasing a one-to-four family residential property, even if the 
creditor also is extending a closed-end subordinate-lien loan 
contemporaneously. The creditor would not be required under Sec.  
1026.19(g)(i)(iii)(B) to provide a second booklet for the subordinate-
lien loan.
    Permissible changes under Sec.  1026.19(g)(2). The final rule 
revises proposed Sec.  1026.19(g)(2) to provide clearer language with 
respect to permissible changes to the booklet. In addition, comment 
19(g)(2)-1 includes a technical revision to the first sentence of the 
comment to refer more specifically to Sec.  1026.19(g)(2) and includes 
a cross-reference to comment 19(g)(2)-3, which is discussed in more 
detail below. A minor revision has been made to improve the language in 
final Sec.  1026.19(g)(2)(ii), and final Sec.  1026.19(g)(2)(iv) 
includes a technical revision to replace a reference to ``the lender'' 
with a reference to ``the creditor,'' to conform to the terminology of 
Regulation Z. Comment 19(g)(2)-2 corrects a typographical error in the 
last sentence of the proposed comment and includes a reference to 
comment 19(g)(2)-3, discussed below.
    In addition, the final rule amends proposed Sec.  1026.19(g)(2)(iv) 
to provide that the cover of the booklet may be in any form and may 
contain any drawings, pictures or artwork, ``provided that the title 
appearing on the cover shall not be changed.'' As discussed below, this 
change has been made because the Bureau believes that future revised or 
alternative versions of the booklet will be more effective for 
consumers if creditors are not permitted to change the title. Proposed 
Sec.  1026.19(g)(2)(iv) would have provided that ``[t]he cover of the 
booklet may be in any form and may contain any drawings, pictures or 
artwork, provided that the words `settlement costs' are used in the 
title.'' This language would have reflected the current requirement 
under Regulation X Sec.  1024.6(d)(2) applicable to the version of the 
booklet presently used by lenders. As noted above, the Bureau plans to 
update the special information booklet consistent with the amendments 
to section 5 of RESPA in section 1450 of the Dodd-Frank Act and to 
reflect the integrated disclosures. And as discussed above with respect 
to comment 19(g)(1)-1, the Bureau intends to issue a revised version, 
and possibly alternative versions of the special information booklet 
that implement the expanded content requirements of RESPA section 5 and 
the integrated disclosure requirements of Sec.  1026.19(e) and (f). 
Because the amendments to RESPA section 5 include new content beyond 
settlement cost information, the Bureau expects future revised or 
alternative versions of the booklet will address topics in addition to 
settlement costs. Similarly, the Bureau expects the title of the 
revised or alternative versions of the booklet will refer to topics 
other than settlement costs.
    The Bureau is concerned that, without this modification, the 
restriction on the permissible changes to the title (i.e., the title 
must include the words ``settlement costs'') will become obsolete and 
may prove too narrow once the Bureau issues an updated version of the 
special information booklet covering a broader range of topics. 
Although updates to the booklet are still under consideration by

[[Page 79895]]

the Bureau, the Bureau believes the final rule must address future 
versions of the booklet so that the booklet's title accurately conveys 
to consumers the full range of content. Accordingly, the final rule 
amends Sec.  1026.19(g)(2)(iv) to state expressly that creditors may 
not change the title of the booklet.
    At the same time, the Bureau recognizes creditors should be 
permitted to continue to provide booklets already in use until the 
Bureau issues an update to address topics in addition to settlement 
costs. Accordingly, the final rule includes comment 19(g)(2)-3, which 
refers to the general restriction on changing the booklet's title under 
Sec.  1026.19(g)(2)(iv) and comment 19(g)(1)-1, and explains that, 
until the Bureau issues a version of the special information booklet 
relating to the Loan Estimate and Closing Disclosure under Sec. Sec.  
1026.37 and 1026.38, for applications that are received on or after 
August 1, 2015, a creditor may change the title appearing on the cover 
of the version of the special information booklet in use before August 
1, 2015, provided the words ``settlement costs'' are used in the title.
    The final rule includes this comment to facilitate compliance for 
creditors using the current version of the special information booklet 
that does not address the integrated disclosure requirements of Sec.  
1026.19(e) or (f) until the Bureau issues an updated version for 
applications subject to the integrated disclosure requirements. In the 
event that the Bureau does not issue a revised or alternative version 
of the booklet that addresses the integrated disclosure requirements by 
the effective date of this final rule (August 1, 2015), the Bureau 
believes creditors should be permitted to rely on booklets they may 
have already modified in accordance with current Regulation X Sec.  
1024.6(d), including any permissible modifications creditors have made 
to the title. The Bureau believes this commentary is appropriate 
because a rule that restricts a creditor's ability to change the title 
of the current version of the booklet may impose unnecessary compliance 
burden on creditors without material consumer benefit. To provide 
creditors with guidance on compliance with the effective date of the 
final rule, comment 19(g)(2)-3 also contains a cross-reference to 
comment 1(d)(5)-1.
    Clarifications. A commenter requested clarification on whether the 
graphic on the cover can be removed and whether the booklet would be 
required to be provided on 8.5 x 11 paper as a separate disclosure. 
Final Sec.  1026.19(g)(2) permits certain changes to the booklet, 
including changes to the graphics on the cover. Final Sec.  
1026.19(g)(2)(iv) provides that the cover of the booklet may be in any 
form and may contain any drawings, pictures, or artwork, provided the 
words ``settlement costs'' are used in the title. The booklet is not 
required to be provided on 8.5 x 11 paper. Comment 19(g)(2)-1 clarifies 
that any color, size and quality of paper, type of print, and method of 
reproduction may be used so long as the booklet is clearly legible.
    Final provisions. Final Sec.  1026.19(g)(1) and (2), comments 
19(g)(1)-1, -2, and -3, 19(g)(2)-1, and comments 19(g)(2)-1, -2, and -3 
are adopted pursuant to the Bureau's authority under TILA section 
105(a) and RESPA section 19(a). The final rule and commentary are 
consistent with TILA's purposes in that it will increase consumer 
awareness of the costs of the transaction by informing consumers that 
settlement costs can be influenced by shopping, thereby promoting the 
informed use of credit. The final rule and commentary will enhance 
consumers' ability to shop for a mortgage loan, which will effect 
changes in the settlement process that will result in the elimination 
of kickbacks, referral fees, and other practices that tend to increase 
unnecessarily the costs of certain settlement services, consistent with 
the Bureau's authority under section 19(a) of RESPA. The final rule and 
commentary implement Dodd-Frank Act section 1450, which amends RESPA 
section 5(a) and (b) to set forth new content for the special 
information booklet.

Section 1026.20 Disclosure Requirements Regarding Post-Consummation 
Events

20(e) Escrow Account Cancellation Notice for Certain Mortgage 
Transactions
    Sections 1461 and 1462 of the Dodd-Frank Act amended TILA to create 
a new section 129D, which establishes certain requirements for escrow 
accounts for consumer credit transactions secured by a first lien on a 
consumer's principal dwelling (other than a consumer credit transaction 
under an open-end credit plan or a reverse mortgage). 15 U.S.C. 
1639d(a) through (j). New TILA section 129D(h) and (j) require certain 
disclosures when an escrow account is established and certain other 
disclosures when an escrow account is refused or cancelled by the 
consumer, respectively.
    Specifically, new TILA section 129D(h) establishes that a creditor 
must provide a disclosure with the information set forth under TILA 
section 129D(h) when an impound, trust, or other type of account for 
the payment of property taxes, insurance premiums, or other purposes 
relating to real property securing a consumer credit transaction is 
established in connection with the transaction (the Pre-Consummation 
Escrow Establishment Disclosure). Section 129D(j)(1)(A) establishes 
that a creditor or servicer must provide a disclosure with the 
information set forth under TILA section 129D(j)(2) when an impound, 
trust, or other type of account for the payment of property taxes, 
insurance premiums, or other purposes relating to real property 
securing a consumer credit transaction is not established in connection 
with the transaction (the Pre-Consummation Escrow Waiver Disclosure). 
Section 129D(j)(1)(B) establishes that a creditor or servicer must 
provide disclosures after consummation with the information set forth 
under TILA section 129D(j)(2) when a consumer chooses, and provides 
written notice of the choice, to close the consumer's escrow account 
established in connection with a consumer credit transaction secured by 
real property and in accordance with any statute, regulation, or 
contractual agreement (the Post-Consummation Escrow Cancellation 
Disclosure).
    The Board's 2011 Escrows Proposal would have implemented the new 
TILA escrow requirements, and most aspects of that proposal have been 
implemented in the Bureau's 2013 Escrows Final Rule. See 78 FR 4726 
(Jan. 22, 2013). But, for reasons discussed in greater detail in the 
section-by-section analysis of Sec.  1026.38(l)(7) (Escrow account), 
the Bureau proposed to implement the Pre-Consummation Escrow 
Establishment Disclosure and Pre-Consummation Escrow Waiver Disclosure, 
along with certain other new disclosure requirements for mortgage 
transactions established by Title XIV (collectively, Affected Title XIV 
Disclosures), as part of the TILA-RESPA Proposal.
    Additionally, on November 23, 2012, the Bureau issued a final rule 
effectively exempting persons from providing the Post-Consummation 
Escrow Cancellation Disclosure. See 77 FR 70105 (Nov. 23, 2012). In 
that final rule, the Bureau stated that it had concluded that delaying 
the Post-Consummation Escrow Cancellation Disclosure and coordinating 
its implementation with that of the integrated disclosure requirements 
is in the interest of industry and consumers alike. 77 FR 70105, 70111 
(Nov. 23, 2012). The Bureau believed that implementing the Post-
Consummation Escrow Cancellation Disclosure along with the

[[Page 79896]]

integrated disclosure requirements would allow the Bureau to use 
feedback it has received from consumer testing conducted prior to the 
TILA-RESPA Proposal, the comments on that proposal, and any additional 
consumer testing conducted subsequent to the proposal to harmonize the 
content and format of the Post-Consummation Escrow Cancellation 
Disclosure, the Pre-Consummation Escrow Waiver Disclosure, and the 
integrated disclosure. The Bureau stated its belief that consumers 
would benefit from a more fully integrated and synchronized overall 
mortgage disclosure scheme, and industry would benefit from a more 
coordinated implementation of the overall mortgage disclosure scheme 
mandated by the Dodd-Frank Act and implemented by the Bureau. The 
Bureau also noted that commenters to the Board's 2011 Escrows Proposal 
urged the Board to delay implementation of the Dodd-Frank Act's escrow 
disclosure requirements until the Bureau could finalize the integrated 
disclosure requirements. The commenters stated that harmonizing the 
rulemakings would allow for a comprehensive approach, and avoid 
duplicative forms and repetitive rulemakings. The Bureau believes that 
it is important to coordinate the implementation and requirements of 
the Pre-Consummation Escrow Establishment Disclosure, the Pre-
Consummation Escrow Waiver Disclosure, and the Post-Consummation Escrow 
Cancellation Disclosure, because it will result in a more comprehensive 
and harmonized set of escrow disclosures, which will aid consumer 
understanding and facilitate compliance for industry.
    Accordingly, in this final rule, the Bureau is adopting Sec.  
1026.20(e) to implement the Post-Consummation Escrow Cancellation 
Disclosure, pursuant to its authority under TILA section 105(a), Dodd-
Frank Act section 1032(a), and for residential mortgage loans, Dodd-
Frank Act section 1405(b). Disclosure of this information would ensure 
that consumers have the facts to understand a key aspect of their 
mortgage loan and avoid the uninformed use of credit, consistent with 
the purpose of TILA. The Bureau also believes that Sec.  1026.20(e) 
ensures that the features of the mortgage transaction, both initially 
and over the term of the transaction, are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
mortgage transaction, in light of the facts and circumstances, 
consistent with Dodd-Frank Act section 1032(a), and improves consumer 
awareness and understanding of residential mortgage loans, which is in 
the interest of consumers and the public, consistent with section 
1405(b). Except as otherwise discussed below, Sec.  1026.20(e) 
generally adopts the proposed Post-Consummation Escrow Disclosure 
Cancellation requirements in the Board's 2011 Escrows Proposal.
20(e)(1) Scope
    In the Board's 2011 Escrows Proposal, the Board proposed to add a 
new Sec.  226.20(d) to Regulation Z to implement the disclosure 
requirements of TILA sections 129D(j)(1)(B) and 129D(j)(2), as enacted 
by section 1462 of the Dodd-Frank Act. The Board stated in the proposal 
that TILA section 129D(j)(1)(B) requires a creditor or servicer to 
provide the disclosures set forth in TILA section 129D(j)(2) when a 
consumer requests closure of an escrow account that was established in 
connection with a transaction secured by real property.
    The disclosure requirements under proposed Sec.  226.20(d), 
however, would have covered closed-end credit transactions secured by a 
first lien on real property or a dwelling. The Board stated in the 
proposal its belief that the information disclosed when an escrow 
account will be cancelled likely would be just as useful to a consumer 
who has a loan secured by manufactured housing as it would to a 
consumer who has a mortgage loan secured by a site-built home. The 
Board also believed that the coverage of all dwellings would ease 
compliance burden for creditors because the coverage of all dwellings 
would eliminate the analysis that creditors would have to undertake to 
determine whether and which disclosures would be triggered when a 
transaction will be secured by any one of various types of dwellings. 
The Board also proposed to apply Sec.  226.20(d) to instances in which 
the creditor or servicer decides independently to cancel an escrow 
account. The Board believed that a consumer whose escrow account will 
be closed should be informed of the risks attendant with not having an 
escrow account, even if the consumer is not requesting the cancellation 
of the account.
Comments
    Some industry commenters responding to the Board's 2011 Escrows 
Proposal asserted that the Board should not apply any of the proposed 
escrow disclosure requirements to transactions secured only by real 
property (e.g., vacant or unimproved land), because escrow accounts are 
rarely established for such transactions. Commenters also asserted that 
none of the disclosure requirements should apply to dwellings because 
dwellings may include personal property, such as manufactured homes, 
recreational vehicles, and boats, and escrow accounts are seldom 
established for such transactions. Some commenters, including a large 
bank commenter and an industry trade association representing banks, 
asserted that the Board exceeded its authority when it proposed to 
apply the escrow disclosure requirements to transactions secured by 
dwellings and transactions secured only by real property.
Final Rule
    The Bureau is adopting proposed Sec.  226.20(d) in this final rule 
renumbered as Sec.  1026.20(e)(1), pursuant to its authority under TILA 
section 105(a), Dodd-Frank Act section 1032(a), and for residential 
mortgage loans, Dodd-Frank Act section 1405(b). Other than a 
modification to exempt reverse mortgage transactions under Sec.  
1026.33, Sec.  1026.20(e)(1) finalizes the scope as proposed by the 
Board. The modification aligns the scope of the Post-Consummation 
Escrow Cancellation Disclosure more closely with the scope of Sec.  
1026.19(f) \250\ and the post-consummation partial payment disclosure 
required by Sec.  1026.39. The Bureau believes this modification will 
facilitate compliance with the integrated disclosure requirements and 
Post-Consummation Escrow Cancellation Disclosure requirements. Further, 
the Bureau noted in the TILA-RESPA Proposal that reverse mortgages have 
unusual terms and features, and that it intended to address these 
unique transactions in a separate, future rulemaking. See 77 FR 51115, 
51137, 51157 (Aug. 23, 2012).
---------------------------------------------------------------------------

    \250\ For reasons set forth in greater detail in the section-by-
section analysis of Sec.  1026.38(l)(7) below, the Bureau proposed 
to apply the TILA section 129D escrow requirements to all 
transactions subject to proposed Sec.  1026.19(f), which would have 
included all closed-end credit transactions secured by real 
property, other than a reverse mortgage subject to Sec.  1026.33, 
whether or not secured by a first-lien on real property.
---------------------------------------------------------------------------

    The Bureau has considered the comments regarding the scope of 
proposed Sec.  226.20(d). Final Sec.  1026.20(e)(1) only applies to 
consumer credit transactions for which an escrow account was 
established. Therefore, if escrow accounts are not typically 
established in connection with consumer credit transactions secured by 
personal property used as dwellings, or by vacant land, the disclosure 
requirement will not be triggered, and

[[Page 79897]]

thus, the rule may not be a compliance burden. In addition, consumer 
credit transactions are subject to substantial variability. The Bureau 
believes that requiring the provision of the Post-Consummation Escrow 
Cancellation Disclosure to consumers in transactions secured by 
personal property (e.g., manufactured homes, boats, or recreational 
vehicles) used as dwellings, or transactions secured only by real 
property (e.g., vacant or unimproved land), however rarely escrow 
accounts may be established in such transactions, may provide an 
important consumer protection if, in fact, an escrow account was set 
up. Further, the coverage of all dwellings would facilitate compliance 
because the coverage of all dwellings would eliminate the analysis that 
creditors would have to undertake to determine whether the cancellation 
of the escrow account established for a loan secured by a particular 
type of dwelling would trigger the disclosures. Section 1026.20(e)(1) 
also provides that the term ``escrow account'' has the same meaning as 
under 12 CFR 1024.17(b), and the term ``servicer'' has the same meaning 
as under 12 CFR 1024.2(b).
    The Bureau is also finalizing comment 20(d)-1 proposed by the 
Board, renumbered as comment 20(e)(1)-1. Comment 20(e)(1)-1 explains 
that the term ``real property'' includes vacant and unimproved land. It 
clarifies that the term ``dwelling'' includes vacation and second homes 
and manufactured homes, boats, and trailers used as residences, and 
refers to additional guidance regarding the term provided by Sec.  
1026.2(a)(19) and related commentary. The Bureau is also finalizing 
comments 20(d)(2)-2 and -3 as proposed by the Board, renumbered as 
comments 20(e)(1)-2 and -3, respectively. Comment 20(e)(1)-2 explains 
that neither creditors nor servicers are required to provide the 
disclosures required by Sec.  1026.20(e)(2) when an escrow account that 
was established solely in connection with the consumer's delinquency or 
default on the underlying debt obligation will be cancelled. Comment 
20(e)(1)-3 explains that neither creditors nor servicers are required 
to provide disclosures required by Sec.  1026.20(e)(2) when the 
underlying debt obligation for which an escrow account was established 
is terminated, including by repayment, refinancing, rescission, and 
foreclosure. Finally, as discussed above, the Board also proposed to 
require the provision of the disclosure when the creditor or servicer 
decides independently to cancel an escrow account. The Bureau is also 
finalizing this aspect of the Board's proposal without modification.
20(e)(2) Content of Required Disclosures
    As discussed above, new TILA section 129D(j)(1)(B) establishes that 
a creditor or servicer must provide disclosures with the information 
set forth under TILA section 129D(j)(2) when a consumer chooses, and 
provides written notice of the choice, to close the consumer's escrow 
account established in connection with a consumer credit transaction 
secured by real property, and in accordance with any statute, 
regulation, or contractual agreement. As noted above, the statutory 
content requirements for this Post-Consummation Escrow Cancellation 
Disclosure are the same as the content requirements for the Pre-
Consummation Escrow Waiver Disclosure.
    The Board proposed Sec.  226.20(d)(2), which would have set forth 
the content requirements of the Post-Consummation Escrow Cancellation 
Disclosure. Proposed Sec.  226.20(d)(2) would have required a creditor 
or servicer to provide a statement on the escrow cancellation notice 
that the notice is to inform the consumer that the escrow account on 
the consumer's mortgage is being closed, the reason for its closure, 
and the risk of not having an escrow account. It would have also 
required the creditor or servicer to disclose the dollar amount of any 
fee that the consumer will be charged in connection with the closure. 
Proposed Sec.  226.20(d)(2) would have further required the creditor or 
servicer to explain what an escrow account is and how it works, and to 
describe the consequences of the failure to pay for property costs, 
such as taxes and property insurance. Proposed Sec.  226.20(d)(2) would 
have additionally required the creditor or servicer to inform the 
consumer whether the consumer can request that the escrow account be 
kept open. If the consumer can make such request, proposed Sec.  
226.20(d)(2) would have required the creditor or servicer to disclose 
the telephone number that the consumer can use to make the request and 
the latest date by which the consumer can make the request. The 
proposal would have also provided that if the creditor or servicer 
independently decides to cancel the escrow account, rather than 
agreeing to close it at the request of the consumer, and does not 
charge a fee in connection with the cancellation, the creditor or 
servicer shall omit this disclosure from the table.
Comments
    A national consumer advocacy group asserted that the Board should 
require the creditor or servicer to state a reason if it decides 
independently to cancel the escrow account, or else the consumer would 
lack the information needed to determine whether the escrow 
cancellation is legitimate. Comments from industry commenters also 
indicated that some industry commenters disagreed with the model 
language the Board proposed to implement the content requirements that 
the Dodd-Frank Act established for the Post-Consummation Escrow 
Cancellation Disclosure. A national trade association representing 
property insurance carriers expressed concern that the model language 
the Board proposed to describe lender-placed insurance might have 
violated the McCarran-Ferguson Act because some States have established 
regulations with respect to notifying consumers of the placement of 
lender-placed insurance by their creditors.
    A regional bank holding company commenter asserted that the 
proposed requirement that servicers must disclose the latest date by 
which the consumer can make the request to keep the consumer's escrow 
account was unclear because the proposed rule and corresponding 
commentary do not provide direction as to whether there is a minimum or 
maximum time limit for this date, or whether the disclosure is optional 
based on whether or not the creditor has an operational cut-off date. A 
large bank commenter sought clarification from the Board with respect 
to how creditors that do not charge a fee for the cancellation of an 
escrow account are to comply with the proposed requirement that such 
fee be disclosed.
Final Rule
    Pursuant to its authority under TILA section 105(a), Dodd-Frank Act 
section 1032(a), and for residential mortgage loans, Dodd-Frank Act 
section 1405(b), the Bureau is adopting the proposed content 
requirements of Sec.  226.20(d)(2), with certain modifications and 
adjustments in response to consumer testing and comments received, in 
Sec.  1026.20(e)(2). Under the heading ``Escrow Closing Notice,'' Sec.  
1026.20(e)(2) provides that if an escrow account was established in 
connection with a transaction subject to Sec.  1026.20(e), and the 
escrow account will be cancelled, the creditor or servicer shall 
disclose clearly and conspicuously the information set forth in Sec.  
1026.20(e)(2)(i) and (ii).
    Section 1026.20(e)(2)(i) requires a statement informing the 
consumer of the date on which the consumer will no longer have an 
escrow account. It also

[[Page 79898]]

requires a statement that an escrow account may also be called an 
impound or trust account, the reason why the escrow account will be 
closed, and a statement that without an escrow account, the consumer 
must pay all property costs, such as taxes and homeowner's insurance, 
directly, possibly in one or two large payments a year. The final rule 
provision also requires a table, titled ``Cost to you,'' that contains 
an itemization of the amount of any fee the creditor or servicer 
imposes on the consumer for closing the consumer's escrow account in 
connection with the transaction, labeled ``Escrow Closing Fee,'' and a 
statement that the fee is for closing the escrow account.
    In addition to the legal authorities referenced above, TILA section 
129D(j)(2)(D) establishes that the Bureau may include in the Post-
Consummation Escrow Cancellation Disclosure such other information as 
it determines necessary for the protection of the consumer. A consumer 
advocacy group asserted that the Board's proposed notice requirements 
would not have given consumer sufficient information to enable them to 
make informed decisions in the event that an existing escrow account is 
canceled. In consideration of the consumer advocacy group's comments, 
the Bureau has added the requirement to Sec.  1026.20(e)(2)(i) that the 
creditor or servicer include on the Post-Consummation Escrow 
Cancellation Disclosure a statement informing the consumer of the date 
on which the consumer will no longer have an escrow account. The Bureau 
believes that by identifying the point in time at which the 
responsibility of ensuring that previously-escrowed obligations are 
paid in a timely manner will transfer to the consumer, the disclosure 
will assist consumers in making decisions that will help ensure that 
the obligations are paid in such manner. For instance, knowing that the 
escrow account will be canceled as of a date certain may motivate the 
consumer to save a percentage of the consumer's income to ensure that 
the consumer's property tax obligation is paid when it becomes due.
    Under the reference ``In the future,'' final Sec.  
1026.20(e)(2)(ii)(A) requires a statement of the consequences if the 
consumer fails to pay property costs, including the actions that a 
State or local government may take if property taxes are not paid and 
the actions the creditor or servicer may take if the consumer does not 
pay some or all property costs, such as adding amounts to the loan 
balance, adding an escrow account to the loan, or purchasing a property 
insurance policy on the consumer's behalf that may be more expensive 
and provide fewer benefits than a policy that the consumer could obtain 
directly. The Bureau has considered the comments and does not believe 
that the content requirements conflict with the McCarran-Ferguson Act, 
because it does not prohibit a creditor from complying with applicable 
State regulations on providing notifications to consumers with respect 
to the creditor's placement of such insurance.
    Section 1026.20(e)(2)(ii)(B) requires a statement of a telephone 
number the consumer may use to request information about the escrow 
cancellation. The Bureau understands the view of the consumer advocate 
commenter that in situations where the creditor or servicer 
independently cancels the consumer's escrow account, the consumer 
should be able to receive information about the reason for the 
cancellation. However, the Bureau believes that this consideration must 
be counterbalanced by the fact that there could be a variety of reasons 
for the cancellation such that it would be difficult to provide model 
disclosures that can be used to facilitate compliance. The Bureau 
believes the best way to balance these competing concerns is to require 
the creditor or servicer to provide the consumer with a telephone 
number that the consumer can use to request more information about the 
cancellation of the consumer's escrow account. Accordingly the Bureau 
is adopting final Sec.  1026.20(e)(2)(ii)(B), which requires a 
statement with a telephone number that the consumer can use to request 
additional information about the escrow account cancellation.
    The Bureau modified the proposed content requirements to address 
situations where the creditor or servicer does not have a cut-off date. 
Accordingly, Sec.  1026.20(e)(2)(C) requires a statement of whether the 
creditor or servicer offers the option of keeping the escrow account 
open and, as applicable, a telephone number the consumer can use to 
request that the account be kept open. Section 1026.20(e)(2)(ii)(D) 
requires a statement of whether there is a cut-off date by which the 
consumer can request that the account be kept open.
    The Bureau is also making modifications and adjustments to the 
Board's proposed content requirements to incorporate elements of the 
model language the Bureau is adopting for the Pre-Consummation Escrow 
Establishment Disclosure and the Pre-Consummation Escrow Waiver 
Disclosure. The model language the Bureau is adopting for the Pre-
Consummation Escrow Establishment Disclosure and the Pre-Consummation 
Escrow Waiver Disclosure is based on prototype language the Bureau 
created for both disclosures, which was refined over several rounds of 
testing, in response to feedback from consumer and industry 
participants to incorporate the use of plain language, simplify the 
disclosures, and improve accuracy and consumer comprehension. See 
Kleimann Testing Report at 228, 260, and 272.
    The Bureau believes that it is appropriate to incorporate elements 
of the model language that the Bureau is adopting for the Pre-
Consummation Escrow Establishment Disclosure and the Pre-Consummation 
Escrow Waiver Disclosure in the model language used for the Post-
Consummation Escrow Cancellation Disclosure. Such incorporation will 
harmonize the content of the Post-Consummation Escrow Cancellation 
Disclosure, the Pre-Consummation Escrow Establishment Disclosure, and 
the Pre-Consummation Escrow Waiver Disclosure and create a synchronized 
and comprehensive set of disclosures regarding escrow accounts. 
Consumers will also benefit from a more fully integrated and 
synchronized disclosure scheme. Additionally, as noted above, the Dodd-
Frank Act's statutory content requirements for the Pre-Consummation 
Escrow Waiver Disclosure and the Post-Consummation Escrow Cancellation 
Disclosure are the same. Accordingly, the Bureau believes that a more 
synchronized disclosure scheme for the Pre-Consummation Escrow Waiver 
Disclosure and the Post-Consummation Escrow Cancellation Disclosure 
will facilitate compliance for industry.
    The Bureau is finalizing comment 20(d)(2)-1 as proposed by the 
Board, renumbered as comment 20(e)(2)-1. Comment 20(e)(2)-1 explains 
that the clear and conspicuous standard generally requires that 
disclosures be in a reasonably understandable form and readily 
noticeable to the consumer. The Bureau is finalizing comment 
20(e)(2)(i)-1, which clarifies the requirement to disclose the Escrow 
Closing Fee. Comment 20(e)(2)(i)-1 explains that Sec.  1026.20(e)(2)(i) 
requires the creditor to itemize the amount of any fee the creditor or 
servicer imposes on the consumer in connection with the closure of the 
consumer's escrow account, labeled ``Escrow Closing Fee.'' If the 
creditor or servicer independently decides to cancel the escrow 
account, rather than agreeing to close it at the request of the 
consumer, and does not

[[Page 79899]]

charge a fee in connection with the cancellation, the creditor or 
servicer complies with Sec.  1026.20(e)(2)(i) by leaving the disclosure 
blank on the front-side of the one-page document described in Sec.  
1026.20(e)(4). The Bureau is making this clarification to harmonize the 
disclosure of the Escrow Closing Fee with the disclosure of the Escrow 
Waiver Fee required by Sec.  1026.38(l)(7)(i)(B)(2), discussed in 
greater detail below in the section-by-section analysis of Sec.  
1026.38(l)(7). The Bureau also believes that the comment addresses the 
clarification sought by a large bank commenter with respect to how 
creditors that do not charge a fee for the cancellation of an escrow 
account are to comply with the proposed requirement that such a fee be 
disclosed.
20(e)(3) Optional Information
    The Board proposed Sec.  226.20(d)(3), which would have provided 
that the creditor or servicer providing the Post-Consummation Escrow 
Cancellation Disclosure, may, at its option, include its name or logo, 
or the consumer's name, property address, or loan number on the 
disclosure so long as it complies with the form requirements that the 
Board proposed. Some commenters, including several industry trade 
associations representing banks and financial services companies 
asserted that creditors should be allowed to add whatever information 
they deem important to the Post-Consummation Escrow Cancellation 
Disclosure.
    Final rule. The Bureau has considered the comments, and notes that 
this final rule does not prohibit a creditor or servicer from providing 
additional information the creditor or servicer deems important at the 
same time as the creditor or servicer provides the Post-Consummation 
Escrow Cancellation Disclosure. Under the final rule, the creditor or 
servicer may provide additional information, provided that they follow 
the requirements set forth in this Sec.  1026.20(e) with respect to the 
Post-Consummation Escrow Cancellation Disclosure. For example, the 
creditor or servicer may provide additional information on separate 
pages and include those pages in the same transmittal that contains the 
Post-Consummation Escrow Cancellation Disclosure. Accordingly, the 
Bureau is generally adopting the provision that the Board proposed, 
with modifications as described below. The Bureau believes that the 
modifications to the optional information requirements enhance consumer 
understanding, and the modifications to the form requirements 
complement the form of the Post-Consummation Escrow Cancellation 
Disclosure finalized by the Bureau in Sec.  1026.19(e)(4).
    Pursuant to its authority under TILA section 105(a), Dodd-Frank Act 
section 1032(a), and for residential mortgage loans, Dodd-Frank Act 
section 1405(b), the Bureau adopts Sec.  1026.20(e)(3). Final Sec.  
1026.20(e)(3) provides that creditor or servicer may, at its option, 
include its name or logo, the consumer's name, phone number, mailing 
address and property address, or the issue date of the notice, loan 
number or the consumer's account number on the notice required by this 
Sec.  1026.20(e). Section 1026.20(e)(3) also provides that, except for 
the name and logo of the creditor or servicer, the information may be 
placed between the heading required by Sec.  1026.20(e)(2) and the 
disclosures required by Sec.  1026.20(e)(2)(i) and (ii). The name and 
logo may be placed above the heading required by Sec.  1026.20(e)(2). 
The Bureau is finalizing comment 20(d)(3)-1 proposed by the Board 
substantially as proposed, renumbered as comment 20(e)(3)-1. Comment 
20(e)(3)-1 explains that Sec.  1026.20(e)(3) lists information that the 
creditor or servicer may, at its option, include on the notice required 
by this Sec.  1026.20(e), and provides guidance on the placement of the 
optional information.
20(e)(4) Form of Disclosure
    The Board proposed form requirements for the Post-Consummation 
Escrow Cancellation Disclosure in proposed Sec.  226.20(d)(1). The 
Board generally proposed to require the creditor or servicer to provide 
the disclosures in the form of a table and in the format of a set of 
questions and answers. The Board also proposed commentary to explain 
the proposed form requirements and proposed a model form of appendix H 
to Regulation Z that creditors and servicers could use to comply with 
the proposed requirements. Commenters did not provide comments to the 
Board on this aspect of the Board's proposal.
    Accordingly, the Bureau is adopting form requirements for the Post-
Consummation Escrow Cancellation Disclosure in Sec.  1026.20(e)(4), as 
well as a model form that creditors and servicers could use to comply 
with the form requirements. The model form is adopted as form H-29 of 
appendix H to Regulation Z, as described below in the section-by-
section analysis of appendix H to Regulation Z below. The Bureau is 
generally adopting the form requirements of the Board's proposal, but 
the Bureau is modifying them to harmonize and synchronize the 
appearance of the Post-Consummation Escrow Cancellation Disclosure with 
the Pre-Consummation Escrow Establishment Disclosure and Pre-
Consummation Escrow Waiver Disclosure that the Bureau is adopting in 
this final rule. The Bureau believes that a harmonized and synchronized 
set of disclosures benefit consumers by enhancing consumer 
understanding and facilitate compliance by industry.
    The Bureau is adopting Sec.  1026.20(e)(4) pursuant to its 
authority under TILA section 105(a), Dodd-Frank Act section 1032(a), 
and for residential mortgage loans, Dodd-Frank Act section 1405(b). 
Section 1026.20(e)(4) provides that the disclosures required by Sec.  
1026.20(e)(2) shall be provided in a minimum 10-point font, grouped 
together on the front side of a one-page document, separate from all 
other materials, with the headings, content, order, and format 
substantially similar to model form H-29 of appendix H. It also 
provides that the disclosure of the heading required by Sec.  
1026.20(e)(2) shall be more conspicuous than, and shall precede, the 
other disclosures required by Sec.  1026.20(e)(2).
    The Bureau is finalizing comment 20(d)(1)(i)-1 as proposed by the 
Board, renumbered as comment 20(e)(4)-1. The Bureau is also finalizing 
comment 20(d)(1)(i)-2 as proposed by the Board, renumbered as 20(e)(4)-
2. Comment 20(e)(4)-1 explains that the disclosures required by Sec.  
1026.20(e)(2) must be grouped together on the front side of a separate 
one-page document that contains no other material. Comment 20(e)(4)-2 
explains that the notice containing the disclosures required by Sec.  
1026.20(e)(2) must be in writing in a form that the consumer may keep. 
The comment also refers to Sec.  1026.17(a) and related commentary for 
additional guidance on the form requirements applicable to the 
disclosures required by Sec.  1026.20(e)(2).
20(e)(5) Timing
    Section 129D(j)(1)(B) of TILA, as added by Dodd-Frank Act section 
1462, requires a creditor or servicer to provide the Post-Consummation 
Escrow Cancellation Disclosure in a timely manner. In the Board's 2011 
Escrows Proposal, under proposed Sec.  226.20(d)(4), a creditor or a 
servicer would have had to ensure that the Post-Consummation Escrow 
Cancellation Disclosure would be received by the consumer no later than 
three business days before closure of the consumer's escrow account. 
The Board believed that a consumer should be provided sufficient time 
to consider the attendant responsibilities and risks of not having an 
escrow account. The Board additionally believed that three

[[Page 79900]]

business days, which would mean all calendar days except for Sundays 
and specified public holidays, rather than the general definition of 
business day in Sec.  1026.2(a)(6), would provide a consumer with such 
time to reflect on the consequences and risks associated with the 
closure of an escrow account.
    The Board also proposed Sec.  226.20(d)(5), which would have 
applied the ``mailbox rule'' to the timing requirement of proposed 
Sec.  226.20(d)(4). Proposed Sec.  226.20(d)(5) would have provided 
that if the disclosures required by Sec.  226.20(d)(2) are mailed to 
the consumer or delivered by means other than in person, the consumer 
is considered to have received the disclosures three business days 
after they are mailed or delivered. The Board also proposed commentary 
to Sec.  226.20(d)(4) and (5) to further clarify the proposed 
requirements and illustrate the requirements with examples.
Comments
    Some industry commenters opposed the timing requirement set forth 
in proposed Sec.  226.20(d)(4) because they believed that the creditor 
or servicer should not have to wait to close the consumer's escrow 
account after providing the consumer with the cancellation notice. 
Several industry trade associations representing banks and financial 
companies asserted that the Dodd-Frank Act does not establish a waiting 
period requirement for termination of escrow accounts. They also 
asserted that imposing a waiting period for an escrow account 
termination would be inconsistent with the Homeowners Protection Act of 
1998 (12 U.S.C. 4901 et seq.) (HPA), because the HPA established timing 
requirements that a servicer must follow when the servicer cancels 
private mortgage insurance. It appears that the commenters believed 
that the timing requirements the Board set forth in proposed Sec.  
226.20(d)(4) would have been inconsistent with the requirements of the 
HPA if the consumer's escrow account was being cancelled in connection 
with the cancellation of private mortgage insurance pursuant to the 
HPA.
    The commenters also asserted that a waiting period for an escrow 
termination also contradicts proposed Sec.  226.45(b)(3)(i)(A) in the 
Board's 2011 Escrows Proposal, because the provision would have 
permitted cancellation of an escrow account when a loan is paid in 
full. A large bank commenter asserted rather than requiring creditors 
to send the Post-Consummation Escrow Cancellation Disclosure prior to 
the closure of the consumer's escrow account, the Bureau should permit 
creditors to send the notice after the consumer's escrow account has 
been closed because the consumer retains the ability to reinstate the 
escrow account after its closure.
    A national consumer advocacy group commenter asserted that the 
three-business-day waiting period would not give consumers sufficient 
notice to dispute escrow account cancellations or to make arrangements 
to begin saving for expenses that have been escrowed. This commenter 
also stated that the proposal would be at odds with RESPA's qualified 
written request requirements, which provides that servicers have 30 
days to respond to a consumer's qualified written request to correct a 
servicing error, because the timing requirement set forth in proposed 
Sec.  226.20(d)(4) would have permitted a servicer to cancel a 
consumer's escrow account before the servicer is required to correct 
any servicer mistakes. The commenter asserted that the Board should 
impose a 45-day minimum notice requirement and an automatic extension 
requirement while the servicer investigates a consumer's qualified 
written requests.
Final Rule
    The Bureau has considered the comments and is finalizing the 
proposal's timing requirements set forth in proposed Sec.  226.20(d)(4) 
and (5), renumbered as Sec.  1026.20(e)(5), with modifications. The 
Bureau is adopting Sec.  1026.20(e)(5) pursuant to its authority under 
TILA section 105(a), Dodd-Frank Act section 1032(a), and for 
residential mortgage loans, Dodd-Frank Act section 1405(b). Section 
1026.20(e)(5)(i) provides that if the creditor or servicer cancels the 
escrow account at the consumer's request, the creditor or servicer 
shall ensure that the consumer receives the disclosures required by 
Sec.  1026.20(e)(2) no later than three business days before closure of 
the consumer's escrow account. The Bureau believes that a consumer 
should be provided sufficient time to consider the attendant 
responsibilities and risks of not having an escrow account prior to the 
closure of the account. Three business days, which would include all 
calendar days except for Sundays and specified public holidays, would 
provide a consumer with such time if the creditor or servicer cancels 
the escrow account at the consumer's request. Further, finalizing the 
proposed timing requirements in the Board's proposed Sec.  226.20(d)(4) 
and (5) is well within the Bureau's authority to implement TILA section 
129D(j)(1)(B) which requires the creditor or servicer to provide the 
Post-Consummation Escrow Cancellation Disclosure in a ``timely'' 
manner.
    Section 1026.20(e)(5)(i) does not cause an irreconcilable conflict 
with the timing requirements of the HPA. If the creditor must cancel 
the consumer's escrow account by a date certain pursuant to the 
requirements established by the HPA, the Bureau believes that the 
comments illustrate the actions the creditor must take with respect to 
ensuring that the account is cancelled by that date. With respect to 
the concern about the imposition of a waiting period for the 
cancellation of an escrow account when a loan is paid in full, comment 
20(e)(1)-3, discussed above, clarifies that creditors and servicers are 
not required to provide the consumer with the Post-Consummation Escrow 
Cancellation Disclosure when the mortgage loan for which an escrow 
account was established is terminated by, for example, repayment of the 
loan.
    Section 1026.20(e)(5)(ii) provides that if the creditor or servicer 
cancels the escrow account and the cancellation is not at the 
consumer's request, the creditor or servicer shall ensure that the 
consumer receives the disclosures required by Sec.  1026.20(e)(2) no 
later than 30 business days before the closure of the consumer's escrow 
account. Section 1026.20(e)(5)(iii) provides that if the disclosures 
required by Sec.  1026.20(e)(2) are not provided to the consumer in 
person, the consumer is considered to have received the disclosures 
three business days after they are delivered or placed in the mail.
    As noted, a consumer advocacy group stated that three business 
days' notice of cancellation is not sufficient time for consumers to 
contest the cancellation, where the consumer did not initiate the 
cancellation. The Bureau believes that providing insufficient notice of 
cancellation could result in consumer harm, especially when the 
cancellation was based on the creditor or the servicer's error. 
Accordingly, the Bureau is modifying the Board's proposed timing 
requirements where the escrow account is being cancelled by the 
creditor or servicer, but not at the consumer's request.
    To address these concerns, Sec.  1026.20(e)(5)(ii) provides that if 
the creditor or servicer cancels the escrow account and the 
cancellation is not at the consumer's request, the creditor or servicer 
shall ensure that the consumer receives the disclosures required by 
Sec.  1026.20(e)(2) no later than 30 business days before the closure 
of the consumer's escrow account. The Bureau acknowledges that the 2013 
RESPA

[[Page 79901]]

Servicing Final Rule generally provides a servicer with 30 days 
(excluding legal public holidays, Saturdays, and, Sundays) to respond 
after it receives the borrower's notice of error.\251\ But the Bureau 
believes that this must be counterbalanced by the concern about 
compliance burden with incorporating the timing requirements set forth 
in that rule in Sec.  1026.20(e)(4) because those requirements would 
not be analogous to Regulation Z's definitions of business day.
---------------------------------------------------------------------------

    \251\ See 78 FR 10696, 10878 (Feb. 14, 2013).
---------------------------------------------------------------------------

    The Bureau is also finalizing proposed comments 20(d)(4)-1 and -2 
substantially as proposed, renumbered as comment 20(e)(5)(i)-1. Comment 
20(e)(5)(i)-1 explains that Sec.  1026.20(e)(5)(i) provides that if the 
creditor or servicer cancels the escrow account at the consumer's 
request, the creditor or servicer shall ensure that the consumer 
receives the disclosures required by Sec.  1026.20(e)(2) no later than 
three business days before closure of the consumer's escrow account. 
The comment also explains that for purposes of Sec.  1026.20(e)(5), the 
term ``business day'' means all calendar days except Sundays and legal 
public holidays referred to in Sec.  1026.2(a)(6). The comment 
additionally references comment 2(a)(6)-2, and illustrates the 
requirement with an example.
    The Bureau is adopting the Board's proposed comment 20(d)(5)-1 
substantially as proposed, renumbered as comment 20(e)(5)(iii)-1. 
Comment 20(e)(5)(iii)-1 explains that Sec.  1026.20(e)(5)(iii) provides 
that if the disclosures required under Sec.  1026.20(e)(2) are not 
provided to the consumer in person, the consumer is considered to have 
received the disclosures three business days after they are delivered 
or placed in the mail. Accordingly, if the creditor or servicer 
provides the disclosures required by Sec.  1026.20(e)(2) by mail, the 
consumer is considered to have received them three business days after 
they are placed in the mail for purposes of determining when the 
waiting periods required by Sec.  1026.20(e)(5)(i) and (ii) begins. The 
comment also explained that creditors and servicers that use electronic 
mail or a courier to provide disclosures may also follow this approach. 
The comment further explains that if, however, the creditor or servicer 
delivers the disclosures required by Sec.  1026.20(e)(2) to the 
consumer in person, the escrow account may be closed any time on the 
third or 30th business day following the date of delivery, as 
applicable. Finally, the comment explains that whatever method is used 
to provide disclosures, creditors and servicers may rely on 
documentation of receipt in determining when the three-business-day 
period required by Sec.  1026.20(e)(5)(i) or the 30-business-day period 
required by Sec.  1026.20(e)(5)(ii) before the closure of the escrow 
account begins.

Section 1026.22 Determination of Annual Percentage Rate

22(a) Accuracy of Annual Percentage Rate
    The Bureau proposed conforming amendments to Sec.  1026.22 to 
reflect the fact that proposed Sec.  1026.38(o)(2) would have set forth 
finance charge tolerances for mortgage transactions subject to Sec.  
1026.19(f), as discussed below. These tolerances are not different from 
the tolerances that currently apply to closed-end mortgage 
transactions. The tolerances set forth in current Sec.  1026.18(d)(1) 
would have continued to apply to closed-end transactions that would not 
have been subject to proposed Sec.  1026.19(f). Accordingly, the Bureau 
proposed to revise Sec.  1026.22(a)(4) and (5) and comment 22(a)(4)-1 
to add references to Sec.  1026.38(o)(2).
    The Bureau did not receive comments on this aspect of the proposal. 
Accordingly, for the reasons stated in the proposal, the Bureau is 
finalizing the amendments to Sec.  1026.22 as proposed.

Section 1026.24 Advertising

24(d) Advertisement of Terms That Require Additional Disclosures
24(d)(2) Additional Terms
    Comment 24(d)(2)-2 currently provides guidance on how to state the 
terms of repayment in an advertisement, as required in Sec.  
1026.24(d)(2)(ii). The Bureau proposed to exercise its authority under 
TILA section 105(a) to revise the comment to conform with the 
additional forms of repayment term disclosures that would have applied 
to various types of mortgage transactions under the proposal. Proposed 
comment 24(d)(2)-2 would have clarified that, in advertisements for 
closed-end credit secured by real property or a dwelling, the repayment 
terms disclosed in the interest rate and payment summary table or the 
projected payments table under Sec. Sec.  1026.18(s) or 1026.37(c) and 
1026.38(c), as applicable, can be provided in an advertisement pursuant 
to Sec.  1026.24(d)(2)(ii). The Bureau stated in the proposal that it 
believed that the format of disclosures applicable to a particular 
transaction is also the most appropriate format for advertising 
purposes. Proposed comment 24(d)(2)-2 also would have made clear that 
the payment schedule described in Sec.  1026.18(g) is not the only 
permissible disclosure under Sec.  1026.24(d)(2)(ii).
    The Bureau did not receive comments specifically related to the 
proposed revision to comment 24(d)(2)-2. However, several commenters 
stated that advertising rules for mortgages are generally too complex 
and discourage providing any useful information on the term of the loan 
or pricing. Commenters also stated that the annual percentage rate 
should not be required on mortgage advertisements because consumers do 
not understand the annual percentage rate. The Bureau did not propose 
such a broad change to the advertising requirements of Sec.  1026.24 in 
the proposal, but rather only proposed the clarifications to comment 
24(d)(2) described above to reflect the interest rate and payment 
summary table under Sec.  1026.18(s) and the new provisions applicable 
to the integrated disclosures, the projected payments table under 
Sec. Sec.  1026.37(c) and 1026.38(c). While the Bureau recognizes some 
of the issues related to consumer understanding of the annual 
percentage rate disclosure are described in the proposal and the 
section-by-section analysis of Sec.  1026.37(l), the Bureau did not 
propose to eliminate the requirement that it be included in mortgage 
advertisements and, thus, it will continue to be required by Sec.  
1026.24 under this final rule. Accordingly, the Bureau adopts the 
revisions to comment 24(d)(2)-2 as proposed.

Section 1026.25 Record Retention

    In the TILA-RESPA Proposal, the Bureau proposed to amend Sec.  
1026.25 to apply the recordkeeping requirements under Regulation X to 
the proposed integrated disclosures and to require creditors to keep 
such records in an electronic, machine readable format.
25(a) General Rule
    The Bureau proposed to amend Sec.  1026.25(a) to exclude 
transactions subject to the disclosure requirements of Sec.  1026.19(e) 
and (f) from the general recordkeeping requirement. Instead, the Bureau 
proposed to establish the recordkeeping requirements for such 
transactions under a new Sec.  1026.25(c)(1).
    The Bureau did not receive comments regarding the amendment to 
Sec.  1026.25(a). Accordingly, the Bureau is finalizing Sec.  
1026.25(a) as proposed.

[[Page 79902]]

25(c) Records Related to Certain Requirements for Mortgage Loans
25(c)(1) Records Related to Requirements for Loans Secured by Real 
Property
25(c)(1)(i) General Rule
    Neither TILA nor RESPA contain record retention requirements. 
Section 1026.25 of Regulation Z requires creditors to retain evidence 
of compliance with TILA for two years after the date disclosures are 
required to be made or action is required to be taken. Section 
1024.7(f) of Regulation X requires lenders to retain documentation of 
any reason for providing a revised RESPA GFE for no less than three 
years after settlement. Furthermore, Sec.  1024.10(e) of Regulation X 
requires lenders to retain each completed RESPA settlement statement 
and related documents for five years after settlement, unless the 
lender disposes of its interest in the mortgage and does not service 
the mortgage.
    The Bureau proposed to reconcile these provisions by generally 
requiring a creditor to retain evidence of compliance with the 
requirements of Sec.  1026.19(e) and (f) for three years. The Bureau 
stated in the proposal that it recognized that extending the record 
retention requirement from two years, as currently provided in 
Regulation Z, to three years may result in increased costs. However, 
the Bureau was not aware of any issues related to complying with the 
three-year period already required by Regulation X. The Bureau stated 
that creditors may be able to use existing recordkeeping systems to 
retain the integrated disclosures at no additional cost. Additionally, 
the Bureau noted that several sections of RESPA are subject to a three 
year statute of limitations.\252\ The Bureau recognized that adopting a 
document retention period of less than three years could affect legal 
actions brought under RESPA. Thus, the Bureau stated its belief that it 
would be appropriate to require creditors to maintain records related 
to compliance for three years, as opposed to the two-year requirement 
of Regulation Z.
---------------------------------------------------------------------------

    \252\ ``[A]ctions [under sections 6, 8, or 9] brought by the 
Bureau, the Secretary, the Attorney General of any State, or the 
insurance commissioner of any State may be brought within 3 years 
from the date of the occurrence of the violation.'' RESPA section 
16; 12 U.S.C. 2614.
---------------------------------------------------------------------------

    Pursuant to its authority under section 105(a) of TILA and section 
19(a) of RESPA, the Bureau proposed Sec.  1026.25(c)(1)(i), which 
stated that, except as provided under Sec.  1026.25(c)(1)(ii), a 
creditor shall retain evidence of compliance with the requirements of 
Sec.  1026.19(e) and (f) for three years after the later of the date of 
consummation, the date disclosures are required to be made, or the date 
the action is required to be taken. The Bureau stated its belief that 
this proposed modification would ensure that records associated with 
the integrated disclosures were kept long enough to facilitate 
compliance with both TILA and RESPA, which is necessary to both prevent 
circumvention of and facilitate compliance with TILA and RESPA. The 
Bureau solicited comment on whether the three-year period was 
appropriate, whether the retention requirement should be extended to 
five years to match the recordkeeping requirement in proposed Sec.  
1026.25(c)(1)(ii), and whether a shorter time period would conflict 
with the statute of limitations under section 16 of RESPA.
    Several industry commenters, including a credit union and an 
industry trade association, noted that creditors were likely to 
maintain all records for the longer, five-year retention period for 
closing disclosures mandated by proposed Sec.  1025(c)(1)(ii). As such, 
the commenters reasoned that creditors would not benefit from the 
shorter retention period in proposed Sec.  1025(c)(1)(i), and suggested 
that the Bureau extend that requirement to match the requirement in 
proposed Sec.  1026.25(c)(1)(ii). The Bureau appreciates the 
commenters' reasoning. However, the Bureau is finalizing Sec.  
1025(c)(1)(i) as proposed in keeping with its intent to mirror the 
existing retention periods for amendments to GFEs, as set forth in 
Sec.  1024.7(f). In addition, although some creditors may maintain all 
records for the longer period, some may comply strictly with the three-
year period, and thus, there may be less costs imposed on industry from 
the three-year period. In addition, the Bureau is not aware of any 
issues raised with regard to the existing three-year retention period 
under Regulation X.
    Proposed comment 25(c)(1)-1 would have applied guidance currently 
applicable under Sec.  1026.25(a) to proposed Sec.  1026.25(c). The 
proposed comment would have clarified that the creditor must retain 
evidence that it performed the required actions as well as made the 
required disclosures. This included, for example, evidence that the 
creditor properly differentiated between affiliated and independent 
third party settlement service providers for determining good faith 
under Sec.  1026.19(e)(3); evidence that the creditor properly 
documented the reason for revisions under Sec.  1026.19(e)(3)(iv); or 
evidence that the creditor properly calculated average costs under 
Sec.  1026.19(f)(3)(ii). Proposed comment 25(c)(1)-2 would have 
provided a cross-reference to Sec.  1026.19(e)(1)(ii), which imposed 
responsibilities on mortgage brokers in some situations and may have 
implicated Sec.  1026.25(c).
    The Bureau did not receive comments regarding the proposed changes 
to proposed comments 25(c)(1)-1 and 25(c)(1)-2. For the reasons 
discussed above and in the proposed rule, the Bureau is finalizing 
Sec.  1026.25(c)(1)(i) and comments 25(c)(1)-1 and 25(c)(1)-2 as 
proposed, pursuant to its authority under section 105(a) of TILA and 
section 19(a) of RESPA.
25(c)(1)(ii) Closing Disclosures
    As noted above, while Sec.  1026.25 of Regulation Z generally 
requires creditors to retain evidence of compliance with TILA for two 
years after the date disclosures are required to be made or action is 
required to be taken, Sec.  1024.10(e) of Regulation X requires lenders 
to retain each completed RESPA settlement statement and related 
documents for five years after settlement, unless the lender disposes 
of its interest in the mortgage and does not service the mortgage. If 
the lender disposes of its interest and does not service the mortgage, 
Sec.  1024.10(e) requires the lender to provide the lender's copy of 
the RESPA settlement statement to the owner or servicer of the mortgage 
as part of the transfer of the loan file. The owner or servicer to whom 
the files are transferred must retain the RESPA settlement statement 
for the remainder of the five-year period.
    Because the Closing Disclosure contains the settlement information 
that is currently provided on the RESPA settlement statement, the 
Bureau proposed to adopt the five-year requirement with respect to the 
Closing Disclosure. The Bureau stated in the proposal that this 
information serves an important purpose as both the record of all fees 
associated with the transaction and as part of the official 
disbursement record. As such, this information may be needed for more 
than two years after the transaction. For example, State and local laws 
related to transactions involving real property may depend on the 
information being available for five years. Additionally, the Bureau 
recognized that the five-year recordkeeping requirement under 
Regulation X has been in effect since 1992.\253\ The Bureau stated in 
the

[[Page 79903]]

proposal that it was unaware of any problems caused by the five-year 
requirement and did not believe the time period should be shortened 
without evidence that the rule is not operating as intended, is 
unnecessary, or otherwise harms consumers. Thus, the Bureau stated its 
belief that requiring creditors to retain copies of the Closing 
Disclosure for five years was appropriate.
---------------------------------------------------------------------------

    \253\ 57 FR 49600, 49607 (Nov. 2, 1992).
---------------------------------------------------------------------------

    Pursuant to its authority under section 105(a) of TILA and section 
19(a) of RESPA, the Bureau proposed Sec.  1026.25(c)(1)(ii). Proposed 
Sec.  1026.25(c)(1)(ii)(A) would have stated that the creditor shall 
retain each completed disclosure required under Sec.  1026.19(f)(1)(i) 
and (f)(4)(i), and all documents related to such disclosures, for five 
years after settlement. The Bureau stated that it believed that this 
proposed modification would ensure that records associated with the 
integrated disclosures were kept long enough to facilitate compliance 
with both TILA and RESPA, which was necessary both to prevent 
circumvention of and facilitate compliance with TILA. The Bureau also 
stated the proposed recordkeeping requirement would enable accurate 
supervision, which would result in the more effective advance 
disclosure of settlement costs, consistent with section 19(a) of RESPA.
    Proposed Sec.  1026.25(c)(1)(ii)(B) would have provided that, if a 
creditor sells, transfers, or otherwise disposes of its interest in a 
mortgage and does not service the mortgage, the creditor must provide a 
copy of the disclosures required under Sec.  1026.19(f)(1)(i) or 
(f)(4)(i) to the owner or servicer of the mortgage as a part of the 
transfer of the loan file, and such owner or servicer must retain such 
disclosures for the remainder of the five-year period. Proposed Sec.  
1026.25(c)(1)(ii)(C) would have provided that the Bureau has the right 
to require provision of copies of records related to the disclosures 
required under Sec.  1026.19(f)(1)(i) or (f)(4)(i).
    The Bureau recognized that the proposal was different from current 
requirements under Regulation X, which do not require a creditor to 
maintain these documents if the creditor disposes of its interest in 
the mortgage loan and does not service the mortgage loan. However, the 
Bureau believed that the current requirement provided little practical 
benefit to creditors, because other provisions of Regulations Z and X 
require creditors to maintain records of compliance for several years, 
even if the creditor transfers, sells, or otherwise disposes of its 
interest in the mortgage loan. The Bureau solicited feedback regarding 
whether it was appropriate for creditors that transfer, sell, or 
otherwise dispose of their interest in the mortgage loan, and do not 
service the mortgage loan, to keep these records for the five-year 
period. The Bureau also requested feedback on the additional costs that 
would result from such a requirement.
    The Bureau did not receive any comments with respect to the 
appropriateness of the five-year retention period proposed by Sec.  
1026.25(c)(1)(ii)(A). It did, however, receive requests for 
clarification with respect to whether a creditor that sells, transfers, 
or otherwise disposes of its interest in a mortgage, as contemplated by 
Sec.  1026.25(c)(1)(ii)(B), must continue to maintain a copy of the 
Closing Disclosure in its own records after disposing of the loan. To 
address this concern, the Bureau is revising Sec.  1026.25(c)(1)(ii)(A) 
to clarify that, notwithstanding the provisions of Sec.  
1026.25(c)(1)(ii)(B), a creditor is required to retain a copy of the 
disclosures provided under Sec.  1026.19(f)(1)(i) or (f)(4)(i) for a 
five-year period, even after it sells, transfers, or otherwise disposes 
of its interest in the loan. For the reasons set forth above and in the 
proposal, the Bureau is otherwise finalizing Sec.  1026.25(c)(1)(ii) as 
proposed.
25(c)(1)(iii) Electronic Records
    In the TILA-RESPA Proposal, the Bureau proposed to require 
retention of records of compliance in an electronic, machine readable 
format. The proposal stated that ``machine readable'' meant, for 
purposes of the proposal, a format where the individual data elements 
comprising the record can be transmitted, analyzed, and processed by a 
computer program, such as a spreadsheet or database program. Data 
formats for image reproductions (e.g., PDF) or document text, such as 
those used by word processing programs, were not considered machine 
readable for purposes of the proposal.
    Currently, neither TILA nor RESPA address electronic recordkeeping. 
Regulation Z permits, but does not require, electronic recordkeeping. 
Current comment 25(a)-2 provides that records can be maintained by any 
method that reproduces disclosures accurately, including computer 
programs. Regulation X also permits, but does not require, electronic 
records. See Sec.  1024.23 and HUD RESPA FAQs p.3, 4 (``GFE--
General'').
Issues Related to Adopting a Standard, Machine Readable, Electronic 
Data Format
    The Bureau stated in the proposal that prior to proposing the 
electronic, machine readable requirement, it sought information 
regarding the costs of keeping records in an electronic, machine 
readable format. Based on these discussions, the Bureau recognized that 
requiring records in an electronic, machine readable format would 
impose new costs on industry, which would be limited to the up-front 
costs of upgrading existing computer systems and additional, ongoing 
data storage costs. As stated in the proposal, however, the Bureau also 
believed that keeping records in machine readable format could provide 
industry and consumers with numerous, significant benefits. The Bureau 
stated its belief that a prescribed electronic format could potentially 
reduce loan origination costs due to efficiency gains associated with a 
standardized data format. Further, a single data format could lower 
long-term costs by enabling creditors to migrate from older data 
formats to a single, standard data format. The Bureau stated it 
believed that a standard format could also foster innovation by 
allowing technology companies to create new programs that promote 
efficiency instead of tailoring programs to each firm's proprietary 
data format. In addition, the Bureau stated that the requirement may 
reduce industry's reliance on paper files, while allowing regulators to 
monitor some aspects of compliance remotely.
    The Bureau believed that these benefits outweighed the costs 
associated with adopting and maintaining such a format. Thus, pursuant 
to its authority under section 105(a) of TILA, the Bureau proposed 
Sec.  1026.25(c)(1)(iii), which would have provided that a creditor 
must retain evidence of compliance in an electronic, machine readable 
format. The Bureau believed that this proposed requirement would ensure 
that records associated with the integrated disclosures were readily 
available for examination, which could prevent circumvention of and 
facilitate compliance with TILA. The Bureau stated that the proposed 
regulation could also facilitate compliance with TILA by easing the 
burden of examinations and ensuring that all entities subject to TILA 
kept records in a standard format.
    Based on the Bureau's discussions with industry regarding machine 
readable data formats, the Bureau stated in the proposal that it 
believed that XML may be the most appropriate

[[Page 79904]]

format for electronic recordkeeping. However, the Bureau did not 
specifically propose to mandate use of the XML format and instead 
solicited feedback on the costs and benefits of specific data formats. 
In addition, the Bureau proposed comment 25(c)(1)(iii)-1, which would 
have clarified that the requirements of Sec.  1026.25(c)(1)(iii) were 
in addition to any other formats that may be required by administrative 
agencies responsible for enforcing the regulation. The Bureau solicited 
comment on this approach, including the costs associated with such a 
requirement. The Bureau also solicited comments on whether a small 
business exemption to the requirement was appropriate, and sought 
feedback on the proper contours of such an exemption. Finally, the 
Bureau solicited feedback on small business' current technology costs, 
and how such costs might be affected by an electronic recordkeeping 
requirement.
    The Bureau received voluminous comments in response to proposed 
Sec.  1026.25(c)(1)(iii) from various stakeholders, including 
creditors, industry trade associations, government entities, real 
estate attorneys, and title agents. The overwhelming majority of these 
comments expressed strong opposition to the proposed requirement. Most 
comments focused on the significant costs of implementation, especially 
for creditors who were not currently storing information in machine-
readable format or who had recently adopted a specific electronic 
format and would now have to invest time and money in implementing a 
new technology. Many of these commenters also stated that any costs 
would eventually be passed on to consumers, or cause creditors to 
tighten or discontinue their lending programs. Other comments casted 
doubt on the benefits of a mandated electronic format, especially given 
that the proposal did not require that creditors adopt a specific 
electronic format or field-naming protocol. Still others raised 
practical concerns, such as how the electronic format would capture the 
narrative fields included in the integrated disclosures, or how 
creditors would be expected to coordinate with third parties, such as 
settlement agents, who would not be subject to the new requirement but 
who may nonetheless create or maintain certain transaction documents.
    Other comments objected to the proposal on the grounds that it was 
ambiguous, stating that the proposal lacked clarity, including a 
sufficiently-specific definition of ``machine readable format'' and 
with respect to its application to entities other than creditors. Other 
commenters asserted that the rule went beyond the Bureau's statutory 
authority, or that the Bureau should not be mandating specific 
technological requirements for industry because it was a regulatory 
agency and lacked technical expertise in this area. The majority of 
commenters requested that the Bureau either withdraw Sec.  
1026.25(c)(1)(iii) altogether or delay it for a later rulemaking. Many 
small entity industry commenters requested that the Bureau adopt a 
small entity exemption, if the Bureau were to finalize the machine 
readable format requirement, and suggested different thresholds for 
such an exemption, stating that the costs of compliance would be 
especially burdensome for those entities.
    The Bureau considered these comments and has decided not to 
finalize proposed Sec.  1026.25(c)(1)(iii) and related comment 
25(c)(1)(iii)-1. The Bureau believes that adopting a single 
standardized data format would be critical to achieving many of the 
potential benefits discussed in the proposal, and that significantly 
more consultation with stakeholders would be beneficial before taking 
that step. In light of the potential implementation costs for 
creditors, settlement agents, and other affected parties, the Bureau 
believes that it is important to assure that that any data format 
requirements be undertaken with care.
    In addition, the Bureau recognizes that industry will need to make 
a number of data format decisions in the coming months as companies 
implement the final rule, and continues to believe that the adoption of 
a uniform electronic format throughout the mortgage industry could 
provide significant downstream benefits to industry and consumers 
alike. These benefits could include more efficient and cost-effective 
processing of mortgage loan data, improved consistency and data quality 
throughout the loan lifecycle, greater transparency for investors, and 
the potential for new technologies to reduce costs and streamline the 
mortgage process. For example, the GSEs, at the direction of the 
Federal Housing Finance Agency, are currently engaged in an effort to 
develop a standardized dataset for the Closing Disclosure, which they 
call the ``Uniform Closing Dataset (UCD),'' and which will utilize the 
data standards of the Mortgage Industry Standards Maintenance 
Organization (MISMO).\254\ The GSEs have already created a draft 
dataset based on the proposed Closing Disclosure and plan to issue a 
final dataset after they revise the draft dataset based on this final 
rule. When fully implemented, such an initiative as the UCD could 
produce a uniform dataset for the vast majority of the market.
---------------------------------------------------------------------------

    \254\ Fannie Mae, Uniform Closing Dataset Overview (June 30, 
2013), available at https://www.fanniemae.com/content/fact_sheet/ucd-overview.pdf; Freddie Mac, GSEs Developing Standardized Dataset 
to Support CFPB's Closing Disclosure Form (July 30, 2013), available 
at http://www.freddiemac.com/singlefamily/news/2013/0730_umpd_efforts.html.
---------------------------------------------------------------------------

    The Bureau will monitor the GSEs' development of the UCD and any 
other similar initiatives and will consider whether it can take 
additional steps to encourage the voluntary adoption of uniform 
standards or whether additional rulemaking activity may be appropriate 
in this area. In addition, in connection with its planned efforts to 
provide the public with implementation assistance with respect to this 
final rule, the Bureau expects to provide assistance to the GSEs in 
connection with their finalization of the draft UCD.
Section 1026.28 Effect on State Laws
    TILA preempts State laws to the extent of their inconsistency with 
the statute and permits States, creditors, and other interested parties 
to request a determination by the Bureau regarding such inconsistency. 
Specifically, section 111(a)(1) states that the provisions of chapters 
1 (General Provisions), 2 (Credit Transactions), and 3 (Credit 
Advertising and Limits on Credit Card Fees) of TILA do not annul, 
alter, or affect the laws of any State relating to the disclosure of 
information in connection with credit transactions, except to the 
extent that those laws are inconsistent with the provisions of TILA and 
then only to the extent of the inconsistency. 15 U.S.C. 1610(a)(1). 
Upon its own motion or upon the request of any creditor, State, or 
other interested party that is submitted in accordance with procedures 
prescribed in regulations of the Bureau, the Bureau shall determine 
whether any such inconsistency exists. Id. If the Bureau determines 
that a State-required disclosure is inconsistent, creditors located in 
that State may not make disclosures using the inconsistent term or 
form, and shall incur no liability under the State law for failure to 
use such term or form, notwithstanding that such determination is 
subsequently amended, rescinded, or determined by judicial or other 
authority to be invalid for any reason. Id. Section 111(b) generally 
provides that TILA does not otherwise annul, alter, or effect in any 
manner the meaning, scope, or applicability of the laws of any State,

[[Page 79905]]

including, but not limited to, laws relating to the types, amounts, or 
rates of charges, or any elements of charges, permissible under such 
laws in connection with the extension or use of credit, and neither 
does TILA extend the applicability of those laws to any class of 
persons or transactions to which they would not otherwise apply. 15 
U.S.C. 1610(b).
    Regulation Z Sec.  1026.28 implements TILA section 111. Section 
1026.28(a) currently provides that State law requirements that are 
inconsistent with the requirements contained in chapters 1 through 3 of 
TILA and the implementing provisions of Regulation Z are preempted to 
the extent of the inconsistency.\255\ Under Sec.  1026.28(a), a State 
law is inconsistent with a TILA provision if it requires a creditor to 
make disclosures or take actions that contradict the requirements of 
TILA. A State law contradicts a requirement of TILA if it requires the 
use of the same term to represent a different amount or a different 
meaning than TILA, or if it requires the use of a term different from 
that required in TILA to describe the same item. A creditor, State, or 
other interested party may request the Bureau to determine whether a 
State law requirement is inconsistent, and if the Bureau makes such a 
determination a creditor may not make disclosures using the 
inconsistent term or form.\256\ The specific procedures for requesting 
a State law preemption determination are set forth in Sec.  1026.28(c) 
and appendix A to Regulation Z. Appendix A states, among other things, 
that the Bureau reserves the right to reverse a determination for any 
reason bearing on the coverage or effect of State or Federal law.
---------------------------------------------------------------------------

    \255\ There are different rules regarding preemption of State 
laws relating to the disclosure of credit information in any credit 
or charge card application or solicitation that is subject to the 
requirements of section 127 of TILA and the correction of billing 
errors, but those rules are outside the scope of this rulemaking. 
See Sec.  1026.28(a)(2), (d).
    \256\ TILA section 111(a)(2) and Sec.  1026.28(b) generally 
permit a creditor, State, or other interested party to request that 
the Bureau determine whether a State-required disclosure is 
substantially the same in meaning as a TILA disclosure, and if the 
Bureau makes such a determination, creditors in the State can 
provide the State-required disclosure in lieu of the TILA 
disclosure. Comment 28(b)-1 clarifies that under Sec.  1026.28, a 
State disclosure can be substituted for a Federal disclosure only 
after a determination of substantial similarity. State exemptions 
are addressed in more detail under Sec.  1026.29 and associated 
commentary.
---------------------------------------------------------------------------

    Current Regulation Z commentary provides further guidance on the 
TILA preemption rules. Comment 28(a)-2 includes examples of State laws 
that would be preempted (e.g., a State law requiring use of the term 
``finance charge'' but defining the term to include fees that TILA 
excludes, or to exclude fees that TILA includes). Comment 28(a)-3 
explains that State law requirements calling for disclosure of items 
not covered by TILA or that require more detailed disclosures generally 
do not contradict the TILA requirements, provides examples of State 
laws that would not be preempted, and gives guidance as to whether a 
State law requiring itemization of the amount financed would be 
preempted. Comment 28(a)-4 explains that a creditor, prior to a 
preemption determination, may either (1) give the State disclosures or 
(2) apply the preemption standards to a State law, conclude that it is 
inconsistent, and choose not to give the State-required disclosures 
(but that no immunity is given under Sec.  1026.28(a) for violations of 
State law if the creditor chooses not to make State disclosures and the 
Bureau later determines that the State law is not preempted). The 
comment also states that the Bureau will give sufficient time to 
creditors to revise their forms and procedures as necessary to conform 
with its preemption determinations. Comments 28(a)-8 through -15 
discuss prior determinations made by the Federal Reserve Board prior to 
July 21, 2011, and recognized by the Bureau unless and until the Bureau 
makes and publishes any contrary determinations, to preempt certain 
State laws. For example, comment 28(a)-15 states that in Wisconsin, 
disclosure of the annual percentage rate under the particular State law 
referenced in the comment is preempted, because while the statute 
refers to ``annual percentage rate,'' it requires disclosure of a 
different amount than under TILA.
    Section 18 of RESPA and current Regulation X Sec.  1024.13 provide 
that State laws that are inconsistent with RESPA or Regulation X are 
preempted to the extent of the inconsistency. 12 U.S.C. 2616; 12 CFR 
1024.13.\257\ RESPA and Regulation X do not annul, alter, affect, or 
exempt any person subject to their provisions from complying with the 
laws of any State with respect to settlement practices, except to the 
extent of the inconsistency. Id. Upon request by any person, the Bureau 
is authorized to determine whether such inconsistencies exist, and the 
Bureau may not determine that any State law is inconsistent with any 
provision of RESPA if the Bureau determines that such law or regulation 
gives greater protection to the consumer. 12 CFR 1024.13(b). In making 
this determination, the Bureau must consult with ``appropriate Federal 
agencies.'' Id.; see also 12 U.S.C. 2616. Section 1024.13(c) sets forth 
the process by which the Bureau makes a preemption determination. 
Unlike Regulation Z, Regulation X does not list any State laws 
preempted by RESPA, and the Bureau is not aware of any.
---------------------------------------------------------------------------

    \257\ The Bureau issued a final rule on July 10, 2013 that 
redesignated current Sec.  1024.13 as Sec.  1024.5(c), effective 
January 10, 2014, but the redesignation does not change the 
substance of the provision. 78 FR 44686, 44689 (July 24, 2013).
---------------------------------------------------------------------------

    The preemption provisions in TILA and RESPA and their implementing 
regulations thus contain similar language as far as scope of the 
preemption (i.e., in both cases State laws generally are preempted only 
``to the extent of the inconsistency''), but include different 
authority and procedures for determining whether State laws are 
preempted. For example, unlike Regulation X, Sec.  1026.28 provides a 
regulatory standard for determining ``inconsistency'' (i.e., 
disclosures or actions that contradict Federal law requirements) along 
with detailed commentary. RESPA, but not TILA, requires the preemption 
determination to be made by the Bureau in consultation with other 
appropriate Federal agencies. Moreover, while the Regulation Z 
provision addresses the relationship between Federal and State laws 
governing credit transactions, Sec.  1024.13 refers to laws regarding 
settlement practices.
    As stated previously, section 1032(f) of the Dodd-Frank Act 
requires the Bureau to propose rules and forms that combine the 
disclosures required under TILA and sections 4 and 5 of RESPA into a 
single, integrated disclosure for mortgage loan transactions covered by 
those laws. In addition, the Dodd-Frank Act amended sections 105(b) of 
TILA and 4(a) of RESPA, respectively, to require the integration of 
those disclosure requirements. However, the Dodd-Frank Act did not 
specify whether the TILA or the RESPA State law preemption provision 
applies to the provision of the integrated mortgage disclosures. In 
order to meet the Dodd-Frank Act's mandate, the proposed rule must 
reconcile the differences regarding these State law preemption regimes.
    The Bureau proposed to require that the State law preemption 
provisions of Regulation Z, Sec.  1026.28, apply to any State law 
preemption question arising with respect to the requirements of 
sections 4 and 5 of RESPA (other than the RESPA section 5(c) 
requirements regarding provision of a list of certified homeownership 
counselors), and Sec. Sec.  1026.19(e) and (f), 1026.37, and 1026.38. 
To effectuate this change, the

[[Page 79906]]

Bureau proposed two modifications to Sec.  1026.28 and its associated 
commentary to reconcile differences regarding the State law preemption 
regimes of Regulation X and Regulation Z to meet the Dodd-Frank Act's 
mandate to integrate the mortgage loan disclosure requirements under 
TILA and RESPA.\258\ First, the proposed rule would have modified Sec.  
1026.28(a) to provide that a determination of whether a State law is 
inconsistent with the requirements of sections 4 and 5 of RESPA (other 
than the RESPA section 5(c) requirements regarding provision of a list 
of certified homeownership counselors) and proposed Sec. Sec.  
1026.19(e) and (f), 1026.37, and 1026.38 would be made in accordance 
with Sec.  1026.28 and not Regulation X Sec.  1024.13. Second, the 
proposed rule would have added text to comment 28(a)-1 providing that, 
to the extent applicable to a transaction subject to Sec.  1026.19(e) 
and (f), any reference to ``creditor'' in Sec.  1026.28 included a 
creditor, a mortgage broker, or a closing agent, as applicable. This 
change coincided with the proposed alternative of Sec.  1026.19(f)(1) 
that would have permitted the settlement agent to deliver the closing 
disclosure in place of the creditor. The Bureau stated that if this 
alternative were not adopted, it would not adopt the proposed addition 
of the reference to the closing agent to comment 28(a)-1. As described 
above in the section-by-section analysis of Sec.  1026.19(f)(1), the 
Bureau is finalizing this alternative substantially as proposed, and as 
explained below, is adopting comment 28(a)-1 with a minor modification 
for clarity.
---------------------------------------------------------------------------

    \258\ See sections 1032(f), 1098, and 1100A of the Dodd Frank 
Act. 12 U.S.C. 5532, 2603(a), and 1604(b), respectively.
---------------------------------------------------------------------------

    Several industry trade association commenters stated that 
preemption determinations under Sec.  1026.28 should be made after 
consulting with other Federal agencies, as is provided under Regulation 
X in Sec.  1024.13. As stated above, the Bureau must reconcile the 
differences between the two State law preemption regimes of RESPA and 
TILA. The two regimes are inconsistent with respect to the requirement 
under RESPA that the Bureau ``consult with appropriate Federal 
agencies.'' 12 U.S.C. 2616. As the Bureau stated in the proposal, there 
are certain transactions subject to TILA, but not RESPA, for which the 
integrated mortgage disclosures must be delivered under the proposed 
rule. Pursuant to Sec.  1026.19(e) and (f), the proposed rule covers 
all closed-end consumer credit transactions secured by real property, 
other than reverse mortgages. Some of these transactions are not 
subject to RESPA (i.e., if they are not a federally related mortgage 
loan as defined in Regulation X Sec.  1024.2), but consumers in such 
transactions will receive integrated mortgage disclosures containing 
certain content mandated by RESPA. As such, in practice the statutory 
integrated disclosure requirements of TILA will apply to more 
transactions covered by Sec.  1026.19(e) and (f) than those subject to 
RESPA. This may create confusion as to which preemption provision 
controls were a State law preemption question to arise with respect to 
the RESPA-mandated content on the integrated mortgage disclosures.
    For these reasons, the Bureau has determined that the preemption 
regime under TILA section 111, as implemented by Regulation Z in Sec.  
1026.28, without a requirement that the Bureau consult with other 
Federal agencies, is the most appropriate for the disclosure 
requirements Congress mandated the Bureau to integrate under sections 
1032, 1098, and 1100A of the Dodd-Frank Act. Accordingly, the Bureau is 
adopting the modifications to Sec.  1026.28 and comment 28(a)-1 as 
proposed, with a change to the reference of ``closing agent'' to 
``settlement agent'' to conform to the usage in the integrated 
disclosure requirements for clarity. The Bureau adopts these 
modifications pursuant to the authority under TILA section 105(a) and 
RESPA section 19(a), as described in the proposal.
    Section 1024.5(c) will continue to apply to State law preemption 
questions arising with respect to all other aspects of RESPA and 
Regulation X, including the RESPA section 5(c) requirements regarding 
provision of a list of certified homeownership counselors.\259\
---------------------------------------------------------------------------

    \259\ The provisions related to state law preemption questions 
under Regulation X Sec.  1024.13 were moved to Sec.  1024.5(c) 
effective on January 10, 2014. See 78 FR 44686, 44689 (July 24, 
2013).
---------------------------------------------------------------------------

Section 1026.29 State Exemptions

    The Bureau proposed two substantive modifications to the commentary 
to Sec.  1026.29, in addition to relabeling some of the section 
numbering and lettering, to reconcile differences between TILA and 
RESPA provisions with respect to the Bureau's authority to grant State 
exemptions from disclosure provisions. TILA has several provisions that 
permit the Bureau to grant State exemptions from certain TILA 
disclosure provisions. Section 111(a)(2) of TILA allows the Bureau, 
upon its own motion or upon the request of any creditor, State, or 
other interested party that is submitted in accordance with procedures 
prescribed in regulations of the Bureau, to determine whether any 
disclosure required under any State law is substantially the same in 
meaning as a disclosure required under TILA. 15 U.S.C. 1610(a)(2). If 
the Bureau makes such a determination, TILA section 111(a)(2) provides 
that creditors located in that State may make such disclosure in 
compliance with such State law in lieu of the TILA disclosure, except 
that (1) the annual percentage rate and finance charge must be 
disclosed as required by section 122 of TILA, and (2) State-required 
disclosures may not be made in lieu of the high-cost mortgage 
disclosures under section 129 of TILA. Section 123 of TILA allows the 
Bureau by regulation to exempt any class of credit transactions within 
any State from the requirements of chapter 2 of TILA (Credit 
transactions) if the Bureau determines that the law of the State 
subjects the class of transactions to requirements substantially 
similar to those imposed under chapter 2 of TILA, and that there is 
adequate provision for enforcement.\260\ 15 U.S.C. 1633.
---------------------------------------------------------------------------

    \260\ Section 171(b) of TILA also addresses State exemptions and 
contains nearly identical language to section 123, but section 
171(b) applies with respect to TILA chapter 4 (credit billing), 
which is not affected by this rulemaking. 15 U.S.C. 1661j(b).
---------------------------------------------------------------------------

    Regulation Z Sec.  1026.29 and appendix B to Regulation Z implement 
the TILA State exemption provisions.\261\ Pursuant to Sec.  1026.29(a), 
a State may apply to the Bureau to exempt a class of transactions 
within the State from the requirements of chapter 2 (Credit 
transactions) or chapter 4 (Credit billing) of TILA and the 
corresponding provisions of Regulation Z. The Bureau shall grant an 
exemption if it determines that (1) the State law is substantially 
similar to the Federal law or, in the case of chapter 4 of TILA, 
affords the consumer greater protection than the Federal law, and (2) 
there is adequate provision for enforcement. Comment 29(a)-2 clarifies 
that State law is ``substantially similar'' for purposes of Sec.  
1026.29(a) if the State statutory or regulatory provisions and State 
interpretations of those provisions are generally the same as TILA and 
Regulation Z. Comment 29(a)-3 clarifies that, generally, there is 
adequate provision for enforcement if appropriate State officials are 
authorized to enforce the State law through procedures and sanctions 
comparable to those available

[[Page 79907]]

to Federal enforcement agencies. Comment 29(a)-4 states that the Bureau 
recognizes certain TILA exemptions granted by the Board to Maine, 
Connecticut, Massachusetts, Wyoming, and Oklahoma prior to July 21, 
2011, until and unless the Bureau makes and publishes any contrary 
determination. Comment 29(a)-4.i through -4.v currently provides, in 
relevant part, that credit transactions in these five States that are 
subject to the State consumer credit codes or truth in lending acts 
enumerated in such comment are exempt from the requirements of chapter 
2 of TILA, which sets forth, among other provisions, the disclosure 
requirements for closed-end mortgages. The specific procedures for 
requesting a State exemption are set forth in Sec.  1026.29(c) and 
appendix B to Regulation Z. Appendix B states, among other things, that 
the Bureau reserves the right to revoke an exemption if at any time it 
determines that the standards required for an exemption are not met.
---------------------------------------------------------------------------

    \261\ As noted earlier, Sec.  1026.28(b) generally permits a 
creditor, State, or other interested party to request that the 
Bureau determine whether a State-required disclosure is 
substantially the same in meaning as a TILA disclosure, and if the 
Bureau makes such a determination, creditors in the State can 
provide the State-required disclosure in lieu of the TILA 
disclosure. Comment 28(b)-1 clarifies that under Sec.  1026.28, a 
State disclosure can be substituted for a Federal disclosure only 
after a determination of substantial similarity.
---------------------------------------------------------------------------

    Unlike TILA, RESPA does not contain a State exemption provision for 
credit transactions subject to RESPA. Rather, as discussed above with 
respect to Sec.  1026.28, section 18 of RESPA \262\ and Regulation X 
Sec.  1024.13 provide that State laws that are inconsistent with RESPA 
or Regulation X are preempted to the extent of the inconsistency.
---------------------------------------------------------------------------

    \262\ 12 U.S.C. 2616.
---------------------------------------------------------------------------

    As stated above, sections 1032(f), 1098, and 1100A of the Dodd-
Frank Act require the Bureau to propose for public comment, and publish 
final rules and forms that combine the disclosures required under TILA 
and sections 4 and 5 of RESPA into a single, integrated disclosure for 
mortgage loan transactions covered by those laws. However, the Dodd-
Frank Act did not address a number of inconsistencies between TILA and 
RESPA that affect the provision of the integrated mortgage disclosures, 
including inconsistent provisions regarding the application of State 
law. In order to meet the Dodd-Frank Act's mandate, the final rule must 
reconcile the State exemption provisions. The Bureau proposed to 
reconcile these differences between Regulation X and Regulation Z to 
meet the Dodd-Frank Act's mandate to integrate the mortgage loan 
disclosure requirements under the two statutes.\263\
---------------------------------------------------------------------------

    \263\ See sections 1032(f), 1098, and 1100A of the Dodd Frank 
Act. 12 U.S.C. 5532, 2603(a), and 1604(b), respectively.
---------------------------------------------------------------------------

    First, proposed revised comment 29(a)-2 would have modified the 
guidance regarding the ``substantially similar'' standard set forth in 
Sec.  1026.29(a)(1) (i.e., one of the two preconditions to the granting 
of an exemption). Proposed revised comment 29(a)-2 would have clarified 
that, in order for transactions that would otherwise be subject to the 
integrated disclosures required by Sec.  1026.19(e) and (f) to be 
exempt from those disclosure requirements, the State statutory or 
regulatory provisions and State interpretations of those provisions 
must require disclosures that are generally the same as those 
prescribed by Sec.  1026.19(e) and (f), in the forms prescribed by 
Sec. Sec.  1026.37 and 1026.38. In effect, in order for an existing 
State exemption to be maintained, the State's law must require 
disclosures that are generally the same as the integrated disclosures, 
including the RESPA content.
    Second, proposed revised comment 29(a)-4 would have stated that, 
although RESPA and Regulation X do not provide procedures for State 
exemptions, for transactions subject to Sec.  1026.19(e) and (f), 
compliance with the requirements of Sec. Sec.  1026.19(e) and (f), 
1026.37, and 1026.38 satisfies the requirements of sections 4 and 5 of 
RESPA (other than the RESPA section 5(c) requirements regarding 
provision of a list of certified homeownership counselors). 
Furthermore, the proposed revised comment would have stated that if the 
transaction is subject to a previously-granted State exemption, then 
compliance with the requirements of any State laws and regulations 
incorporating the requirements of Sec. Sec.  1026.19(e) and (f), 
1026.37, and 1026.38 likewise satisfies the requirements of sections 4 
and 5 of RESPA (other than the RESPA section 5(c) requirements 
regarding provision of a list of certified homeownership counselors). 
Thus, in Maine, Connecticut, Massachusetts, Oklahoma, and Wyoming, 
creditors, mortgage brokers, and settlement agents, as applicable, 
would have, under the proposal, been able to satisfy sections 4 and 5 
of RESPA (other than the RESPA section 5(c) requirements regarding 
provision of a list of certified homeownership counselors) through 
compliance with State law so long as the ``substantially similar'' 
State statutory and regulatory provisions (i.e., the State consumer 
codes or truth in lending acts enumerated in comment 29(a)-4.1 through 
-4.v, as applicable) expressly mandated delivery of the integrated 
mortgage disclosures required by the Dodd-Frank Act and implemented by 
this final rule.
    The Bureau did not receive any comments on the proposed 
modifications to the commentary related to State exemptions. The Bureau 
understands these changes require some of the five States that were 
previously granted State exemptions under 12 CFR 226.29, the 
predecessor to Sec.  1026.29, to change their laws and/or regulations, 
which may be a lengthy process because, to the extent the 
``substantially similar'' State laws and regulations underlying the 
TILA State exemptions do not currently require the integrated 
disclosures mandated by the Dodd-Frank Act (specifically, the portions 
mandated by RESPA), there is a gap in these States' current statutory 
and regulatory regimes that must be filled in order to maintain the 
State exemptions. As such, the Bureau solicited comment on the amount 
of time that will be needed for these States to change their laws and/
or regulations. The Bureau did not receive any comment on the amount of 
time that will be needed for those States to change their laws and/or 
regulations. However, two GSE commenters stated that the Bureau should 
impose a reasonable implementation period for the final rule that will 
permit the amendment of State laws and/or regulations. The Bureau 
believes that the States identified in proposed comments 29(a)-2 and -4 
will be able to change their laws and/or regulations prior to the 
effective date of this final rule, which is discussed below in part VI. 
Accordingly, the Bureau is adopting the modifications to comments 
29(a)-2 and -4 as proposed, pursuant to its authority under TILA 
section 105(a) and RESPA section 19(a) to make rules consistent with 
the purposes of those statutes, as described in the proposal.

Section 1026.37 Content of Disclosures for Certain Mortgage 
Transactions (Loan Estimate)

    Proposed Sec.  1026.37 would have set forth the required content of 
the integrated Loan Estimate disclosure, required by Sec.  1026.19(e) 
to be provided to a consumer within three business days of the 
creditor's receipt of the consumer's application.
    As described in the proposal, the proposed Loan Estimate would have 
integrated the disclosures currently provided in the RESPA GFE and the 
early TILA disclosure. In addition, the Loan Estimate integrates 
several disclosures that would otherwise be provided separately under 
various Federal laws. The Bureau stated in the proposal that it 
believed the three-page Loan Estimate, as proposed, integrates at least 
seven pages of disclosures. Specifically, the proposed Loan Estimate 
incorporated: (i) Three pages of the RESPA GFE; (ii) two pages 
typically used for the early TILA disclosure; (iii) one page typically 
used for the appraisal

[[Page 79908]]

notification provided under ECOA section 701(e); and (iv) one page 
typically used for the servicing disclosure provided under RESPA 
section 6. In addition, the proposed Loan Estimate incorporated the 
disclosure of: (i) The total interest percentage under TILA section 
128(a)(19), which was added by section 1419 of the Dodd-Frank Act; (ii) 
the aggregate amount of loan charges and closing costs the consumer 
must pay at consummation under TILA section 128(a)(17), which was added 
by section 1419 of the Dodd-Frank Act; (iii) for refinance 
transactions, the anti-deficiency protection notice under TILA section 
129C(g)(3), which was added by section 1414(c) of the Dodd-Frank Act; 
and (iv) the homeowner's insurance disclosure in TILA section 106(c) 
and Sec.  1026.4(d)(2)(i), which is required to exclude homeowner's 
insurance premiums from the finance charge. In the absence of the 
Bureau's proposed integration of the early TILA disclosure and the 
RESPA GFE, some of these new disclosures would have been added to the 
early TILA disclosure, which potentially could have increased that 
disclosure's typical two pages to three pages.
    The Bureau received numerous comments from industry and consumer 
advocacy groups generally supporting the design of the proposed 
integrated disclosures. For example, a large national bank commented 
that the proposed disclosures are a distinct improvement over those in 
existing regulations and that the Bureau has consolidated multiple 
disclosures, minimized the conflicts between existing RESPA and TILA 
disclosure requirements, and created forms that are more visually 
appealing and more understandable to the consumer than the current 
forms. A national consumer advocacy group commented that the proposed 
integrated disclosures are in many ways an improvement over existing 
disclosures. A community bank praised the integrated disclosures as 
clearer and more concise than existing disclosures and noted several 
areas of ``commendation'' in both the proposed Loan Estimate and 
Closing Disclosure. The FTC Staff praised the integrated disclosures, 
particularly their formatting and language, as more effective than the 
current forms in conveying key loan terms to consumers.
    In contrast, the Bureau received numerous comments that were 
critical of the design of the proposed integrated disclosures. For 
example, an individual settlement agent strongly criticized the 
proposed integrated disclosures, opining that they were significantly 
more complicated than the disclosures required under existing 
regulations. A national trade association representing mortgage lenders 
commented that the proposal went beyond what was necessary to reconcile 
TILA, RESPA, and the changes to both statutes mandated by the Dodd-
Frank Act. A national trade association representing title attorneys 
commented that the proposed forms were too complex to be useful for 
consumers and would likely require title attorneys or settlement agents 
to create explanatory documents, thereby increasing the number of pages 
provided to the consumer.
    Some commenters suggested that features not included in the 
integrated disclosures be added. For example, a national trade 
association representing mortgage bankers suggested that the Loan 
Estimate include a trade-off chart similar to one that was on the RESPA 
GFE, which would compare the loan that is subject of the Loan Estimate 
and another loan available to the borrower from that creditor that has 
a different rate, points, and fees mix. The comment stated that such a 
chart would be preferable to the Bureau's 2012 Loan Originator 
Proposal, which would have required that, before a creditor or mortgage 
broker may impose upfront points and/or fees on a consumer, the 
creditor must make available to the consumer a comparable, alternative 
loan with no upfront discount points, origination points, or 
origination fees (zero-zero alternative).\264\ A GSE suggested that 
there should be a place on the Closing Disclosure to reflect whether 
the consumer was closing another loan at the same time as the 
transaction that is the subject of the Closing Disclosure.
---------------------------------------------------------------------------

    \264\ The Bureau did not adopt the zero-zero alternative in the 
2013 Loan Originator Final Rule. 78 FR 11280 (Feb. 15, 2013).
---------------------------------------------------------------------------

    As discussed above in part III, the Bureau has conducted extensive 
consumer testing of the proposed Loan Estimate and Closing Disclosure, 
both on their own and in comparison to the existing RESPA GFE and RESPA 
settlement statement and early and final TILA disclosures. The testing 
reflects that consumers are able to use the integrated disclosures to 
understand the loan presented, compare loans when shopping, compare 
their estimated and actual charges, and that the integrated disclosures 
perform significantly better than the existing disclosures under TILA 
and RESPA. See Kleimann Testing Report at 277, 280; Kleimann 
Quantitative Study Report at 68-69. Moreover, the Bureau was required 
by the Dodd-Frank Act both to integrate the existing disclosures and to 
add certain new information on the integrated disclosures that the 
Dodd-Frank Act added to TILA. Accordingly, while the Bureau appreciates 
certain commenters' concern that the integrated disclosures are overly 
complex, the Bureau has extensively tested the integrated disclosures 
to ensure the design and layout of the new disclosures is effective for 
consumers and minimizes the risk of information overload, while still 
including the information required by TILA and RESPA, including the new 
requirements added to TILA by the Dodd-Frank Act. Similarly, while the 
Bureau understands commenters' desire to add components to the 
integrated disclosures, the Bureau declines to do so given its 
statutory requirements to include large amounts of new information and 
the risk to consumers of information overload if the Loan Estimate and 
Closing Disclosure added still more information. Comments addressing 
specific parts of the integrated disclosures will be addressed in more 
detail in the section-by-section analysis of individual provisions.
    Proposed Sec.  1026.37 would have required that the information set 
forth in Sec.  1026.37(a) through (n) be disclosed ``as applicable.'' 
The Bureau also proposed comments 37-1 and -2 to provide guidance 
regarding proposed Sec.  1026.37. Proposed comment 37-1 would have 
clarified that a disclosure that is not applicable to a particular 
transaction generally may be eliminated entirely. The proposed comment 
would have provided as an example that the disclosure required by Sec.  
1026.37(m)(3) need not be included in a transaction for which the 
creditor does not require homeowner's insurance. Proposed comment 37-1 
would have stated that a disclosure that is not applicable to a 
transaction alternatively may be included but marked ``not applicable'' 
or ``N/A.'' The proposed comment would have clarified that the 
adjustable payment table and adjustable interest rate information table 
required under proposed Sec.  1026.37(i) and (j), respectively, are 
only permitted to be included in particular transactions. Proposed 
comment 37-2 would have directed creditors to Sec.  1026.37(o) and its 
commentary for guidance on the proper format for the disclosures and 
permissible modifications to the format.
    Several trade associations representing mortgage lenders and a 
national title insurance company commented that the ``as applicable'' 
standard in proposed Sec.  1026.37 and comment 37-1 conflicted with 
proposed Sec.  1026.37(o)(1)(i), which would have required the use of 
the proposed

[[Page 79909]]

standard form H-24 of appendix H to Regulation Z for all federally 
related mortgage loans. These commenters questioned how a disclosure 
that was not applicable could be eliminated entirely while still using 
form H-24. These same commenters as well as a large bank, a document 
preparation company, and a law firm commented that forms that change 
depending on the type of the transaction, known as ``dynamic forms,'' 
are difficult to program and therefore very costly to implement. These 
commenters requested that the Bureau instead mandate a static form. The 
Bureau received no public comments on proposed comment 37-2.
    The Bureau believes that permitting inapplicable disclosures to be 
deleted is inconsistent with the proposal's intent for form H-24 to be 
used for all federally related mortgage loans, subject to certain 
limited exceptions noted in Sec.  1026.37(o). The Bureau further 
believes that permitting the standard form to change for each of the 
myriad transaction types for which it is used could result in a Loan 
Estimate that is difficult for consumers to use for shopping purposes 
and unnecessarily costly and confusing for industry to implement.
    Accordingly, the Bureau is revising Sec.  1026.37 to delete the 
phrase ``as applicable.'' Additionally, the Bureau is revising comment 
37-1 to clarify that disclosures under Sec.  1026.37 must reflect the 
terms of the legal obligation between the parties, and that if any 
information necessary for an accurate disclosure is unknown to the 
creditor, the disclosure must be made in good faith, based on the best 
information reasonably available at the time the disclosure is provided 
to the consumer pursuant to Sec. Sec.  1026.17(c) and 1026.19(e). The 
revised comment also clarifies that where a disclosure is not 
applicable, the disclosure may not be deleted from form H-24, unless 
otherwise provided under Sec.  1026.37, and the use of ``not 
applicable'' or ``N/A'' for inapplicable disclosures is not permitted. 
The comment states that the inapplicable disclosure may be left blank, 
unless otherwise provided under Sec.  1026.37. Final comment 37-1 is 
further revised to provide a different example of a disclosure that may 
be left blank pursuant to Sec.  1026.37, specifically, the amounts 
required to be disclosed by Sec.  1026.37(f)(1)(i) in a transaction for 
which the consumer does not pay points to the creditor to reduce the 
interest rate. As in the proposal, final comment 37-1 also references 
the adjustable payment and adjustable interest rate tables, which 
clarifies that the disclosures required by Sec.  1026.37(i) and (j) may 
be included only where applicable to the transaction and otherwise must 
be excluded. Comments related specifically to the dynamic nature of 
these tables will be discussed as part of this section-by-section 
analysis of Sec.  1026.37(i) and (j). Because it did not receive any 
comments on proposed comment 37-2, the Bureau is adopting comment 37-2 
as proposed.
    The Bureau adopts revised Sec.  1026.37 and comment 37-1, and 
comment 37-2 as proposed, pursuant to its authority under TILA section 
105(a), RESPA section 19(a), because the Bureau believes these 
provisions will promote the informed use of credit and more effective 
advance disclosure of settlement costs. In addition, the Bureau 
believes they will enable consumers to better understand the costs, 
benefits, and risks associated with mortgage transactions, consistent 
with Dodd-Frank Act section 1032(a). Furthermore, the Bureau believes 
they will improve consumer awareness and understanding of transactions 
involving residential mortgage loans and are therefore in the interest 
of consumers and the public, consistent with Dodd-Frank Act section 
1405(b).
37(a) General Information
    The Bureau proposed Sec.  1026.37(a), which would have combined and 
modified disclosures currently provided under Regulations X and Z in 
the Loan Estimate and would have added additional disclosures for 
transactions subject to proposed Sec.  1026.19(e). For the reasons 
discussed below and consistent with TILA section 105(a), RESPA section 
19(a), and the purposes of those statutes, the Bureau stated in the 
proposal that it believes that Sec.  1026.37(a) will promote the 
informed use of credit and more effective advance disclosure of 
settlement costs. In addition, the Bureau stated that it believed 
proposed Sec.  1026.37(a) will enable consumers to better understand 
the costs, benefits, and risks associated with mortgage transactions, 
consistent with Dodd-Frank Act section 1032(a). Furthermore, the Bureau 
stated it believes that Sec.  1026.37(a) will improve consumer 
awareness and understanding of transactions involving residential 
mortgage loans and is therefore in the interest of consumers and the 
public, consistent with Dodd-Frank Act section 1405(b). The Bureau 
received many comments related to the various provisions of Sec.  
1026.37(a) which will be discussed in detail below in their respective 
sections.
37(a)(1) Form Title
    Although the Dodd-Frank Act requires the Bureau to combine the TILA 
and RESPA mortgage disclosures that are currently provided to consumers 
within three business days after application, the Dodd-Frank Act does 
not prescribe a title for the integrated form. Under Sec.  1024.2(b) of 
Regulation X, the form providing consumers with the RESPA GFE of 
settlement charges they are likely to incur is called the ``Good Faith 
Estimate'' or ``GFE.'' Regulation Z does not prescribe a name for the 
early TILA disclosure required by Sec.  1026.19(a)(1), although comment 
17(a)(1)-5.ix permits the creditor to provide ``[a] brief caption 
identifying the disclosures'' and provides as examples of acceptable 
titles, ``Federal Truth in Lending Disclosures'' and ``Real Estate Loan 
Disclosures.''
    Proposed Sec.  1026.37(a)(1) would have required the creditor to 
use the term ``Loan Estimate'' as the title of the integrated 
disclosures provided pursuant to Sec.  1026.19(e). The Bureau stated 
its belief in the proposal that the adoption of a standardized form 
name may eliminate confusion for consumers seeking to compare estimates 
for different loans and thereby promote the informed use of credit and 
more effective advance notice of settlement costs, consistent with TILA 
section 105(a) and RESPA section 19(a), and will enable consumers to 
better understand the costs, benefits, and risks associated with 
mortgage transactions, consistent with Dodd-Frank Act section 1032(a). 
In addition, the Bureau stated that it believed the use of standard 
terminology for the integrated disclosures will facilitate compliance 
for industry, which is a purpose of this rulemaking under Dodd-Frank 
Act sections 1098 and 1100A. The Bureau did not receive any comments 
regarding proposed Sec.  1026.37(a)(1). Because the Bureau continues to 
believe that a standardized form name will effectuate the purposes of 
TILA and RESPA and facilitate compliance, it is adopting Sec.  
1026.37(a)(1) as proposed, based on the authority described in the 
proposal and above.
37(a)(2) Form Purpose
    Proposed Sec.  1026.37(a)(2) would have required the creditor to 
include a statement regarding one of the primary uses of the Loan 
Estimate for consumers, which is to compare it with the Closing 
Disclosure to verify the loan terms and costs. Specifically, proposed 
Sec.  1026.37(a)(2) would have required the creditor to provide the 
following

[[Page 79910]]

statement at the top of all Loan Estimates, ``Save this Loan Estimate 
to compare with your Closing Disclosure.''
    In the proposal, the Bureau stated its belief that the proposed 
language may benefit consumers and promote the informed use of credit 
by encouraging consumers to use the Loan Estimate as a tool to help 
them readily identify any changes to the loan transaction or costs that 
may have occurred between issuance of the initial Loan Estimate and the 
Closing Disclosure. The proposal noted that requiring creditors to 
disclose the purpose for the Loan Estimate and related disclosures is 
not a new requirement, and that appendix C to Regulation X currently 
requires specific language regarding the purpose of the RESPA GFE.\265\ 
The Bureau stated that it believed that while the Bureau's proposed 
language differs from that prescribed by HUD, the disclosure in 
proposed Sec.  1026.37(a)(2) accomplishes the same goal in a clearer 
and more succinct manner. The Bureau stated its belief that this 
disclosure will promote the informed use of credit and more effective 
advance notice of settlement costs, consistent with TILA section 105(a) 
and RESPA section 19(a), and will enable consumers to better understand 
the costs, benefits, and risks associated with mortgage transactions, 
consistent with Dodd-Frank Act section 1032(a).
---------------------------------------------------------------------------

    \265\ Appendix C to Regulation X requires the following 
statement on the RESPA GFE under the heading ``Purpose'': ``This GFE 
gives you an estimate of your settlement charges and loan terms if 
you are approved for this loan. For more information, see HUD's 
Special Information Booklet on settlement charges, your Truth-in-
Lending Disclosures, and other consumer information at www.hud.gov/respa. If you decide you would like to proceed with this loan, 
contact us.''
---------------------------------------------------------------------------

    The Bureau did not receive any comments on proposed Sec.  
1026.38(a)(2) and continues to believe disclosing the form purpose will 
benefit consumers in the ways discussed above. Accordingly, the Bureau 
is adopting Sec.  1026.37(a)(2) as proposed, based on the authority 
stated in the proposal and above.
37(a)(3) Creditor
    TILA section 128(a)(1) requires disclosure of the ``identity of the 
creditor required to make [the] disclosure.'' 15 U.S.C. 1638(a)(1). 
Regulation Z Sec.  1026.18(a) implements TILA section 128(a)(1) and 
requires for each transaction the identity of the creditor making the 
disclosure. HUD imposed a similar requirement in appendix C to 
Regulation X, requiring the name and contact information for the ``loan 
originator.''
    The Bureau proposed Sec.  1026.37(a)(3) pursuant to TILA section 
105(a), RESPA section 19(a), and Dodd-Frank Act section 1032(a), which 
mirrors Sec.  1026.18(a) and would have required the name of the 
creditor making the disclosure. The Bureau stated in the proposal that 
it believed that by allowing the consumer to identify the name of the 
creditor providing the Loan Estimate, this disclosure will promote the 
informed use of credit and more effective advance notice of settlement 
costs and will enable consumers to better understand the costs, 
benefits, and risks associated with mortgage transactions.
    Proposed comment 1026.37(a)(3)-1 would have cross-referenced Sec.  
1026.17(d) and comment 17(d)-1 and clarified that, in transactions with 
multiple creditors, only the creditor making the disclosure must be 
identified. Proposed comment 37(a)(3)-2 would have stated that, in 
transactions where the loan is originated by a mortgage broker, the 
name of the creditor, if known, must still be provided even if the 
mortgage broker provides the disclosure to the consumer.
    The Bureau did not receive any public comments on proposed Sec.  
1026.37(a)(3). Because the Bureau continues to believe that disclosure 
of the identity of the creditor making the disclosure will, for the 
reasons discussed, effectuate the purposes of TILA and RESPA, it is 
adopting Sec.  1026.37(a)(3) and its associated commentary 
substantially as proposed, based on the authority described in the 
proposal and above. The Bureau is revising comment 37(a)(3)-2 for 
clarity and to provide additional guidance for the mortgage broker if 
the name of the creditor is not known at the time the Loan Estimate is 
completed.
37(a)(4) Date Issued
    Appendix C to Regulation X requires creditors to provide the date 
of the RESPA GFE. Proposed Sec.  1026.37(a)(4) would have mirrored this 
requirement by mandating disclosure of the date the Loan Estimate is 
mailed or delivered to the consumer. Proposed comment 1026.37(a)(4)-1 
would have clarified that the ``date issued'' is the date the creditor 
delivers the Loan Estimate to the consumer and is not affected by the 
creditor's method of delivery.
    The Bureau proposed this requirement pursuant to its authority 
under TILA section 105(a) and RESPA section 19(a) because, as stated in 
the proposal, the Bureau believed disclosure of the date the Loan 
Estimate is issued will promote the informed use of credit and more 
effective advance disclosure of settlement costs, which are purposes of 
TILA and RESPA respectively, by enabling consumers to compare the Loan 
Estimate with any revised Loan Estimates that may be issued. In 
addition, the Bureau stated in the proposal that it believed this 
comparison will enable consumers to identify changes in loan terms and 
costs and thereby understand the costs, benefits, and risks associated 
with the mortgage transaction, consistent with Dodd-Frank Act section 
1032(a).
    The Bureau did not receive any comments on proposed Sec.  
1026.37(a)(4). The Bureau continues to believe mandating disclosure of 
the date the Loan Estimate is delivered will, for the reasons 
discussed, effectuate the purposes of both TILA and RESPA. Accordingly, 
the Bureau is adopting Sec.  1026.37(a)(4) as proposed, based on the 
authority described in the proposal and above. The Bureau is revising 
comment 37(a)(4)-1 to increase clarity by providing examples of the 
date disclosed. The Bureau is adding new comment 37(a)(4)-2 to provide 
guidance on the date disclosed when a transaction involves a mortgage 
broker.
37(a)(5) Applicants
    Appendix C to Regulation X requires disclosure of the name of the 
applicants for the mortgage loan transaction. Similarly, pursuant to 
TILA section 105(a), RESPA section 19(a), and Dodd-Frank Act section 
1032(a), proposed Sec.  1026.37(a)(5) would have required creditors to 
disclose the name and mailing address of the applicants for the loan 
transaction. The Bureau stated in the proposal that it believed that by 
enabling consumers to confirm that the Loan Estimate is intended for 
them, this disclosure will promote the informed use of credit and more 
effective advance notice of settlement costs and will enable consumers 
to better understand the costs, benefits, and risks associated with 
mortgage transactions. Proposed comment 37(a)(5)-1 would have clarified 
that where there are multiple consumers, the names and addresses of all 
consumers for the mortgage loan must be disclosed on the form and that 
if the form cannot accommodate the names of all the consumers, the 
creditor may attach to the back of the form a separate page listing the 
remaining consumers.
    Several national trade associations representing mortgage lenders 
requested clarification regarding the scope of the term ``consumer'' 
under proposed Sec.  1026.37(a)(5). The commenters noted that the 
definition of consumer in a rescindable transaction includes non-
applicant co-owners who have the right to cancel and recommended that 
individuals who are not applicants but

[[Page 79911]]

who have the right to cancel need not be disclosed, because doing so 
would be onerous and not fit in the space provided in form H-24. 
Several national trade associations representing mortgage lenders also 
noted that where there are multiple consumers, proposed comment 
37(a)(5)-1 would have explained that Sec.  1026.37(a)(5) required 
disclosure of each consumer's address, even though proposed comment 
17(d)-2 would have stated that delivery of the disclosures may be made 
only to consumers with primary liability on the obligation. Those 
commenters suggested that only the addresses of consumers to whom the 
Loan Estimate will be delivered should be disclosed.
    With respect to consumers in rescindable transactions, the Bureau 
understands that disclosing the names of non-applicant co-owners could 
be unnecessarily difficult, particularly because at the time the Loan 
Estimate is delivered, a title search likely will not have been 
completed and thus, the creditor would not know with certainty the 
names of non-applicant co-owners. Further, listing non-applicant co-
owners with rights of rescission on the Loan Estimate has little 
benefit for those co-owners given that they will typically not receive 
a copy of the Loan Estimate. Accordingly, the Bureau is revising Sec.  
1026.37(a)(5) to require disclosure of the name and mailing address 
only of the consumer applying for the credit. As discussed in the 
section-by-section analysis of Sec.  1026.17(d), the Bureau is 
finalizing amendments to comment 17(d)-2 that clarify that Sec.  
1026.2(a)(11) provides a specific definition of ``consumer'' for 
purposes of rescission under Sec. Sec.  1026.15 and 1026.23 that would 
include a non-applicant co-owner of a principal dwelling, and provides 
guidance regarding the provision of disclosures to such consumers. 
Regarding the proposal's requirement to list each consumer's address, 
the Bureau believes that listing the addresses of consumers to whom the 
Loan Estimate is not delivered because they are not primarily liable is 
unnecessary, and is therefore revising comment 37(a)(5)-1 accordingly.
    For the aforementioned reasons, the Bureau continues to believe 
that disclosure of the name and mailing address of the applicant will 
effectuate the purposes of TILA and RESPA and thus, is adopting Sec.  
1026.36(a)(5) as revised to require disclosure of the name and mailing 
address of the consumer applying for the credit, pursuant to the 
authority described in the proposal and above. The Bureau is adopting 
comment 37(a)(5)-1 with a revision to state that disclosure of a 
mailing address is required only for consumers to whom the Loan 
Estimate will be delivered.
37(a)(6) Property
    Appendix C to Regulation X requires at the top of the RESPA GFE the 
``address or location of the property'' for which the financing is 
sought. Appendix A to Regulation X requires the RESPA settlement 
statement to include the street address of the property being sold or 
if there is no street address, a brief legal description or other 
location of the property. Appendix A to Regulation X further requires 
disclosure of a zip code on the RESPA settlement statement in all 
cases. The Bureau proposed to use its authority in TILA section 105(a), 
RESPA section 19(a), and section 1032(a) of the Dodd-Frank Act to 
impose a similar requirement for the Loan Estimate required by Sec.  
1026.19(e). The Bureau stated in the proposal that it believed that, by 
providing the consumer with basic information about the property that 
is the subject of the loan transaction, this disclosure will promote 
the informed use of credit and more effective advance notice of 
settlement costs and will enable consumers to better understand the 
costs, benefits, and risks associated with mortgage transactions.
    Accordingly, proposed Sec.  1026.37(a)(6) would have required the 
creditor to disclose the street address or location of the property 
that secures the transaction that is the subject of the Loan Estimate. 
Proposed comment 37(a)(6)-1 would have instructed creditors to provide 
a legal description or other locator for the property in cases where 
there is no street address. The proposed comment also would have 
clarified that a zip code would be required in all instances.
    Several national trade associations representing mortgage lenders 
commented that requiring disclosure of the property address is 
problematic for consumers seeking preapproval for a transaction for 
which the property address is not yet known. Several national trade 
associations representing mortgage lenders and a document preparation 
company commented that when disclosing an alternative property address 
as described by proposed comment 37(a)(6)-1, sample form H-24 does not 
contain enough space to include a legal description of the property 
given that legal descriptions are often paragraphs long. A GSE 
requested in an ex parte meeting that the Bureau clarify how to 
disclose personal property that secures a transaction.
    With respect to preapprovals, the Bureau does not believe that 
requiring disclosure of a property address in such a situation is 
problematic. While the property address is one of the six elements of 
an application under Sec.  1026.2(a)(3)(ii) as finalized, without which 
the requirement to deliver a Loan Estimate is not triggered, a creditor 
is permitted to deliver a Loan Estimate without collecting a property 
address from the consumer. In that case, the Loan Estimate would be 
subject to Sec.  1026.19(e) and the creditor would be presumed to have 
collected the address, as described in comment 19(e)(3)(iv)(A)-3. As 
further described by that comment, the subsequent receipt of a property 
address would not be considered a changed circumstance pursuant to 
Sec.  1026.19(e)(3)(iv)(A) or (B). Under proposed Sec.  1026.37(a)(6), 
the creditor would not have been required to disclose the street 
address, as would have been clarified by proposed comment 37(a)(6)-1. 
Comment 37(a)(6)-1 would have stated, however, that a zip code is 
required in all instances. In addition, to the extent that a creditor 
does not want to provide a Loan Estimate for a preapproval before a 
property address is known, the creditor could instead deliver a written 
estimate of terms or costs specific to that consumer, provided that the 
written estimate contained the disclaimer required by Sec.  
1026.19(e)(2)(ii). Accordingly, the Bureau believes Sec.  1026.37(a)(6) 
does not need to be revised to address preapprovals. However, to 
provide additional flexibility for creditors to use the Loan Estimate 
for preapprovals where the property address is unknown, the Bureau is 
revising comment 37(a)(6)-1 to state that while the disclosure of a zip 
code is required in all instances, the creditor may disclose multiple 
zip codes if the consumer is investigating home purchase opportunities 
in multiple zip codes.
    In response to the commenters' concerns about disclosing a legal 
description of real property, the Bureau understands that a legal 
description would be unlikely to fit in the space provided for the 
disclosure required by Sec.  1026.37(a)(6) and has revised comment 
37(a)(6)-1 to delete the reference to a legal description. With respect 
to disclosing personal property, the Bureau recognizes that personal 
property may, in some cases, also secure a transaction. Accordingly, 
the Bureau is adding comment 37(a)(6)-2 to address the disclosure of 
personal property. The Bureau also believes additional clarity

[[Page 79912]]

regarding the disclosure requirements will facilitate compliance for 
industry.
    For the reasons stated above, and pursuant to the authority stated 
in the proposal and above, the Bureau is adopting Sec.  1026.36(a)(6) 
substantially as proposed, but with modifications to increase clarity 
regarding the information to be disclosed. The Bureau is revising Sec.  
1026.36(a)(6) to require disclosure of the address, including the zip 
code, of the property that secures or will secure the transaction, or 
if the address is unavailable, the location of such property including 
a zip code. The Bureau is further revising comment 37(a)(6)-1 to delete 
the reference to a legal description, to provide for the disclosure of 
multiple zip codes, and to clarify that a creditor complies with Sec.  
1026.37(a)(6) by disclosing a complete address for purposes of the U.S. 
Postal Service. The Bureau is adding comment 37(a)(6)-2 which clarifies 
that where personal property secures a transaction, a description of 
the personal property may be disclosed pursuant to Sec.  1026.37(a)(6) 
to the extent that it fits in the space provided for this disclosure on 
form H-24. Comment 37(a)(6)-2 explains, however, that the creditor is 
not permitted to add additional pages to the Loan Estimate to disclose 
personal property. The Bureau is concerned that adding an additional 
page to list personal property may risk information overload to the 
consumer and believes that such risk outweighs the benefit of such 
disclosure, given its comparatively lesser importance to a description 
of the real property that secures the transaction. Personal property 
that secures a credit transaction would also be disclosed on the 
Closing Disclosure pursuant to Sec.  1026.38(l)(6). The Bureau is 
further adding comment 37(a)(6)-3 to provide guidance on a transaction 
secured by more than one property. The Bureau adopts the revision to 
comment 37(a)(6)-1 and new comments 37(a)(6)-2 and -3 pursuant to its 
authority in TILA section 105(a), RESPA section 19(a), and section 
1032(a) of the Dodd-Frank Act.
37(a)(7) Sale Price
    Proposed Sec.  1026.37(a)(7)(i) would have required disclosure of 
the contract sale price for the property identified in Sec.  
1026.37(a)(6). For transactions that do not involve a seller, proposed 
Sec.  1026.37(a)(7)(ii) would have required disclosure of the estimated 
value for the property identified in Sec.  1026.37(a)(6). The 
disclosure of the contract sale price and estimated property value, as 
applicable, is a new requirement, which the Bureau proposed pursuant to 
its authority under TILA section 105(a), RESPA section 19(a), and 
section 1032(a) of the Dodd-Frank Act for transactions subject to 
proposed Sec.  1026.19(e). The Bureau stated in the proposal that it 
believed that including the contract sales price or estimated property 
value in the Loan Estimate will help promote the informed use of credit 
and more effective advance notice of settlement costs and will enable 
consumers to better understand the costs, benefits, and risks 
associated with mortgage transactions by ensuring that consumers have 
in a single location all the information needed to decide whether to 
enter into a legal obligation. Proposed comment 37(a)(7)-1 would have 
provided guidance regarding the requirement to provide the estimated 
value of the property in transactions where there is no seller.
    A regional bank commented that even in transactions where there is 
a seller, the sale price of the property may not be known at the time 
the Loan Estimate is delivered, especially because a sales contract is 
not one of the elements of an application, as defined in Sec.  
1026.2(a)(3), that triggers delivery of the Loan Estimate. A national 
trade association representing mortgage lenders requested guidance on 
which appraisal or valuation to use for an estimated property value 
where the creditor has obtained multiple appraisals or valuations but 
has not yet decided which one to use during underwriting. A GSE 
requested guidance in an ex parte meeting on whether to disclose the 
value of personal property in transactions where such property is 
valued separately from real property.
    With respect to the comment that the sale price of the property may 
not be known, the Bureau recognizes that there may be transactions that 
involve a seller where the sale price of the property is not yet known 
at the time the Loan Estimate is delivered. Accordingly, the Bureau is 
revising proposed comment 37(a)(7)-1 to clarify that disclosure of an 
estimated sales price in transactions that involve a seller where the 
contract sale price is not yet known is permissible if it is the 
estimated property value used by the creditor in making the disclosures 
in the Loan Estimate. For example, if the creditor has issued 
disclosures with origination charges based on a particular loan-to-
value ratio, the creditor should disclose a sale price that it used to 
determine that loan-to-value ratio. With respect to the comment that a 
creditor may not know which of multiple appraisals it obtained it will 
use for underwriting the transaction, the Bureau recognizes that 
proposed Sec.  1026.37(a)(7) did not address which valuation to 
disclose in this circumstance and is further revising comment 37(a)(7)-
1 to state that where a creditor has obtained multiple appraisals or 
valuations but has not yet decided which one to use, a creditor may 
disclose any appraisal or valuation it reasonably believes it may use 
in underwriting the transaction.
    With respect to personal property, the Bureau recognizes that 
proposed Sec.  1026.37(a)(7) did not address how to disclose personal 
property that may be part of the sale price of a transaction. The 
Bureau is adopting comment 37(a)(7)-2 to provide that where personal 
property is separately valued from real property, only the value of the 
real property should be disclosed pursuant to Sec.  1026.37(a)(7). 
Comment 37(a)(7)-2 further clarifies that where personal property is 
included in the sale price of the real property, Sec.  1026.37(a)(7) 
permits disclosure of the aggregate price without any reduction for the 
appraised or estimated value of the personal property.
    Because the Bureau continues to believe that disclosure of the 
contract sale price or estimated property value will effectuate the 
purposes of TILA and RESPA, it is adopting Sec.  1026.37(a)(7)(i) and 
(ii) substantially as proposed with minor revisions for clarity, based 
on the legal authority described in the proposal and above. For the 
reasons discussed, the Bureau is adopting comment 37(a)(7)-1 as revised 
and is adopting comment 37(a)(7)-2, pursuant to its authority under 
TILA section 105(a), RESPA section 19(a), and section 1032(a) of the 
Dodd-Frank Act.
37(a)(8) Loan Term
    Existing appendix C to Regulation X requires the loan originator to 
disclose the loan term as part of the ``Summary of Your Loan'' 
disclosure. Regulation Z does not have a similar requirement, although 
TILA provides for such a disclosure. TILA section 128(a)(6) requires 
disclosure of the ``number, amount, and due dates or period'' of 
periodic payments which, in effect, makes disclosure of the loan term a 
statutory requirement. Section 1026.18(g) implements TILA section 
128(a)(6) for non-mortgage transactions, but there is no corresponding 
disclosure requirement for mortgage loan transactions in existing Sec.  
1026.18(s). In the proposal, the Bureau stated its intent to implement 
TILA section 128(a)(6) by requiring disclosure of the loan term for 
mortgages in proposed Sec.  1026.37(a)(8). Proposed Sec.  1026.37(a)(8) 
essentially would have mirrored appendix C to Regulation X and would 
have required the creditor to disclose the term to maturity of the 
credit.

[[Page 79913]]

    The Bureau proposed Sec.  1026.37(a)(8) pursuant to its authority 
under TILA section 105(a), RESPA section 19(a), and section 1032(a) of 
the Dodd-Frank Act to implement TILA section 128(a)(6). The Bureau 
stated in the proposal that it believed disclosing the loan term will 
help promote the informed use of credit and more effective advance 
notice of settlement costs and will enable consumers to better 
understand the costs, benefits, and risks associated with mortgage 
transactions. The Bureau noted that the prototype mortgage disclosures 
used at the Bureau's consumer testing displayed the loan term expressed 
in years, and consumers were able to understand and evaluate easily the 
term to maturity. The Bureau stated in the proposal that it believed 
that this unit of time provides a frame of reference to consumers that 
they use more regularly and that is easier to understand than months, 
which may result in large numbers that are unfamiliar to consumers, 
such as 180 or 360 months. The Bureau stated that, accordingly, it 
proposed Sec.  1026.37(a)(8), which would have required the loan term 
to be expressed in years. The Bureau stated in the proposal that it 
understood from industry feedback provided in connection with the 
Bureau's stakeholder outreach that some adjustable rate loans may be 
structured so that the periodic principal and interest payment is fixed 
such that increases in the interest rate cause increases of the loan 
term instead of the periodic payment. The Bureau stated that, 
accordingly, it proposed comment 37(a)(8)-1, which would have provided 
guidance regarding compliance with the requirement of proposed Sec.  
1026.37(a)(8) if the term to maturity is adjustable under the terms of 
the legal obligation.
    Several national trade associations representing mortgage lenders 
and several document preparation companies commented that neither 
proposed Sec.  1026.37(a)(8) nor its accompanying commentary provided 
guidance on how to disclose loan terms that were not whole years, such 
as a term of 185 months. Further, two GSEs commented that identifying 
the term to maturity of the transaction was confusing in the case of a 
``construction-to-permanent'' transaction which has two distinct 
transaction phases. The commenters requested guidance on whether 
proposed Sec.  1026.37(a)(8) requires disclosure of the term of the two 
phases combined or of the permanent phase only and suggested that only 
the permanent loan term be disclosed.
    To address the commenters' requests for guidance regarding how to 
disclose loan terms that are not whole years, the Bureau is revising 
Sec.  1026.37(a)(8) and adopting new comment 37(a)(8)-1. Revised Sec.  
1026.37(a)(8) requires disclosure of the term stated in years or 
months, or both, as applicable and comment 37(a)(8)-1.i clarifies that 
where the term to maturity of the credit transaction is 24 months or 
more but does not equate to a number of whole years, Sec.  
1026.37(a)(8) requires disclosure of the number of whole years in the 
term to maturity followed by the designation ``yr.,'' and then the 
remaining number of months, followed by the designation ``mo.'' For 
example, if the term to maturity of the transaction is 185 months, the 
correct disclosure would be ``15 yr. 5 mo.'' Comment 37(a)(8)-1.ii 
further clarifies that, if the term to maturity does not equal a whole 
number of years and is less than 24 months, the disclosure required is 
the number of months, and provides additional examples.
    With regard to the comment suggesting that only the permanent phase 
of a construction-to-permanent loan should be required to be disclosed, 
the Bureau notes that existing Sec.  1026.17(c)(6)(ii) and its 
accompanying commentary address how to disclose construction-to-
permanent transactions. That provision provides that ``[w]hen a 
multiple-advance loan to finance the construction of a dwelling may be 
permanently financed by the same creditor, the construction phase and 
the permanent phase may be treated as either one transaction or more 
than one transaction.'' Accordingly, the disclosure required by Sec.  
1026.37(a)(8) would be the term of the combined phases if the 
construction-to-permanent transaction were disclosed as one transaction 
or the term of the individual phase, if disclosed as two transactions. 
The Bureau notes that the amendments to appendix D to Regulation Z in 
this final rule, as described below, provide additional guidance 
regarding the disclosure of construction-to-permanent transactions.
    The Bureau continues to believe that disclosing the loan term will, 
for the reasons discussed, effectuate the purposes of TILA and RESPA. 
Accordingly, based on the authority described in the proposal and 
above, the Bureau is adopting Sec.  1026.37(a)(8) as revised. The 
Bureau did not receive any comments regarding proposed comment 
37(a)(8)-1 and is adopting that comment substantially as proposed, with 
minor modifications for clarity, and renumbered as comment 37(a)(8)-2. 
For the reasons described above, the Bureau adopts new comment 
37(a)(8)-1 pursuant to its authority under TILA sections 105(a) and 
128(a)(6), RESPA section 19(a), and section 1032(a) of the Dodd-Frank 
Act.
37(a)(9) Purpose
    Neither Regulation Z nor Regulation X currently requires disclosure 
of the purpose of the loan. With the number of loan products available 
on the market, some of which are targeted for a particular purpose, the 
Bureau stated its belief in the proposal that inclusion of this 
information on the Loan Estimate will promote the informed use of 
credit and more effective advance notice of settlement costs and will 
enable consumers to better understand the costs, benefits, and risks 
associated with mortgage transactions. Accordingly, the Bureau proposed 
to use its authority under TILA section 105(a), RESPA section 19(a), 
and section 1032(a) of the Dodd-Frank Act to require creditors to 
disclose the intended purpose of the extension of credit.
    Under proposed Sec.  1026.37(a)(9), the creditor would have been 
required to disclose as the purpose of the loan one of the following: 
(1) purchase; (2) refinance; (3) construction; or (4) home equity loan. 
Proposed comment 37(a)(9)-1 would have provided general guidance on 
identifying the most accurate loan purpose and would have clarified 
that, in disclosing the loan purpose, the creditor must consider all 
relevant information available to the creditor at the time of the 
disclosure and that, if there is uncertainty, the creditor may rely on 
the consumer's stated purpose. In the proposal, the Bureau sought 
comment on whether additional loan purposes should be added to proposed 
Sec.  1026.37(a)(9).
    Several national trade associations representing mortgage lenders 
and two large banks commented that the loan purposes required by 
proposed Sec.  1026.37(a)(9) differ from those required to be disclosed 
under Regulation C, 12 CFR 1003, et seq., which implements the Home 
Mortgage Disclosure Act, 12 U.S.C. 2801 et seq. Those commenters 
suggested that defining loan purpose differently for Regulation C and 
for the integrated TILA-RESPA disclosures would create unnecessary 
regulatory complexity and increase the compliance burden for industry. 
One regional bank commenter, however, stated that the loan purpose 
categories proposed in Sec.  1026.37(a)(9) were sufficient. A document 
preparation company requested that the Bureau add temporary financing 
or ``bridge'' loans as a loan purpose.
    Regarding the definition of loan purpose, the Bureau recognizes 
that using the same definition in two of its

[[Page 79914]]

regulations may ease some compliance burden for industry. However, 
Regulation C and the integrated disclosures implement different 
statutes and have entirely different purposes. The purpose of the 
integrated disclosures set forth by the Dodd-Frank Act is to aid 
consumers' understanding of their loan transactions. Regulation C, by 
contrast, is intended to provide the public with loan data, which data 
is typically used by regulatory agencies to study the mortgage market 
and for compliance purposes. 12 CFR 1003.1. Given the different 
purposes of the integrated disclosures and Regulation C, the Bureau 
declines to revise Sec.  1026.37(a)(9) to conform with Regulation C.
    With respect to adding other loan purposes, in choosing the 
purposes proposed in Sec.  1026.37(a)(9), the Bureau intended to 
describe only the most common and basic loan purposes, recognizing that 
it would be impossible to list every conceivable specific purpose that 
a consumer has in obtaining a loan. The Bureau is satisfied that the 
purposes proposed will adequately describe the transactions covered by 
the final rule and declines to add temporary financing or ``bridge'' 
loans to Sec.  1026.37(a)(9). Accordingly, pursuant to the authority 
discussed above and in the proposal and for the reasons described, the 
Bureau is adopting Sec.  1026.37(a)(9) as proposed.
37(a)(9)(i) Purchase
    Proposed Sec.  1026.37(a)(9)(i) would have required the creditor to 
disclose that the loan is a ``Purchase,'' if the credit is obtained to 
finance the acquisition of the property that is the subject of the loan 
transaction. Proposed comment 37(a)(9)-1.i would have clarified the 
meaning of the term ``purchase.''
    A GSE requested that the Bureau clarify that in order for a loan to 
be considered a purchase loan, none of the borrowers can currently hold 
an ownership interest in the property. The commenter noted that such a 
clarification would align the meaning of purchase for the disclosure 
required by Sec.  1026.37(a)(9) with current industry standards. The 
Bureau believes that the general understanding of a ``purchase'' loan 
is one where the consumer does not already hold an interest in the 
property. Further, the Bureau believes that the proposed regulatory 
text is sufficient to convey such meaning, because it states that the 
disclosure applies to the ``acquisition'' of the property, and one 
cannot acquire what one already owns. Accordingly, the Bureau is 
adopting Sec.  1026.37(a)(9)(i) as proposed and comment 38(a)(9)-1.i 
substantially as proposed with minor modifications for clarity.
37(a)(9)(ii) Refinance
    Proposed Sec.  1026.37(a)(9)(ii) would have required the creditor 
to disclose that the loan is for a ``Refinance'' if, consistent with 
Sec.  1026.20(a) other than with regard to the identity of the 
creditor, the credit is to refinance an existing obligation already 
secured by the property that is the subject of the transaction. As 
under Sec.  1026.20(a), whether a transaction is a refinancing under 
proposed Sec.  1026.37(a)(9)(ii) would have depended on whether the 
original obligation has been satisfied or extinguished and replaced by 
a new obligation, based on the parties' contract and applicable law. 
The proposal stated that this may include an obligation under which 
amounts other than principal remain due under the existing obligation 
and are to be paid with the new obligation to satisfy the existing 
obligation. Proposed comment 37(a)(9)-1.ii would have clarified the 
meaning of the term ``refinance'' and explained that the consumer may 
or may not receive cash from the transaction. Proposed comment 
37(a)(9)-1.ii also would have provided a description of a refinancing 
with and without cash provided and provided an example of how a 
consumer may use cash received in a refinancing transaction with cash 
provided. Proposed comment 37(a)(9)-2 would have clarified that 
proposed Sec.  1026.37(a)(9)(ii), unlike Sec.  1026.20(a), applies to 
all such transactions even if the refinancing is undertaken by a new 
creditor.
    Two GSEs commented that the proposed definition of refinance does 
not align with common industry usage in that it fails to include credit 
secured by a dwelling not previously subject to a security interest. 
The proposed definition of refinance in Sec.  1026.37(a)(9)(ii) is not 
a new definition, however; it is the existing definition under Sec.  
1026.29(a) that is used throughout Regulation Z. Though the Bureau 
understands the GSEs' desire to define a refinance transaction in a way 
that aligns with current industry usage, the purposes of the integrated 
disclosures are to aid consumer understanding of the transaction and 
facilitate compliance with the disclosure requirements, and the Bureau 
believes that using the existing Regulation Z definition of refinance 
sufficiently informs consumers while facilitating compliance for 
creditors. Using the existing definition in Regulation Z avoids adding 
regulatory complexity through the creation of a new definition of that 
term. Accordingly, the Bureau declines to revise the proposed 
definition.
    However, as described below, the Bureau understands that additional 
clarity is necessary for situations in which more than one loan purpose 
could be used to describe a particular transaction. Accordingly, the 
Bureau is revising Sec.  1026(a)(9)(ii) to provide that the 
``Refinance'' disclosure is applicable only if the credit is not for 
the purpose described in Sec.  1026.37(a)(9)(i). The Bureau is further 
revising Sec.  1026.37(a)(9)(ii) and comment 37(a)(9)-2 to state that a 
transaction is for a refinance without regard to whether the creditor 
is the original creditor or a holder or servicer. For the reasons 
discussed above, the Bureau is adopting Sec.  1026.37(a)(9)(ii) and 
comment 37(a)(9)-2 as revised, and comment 37(a)(9)-1.ii as proposed.
37(a)(9)(iii) Construction
    If the extension of credit is to finance the construction of a 
dwelling on the property, proposed Sec.  1026.37(a)(9)(iii) would have 
required the creditor to disclose that the loan is for 
``Construction.'' Proposed comment 37(a)(9)-1.iii would have clarified 
that the creditor is required to disclose that the loan is for 
``Construction'' both in transactions where the extension of credit is 
to cover the costs of a construction project only (construction-only 
loan), whether it is a new construction or a renovation project, and in 
transactions where a multiple advance loan may be permanently financed 
by the same creditor (construction-to-permanent loan). The proposed 
comment also would have clarified that, in construction-only 
transactions, the consumer may be required to make interest only 
payments during the construction phase of the project with the loan 
balance due at the completion of the construction project. Finally, 
proposed comment 37(a)(9)-1.iii would have cross-referenced Sec.  
1026.17(c)(6)(ii) and comments 17(c)(6)-2 and -3 for further guidance 
regarding construction-to-permanent transactions.
    A GSE and two document preparation companies commented that 
disclosing a transaction for the purpose of a renovation, no matter how 
small, as a construction loan, does not align with common industry 
usage and would be confusing to consumers. The Bureau understands that 
disclosing the extension of credit for a renovation project as a 
construction loan could be confusing to the consumer because it is not 
aligned with common usage of the term, as well as industry usage.

[[Page 79915]]

Accordingly, the Bureau is revising comment 37(a)(9)-1.iii to refer to 
initial construction and to clarify that this disclosure does not apply 
to renovations. The Bureau is further revising Sec.  1026.37(a)(9)(iii) 
to state that a loan is for ``Construction'' only if it will be used to 
finance the initial construction of a dwelling and is not for one of 
the purposes described in Sec.  1026.37(a)(9)(i) or (ii), for the 
reasons discussed in the section-by-section analysis of Sec.  
1026.37(a)(9)(ii). Accordingly, credit obtained for the purpose of 
renovation shall be disclosed as a refinance or home equity loan, as 
applicable.
37(a)(9)(iv) Home Equity Loan
    If the extension of credit does not involve the purchase of real 
property as described in Sec.  1026.37(a)(9)(i) or the construction of 
a dwelling as described in Sec.  1026.37(a)(9)(iii) and will not be 
used to refinance an existing obligation as described in Sec.  
1026.37(a)(9)(ii), proposed Sec.  1026.37(a)(9)(iv) would have required 
the creditor to state that the extension of credit is for a ``Home 
Equity Loan.'' Proposed comment 37(a)(9)(iv)-1.iv would have clarified 
that the home equity loan disclosure applies whether the transaction 
will be secured by a first or subordinate lien on the property. The 
Bureau did not receive any comments on Sec.  1026.37(a)(9)(iv). The 
Bureau is adopting Sec.  1026.37(a)(9)(iv) and comment 37(a)(9)-1.iv 
substantially as proposed but with minor modifications for clarity.
37(a)(10) Product
    Pursuant to TILA section 128(b)(2)(C)(ii), under existing Sec.  
1026.18(s), the creditor is required to provide certain information 
about the interest rate and payments, which is based on the loan 
product. In proposed Sec.  1026.37(a)(10), the Bureau would have 
required a description of the loan product. The Bureau proposed this 
new requirement pursuant to its authority under TILA section 105(a), 
RESPA section 19(a), section 1032(a) of the Dodd-Frank Act, and section 
1405(b) of the Dodd-Frank Act with respect to residential mortgage 
loans. The Bureau stated in the proposal that it believed that 
requiring the disclosure of the loan product on the Loan Estimate 
promotes the informed use of credit and more effective advance 
disclosure of settlement charges by providing consumers with key loan 
terms early in the transaction and in a clear and conspicuous manner. 
The Bureau further stated in the proposal that this disclosure would 
enable consumers to better understand the costs, benefits, and risks 
associated with mortgage transactions. In addition, the Bureau stated 
its belief that disclosure of the loan product may improve consumer 
awareness and understanding of transactions involving residential 
mortgage loans through the use of disclosures, and is in the interest 
of consumers and in the public interest.
    Specifically, proposed Sec.  1026.37(a)(10)(i) would have required 
the creditor to identify the type of loan product for which the 
consumer has applied and proposed Sec.  1026.37(a)(10)(ii) would have 
required a description of certain loan features added to the loan 
product that may change the consumer's periodic payment. Proposed Sec.  
1026.37(a)(10)(iii) would have provided instructions on how to disclose 
loan products that contain one or more loan features, would have stated 
that the creditor may disclose only one loan feature, and cross-
referenced proposed Sec.  1026.37(a)(10)(ii) as establishing the 
following hierarchy to be adhered to when disclosing a loan product 
with more than one loan feature: (1) Negative amortization; (2) 
interest only; (3) step payment; (4) balloon payment; and (5) seasonal 
payment. Proposed Sec.  1026.37(a)(10)(iv) would have required that the 
disclosure of any loan product or loan feature be preceded by any 
introductory rate periods, adjustable features, and applicable time 
periods. This aspect of the proposal would not have applied to fixed 
rate loans with no additional features. Finally, comments to proposed 
Sec.  1026.37(a)(10) would have provided further descriptions and 
examples of the loan products and features to be disclosed.
    A national trade association representing mortgage lenders 
commented that requiring the disclosure of loan features was confusing 
as part of the loan product name and recommended instead that the loan 
features be disclosed in the ``loan terms'' section of the Loan 
Estimate. A large bank commented that disclosing only one loan feature 
was misleading to the consumer and prevented useful shopping for loan 
products; instead the commenter suggested disclosing all applicable 
features.
    As discussed above, the Bureau has extensively tested the 
integrated disclosures and concluded that consumers are able to use 
them to compare and make sophisticated trade-offs between various loan 
products. See Kleimann Testing Report at 278. The Bureau believes that 
the general design of the loan product disclosure is beneficial for 
consumers and has determined not to change the structure of proposed 
Sec.  1026.37(a)(10). Accordingly, the Bureau is finalizing Sec.  
1026.37(a)(10) substantially as proposed, with minor modifications for 
clarity, based on the authority described in the proposal and above.
37(a)(10)(i)
    Proposed Sec.  1026.37(a)(10)(i) would have required disclosure of 
one of three product types: Adjustable rate, step rate, or fixed rate, 
as defined in that paragraph as the product for which the consumer has 
applied. Proposed comment 37(a)(10)-1 would have clarified the proper 
format for disclosure of the product types listed. The Bureau did not 
receive any comments regarding proposed Sec.  1026.37(a)(10)(i) and is 
adopting it as proposed. The Bureau is adopting comment 37(a)(10)-1 as 
revised to clarify that only the first adjustment period shall be 
disclosed for any loan without the features described in Sec.  
1026.37(a)(10)(ii), for the reasons discussed in the section-by-section 
analysis of Sec.  1026.37(a)(10)(iv), below.
37(a)(10)(i)(A) Adjustable Rate
    If the interest rate may increase after consummation, but the rates 
that will apply or the periods for which they will apply are not known 
at consummation, proposed Sec.  1026.37(a)(10)(i)(A) would have 
required that the loan be disclosed as an ``Adjustable Rate.'' Proposed 
comment 37(a)(10)-1.i would have clarified that the proper format for 
disclosure of an adjustable rate product is the length of any 
introductory period, followed by the frequency of the adjustment 
periods thereafter preceding the loan product. For example, where the 
loan product is an adjustable rate with an introductory rate that 
remains the same for the first five years of the loan term and then 
adjusts every three years starting in year six, proposed comment 
37(a)(10)-1.i would have explained that the disclosure required by 
Sec.  1026.37(10) is ``5/3 Adjustable Rate.''
    Several industry commenters requested guidance regarding how to 
disclose adjustable loan rate products that have multiple adjustment 
intervals. One national trade association representing mortgage lenders 
requested guidance for how to disclose an adjustable rate loan where 
the introductory period may be within a certain range of months but is 
not yet known.
    The Bureau recognizes that the proposal did not address how to 
disclose such products. Accordingly, the Bureau is adopting

[[Page 79916]]

Sec.  1026.37(a)(10)(i)(A) as proposed, but is expanding comment 
37(a)(10)-1.i to address comments requesting guidance on how to 
disclose adjustable rate loan products which have multiple adjustment 
intervals. Comment 37(a)(10)-1.i is revised to clarify that disclosure 
of only the first adjustment period is required for the reasons 
discussed in the section-by-section analysis of Sec.  
1026.37(a)(10)(iv), below. To further address the numerous potential 
adjustable rate products, the Bureau is adding comment 37(a)(10)-1.i.A 
to explain that where an adjustable rate loan product has no 
introductory period, the creditor is required to disclose a ``0'' 
followed by the first adjustment period. The Bureau also is adding 
comment 37(a)(10)-1.i.B to clarify, in response to the comment received 
regarding unknown introductory periods, that where the introductory 
period is not yet known, Sec.  1026.37(a)(10) requires disclosure of 
the shortest potential introductory period.
37(a)(10)(i)(B) Step Rate
    Under proposed Sec.  1026.37(a)(10)(i)(B), the loan product would 
have been required to be disclosed as a ``Step Rate'' if the interest 
rate will change after consummation and the applicable rates and the 
periods for the applicable rates are known. Proposed comment 37(a)(10)-
1.ii would have clarified the proper format for disclosure of a step-
rate product.
    A regional bank and a document preparation company both requested 
guidance on how to disclose preferred rate transactions under proposed 
Sec.  1026.37(a)(10). One document preparation company commenter 
requested clarification of whether a transaction subject to a third-
party buydown would be disclosed as a step rate transaction pursuant to 
proposed Sec.  1026.37(a)(10)(i)(B). The Bureau also received comments 
from varied sources questioning the logic of requiring the disclosure 
of multiple adjustment intervals for the step rate product example in 
proposed comment 37(a)(10)-1.ii.
    With respect to the request for guidance regarding preferred rate 
transactions, the Bureau notes that existing comment 17(c)(1)-11.iii 
provides guidance regarding preferred rate loans, which applies to the 
disclosures required by Sec.  1026.37(a)(10). In a preferred rate 
transaction, the terms of the legal obligation provide that the initial 
underlying rate is fixed but will increase upon the occurrence of some 
event, and the note reflects the preferred rate. As the terms of the 
legal obligation reflect the preferred rate, the disclosures are to be 
based on the preferred rate. The Bureau additionally notes that if the 
preferred rate under the terms of the legal obligation were set to 
expire at a defined future date, the disclosures required by Sec.  
1026.37 should reflect such expiration of the preferred rate as a 
scheduled interest rate adjustment. With respect to third-party 
buydowns, existing comment 1026.17(c)(1)-3 addresses how to treat such 
transactions, which guidance would apply to the disclosure required by 
Sec.  1026.37(a)(10)(i)(B).
    The Bureau is adopting Sec.  1026.37(a)(10)(i)(B) as proposed but 
is revising comment 37(a)(10)-1.ii to clarify that disclosure of only 
the first adjustment interval is required, for the reasons discussed in 
the section-by-section analysis of Sec.  1026.37(a)(10)(iv). In 
response to the comments received regarding the proposed step rate 
example, the Bureau is also revising comment 37(a)(10)-1.ii to clarify 
how to disclose a step rate product without an introductory rate.
37(a)(10)(i)(C) Fixed Rate
    Proposed Sec.  1026.37(a)(10)(i)(C) would have required the 
creditor to disclose the loan product as a ``Fixed Rate'' if the 
product is neither an Adjustable Rate nor a Step Rate, as described in 
Sec.  1026.37(a)(10)(i)(A) and (B), respectively. Proposed comment 
37(a)(10)-1.iii would have provided guidance regarding the disclosure 
required by Sec.  1026.37(a)(10)(i)(C). The Bureau did not receive any 
comments on proposed Sec.  1026.37(a)(10)(i)(C) describing fixed rate 
loan products or its accompanying comment, proposed comment 37(a)(10)-
1.iii. Accordingly, the Bureau is adopting proposed Sec.  
1026.37(a)(10)(i)(C) and its accompanying comment as proposed.
37(a)(10)(ii)
    Proposed Sec.  1026.37(a)(10)(ii) would have required the 
disclosure of loan features that may change the consumer's periodic 
payment. As noted above, although structured differently, Sec.  
1026.18(s) requires a similar disclosure. Proposed Sec.  
1026.37(a)(10)(ii) would have required the consumer to disclose one of 
the following features, as applicable: Negative amortization, interest 
only, step payment, balloon payment, or seasonal payment. Where a 
transaction has more than one of the loan features described in that 
paragraph, proposed Sec.  1026.37(a)(10) would have required disclosure 
only of the first applicable feature in the order the features are 
listed in Sec.  1026.37(a)(10)(ii).
    Proposed comment 37(a)(10)-2 would have clarified the requirements 
of proposed Sec.  1026.37(a)(10)(iii) and (iv) with respect to the 
feature that is disclosed and the time period or the length of the 
introductory period and the frequency of the adjustment periods, as 
applicable, that preceded the feature. The proposed comment would have 
provided as examples: An adjustable rate product with an introductory 
rate that is interest only for the first five years and then adjusts 
every three years starting in year six would be disclosed as ``5 Year 
Interest Only, 5/3 Adjustable Rate''; a step-rate product with an 
introductory interest rate that lasts for seven years, and adjusts 
every year thereafter for the next five years at a predetermined rate 
would be disclosed as ``7/1 Step Rate''; and a fixed rate product that 
is interest only for ten years with a balloon payment due at the end of 
the ten-year period would be disclosed as ``10 Year Interest Only, 
Fixed Rate.'' The proposal noted that the balloon payment feature, 
however, also would be disclosed elsewhere on the form.
    One trade association representing banks requested guidance on how 
to disclose a loan that had multiple features. As stated in the 
proposal, where a transaction has more than one of the features listed, 
Sec.  1026.37(a)(10)(iii) requires disclosure of only one feature, the 
first applicable feature in the order they are listed in the 
regulation. The Bureau is adopting Sec.  1026.37(a)(10)(ii) 
substantially as proposed but with a minor modification for clarity. 
The Bureau is revising comment 37(a)(10)-2 to clarify that where a 
transaction feature has multiple adjustment periods, only the first 
adjustment period must be disclosed for the reasons discussed in the 
section-by-section analysis of Sec.  1026.37(a)(10)(iv), below.
37(a)(10)(ii)(A) Negative Amortization
    Proposed Sec.  1026.37(a)(10)(ii)(A) would have required that the 
creditor disclose a ``Negative Amortization'' loan feature if, under 
the terms of the legal obligation, the loan balance may increase. 
Proposed comment 37(a)(10)-2.i would have provided an example of the 
disclosure of a loan product with a negative amortization feature. The 
Bureau did not receive any comments on proposed Sec.  
1026.37(a)(10)(ii)(A) or its accompanying commentary and is adopting 
Sec.  1026.37(a)(10)(ii)(A) as proposed. The Bureau is adopting comment 
37(a)(10)-2.i substantially as proposed but with a minor modification 
for clarity.

[[Page 79917]]

37(a)(10)(ii)(B) Interest Only
    Proposed Sec.  1026.37(a)(10)(ii)(B) would have required that the 
creditor disclose an ``Interest Only'' loan feature if, under the legal 
obligation, one or more regular periodic payments may be applied only 
to interest accrued and not to the loan principal. Proposed comment 
37(a)(10)-2.ii would have provided an example of the disclosure of a 
loan product with an interest only feature. The Bureau did not receive 
any comments on proposed Sec.  1026.37(a)(10)(ii)(B) or its 
accompanying commentary and is adopting Sec.  1026.37(a)(10)(ii)(B) as 
proposed. The Bureau is adopting comment 37(a)(10)-2.ii substantially 
as proposed but with a minor modification for clarity.
37(a)(10)(ii)(C) Step Payment
    Proposed Sec.  1026.37(a)(10)(ii)(C) would have required that the 
creditor disclose a ``Step Payment'' loan feature if the terms of the 
legal obligation include a feature that involves scheduled variations 
in the periodic payment during the term of the loan that are not caused 
by changes in the interest rate. Proposed comment 37(a)(10)-2.iii would 
have clarified that the term ``step payment'' is sometimes also called 
a ``graduated payment'' and provided an example and guidance on the 
format to be used when disclosing a loan product with a Step Payment 
feature. The Bureau did not receive any comments on proposed Sec.  
1026.37(a)(10)(ii)(C) and is adopting it as proposed. The Bureau is 
adopting comment 37(a)(10)-2.iii substantially as proposed but with a 
minor modification for clarity.
37(a)(10)(ii)(D) Balloon Payment
    Proposed Sec.  1026.37(a)(10)(ii)(D) would have required that the 
creditor disclose a ``Balloon Payment'' loan feature if the transaction 
includes a balloon payment as defined in proposed Sec.  1026.37(b)(5). 
Proposed comment 37(a)(10)-2.iv would have clarified that the term 
``balloon payment'' has the same meaning as in proposed Sec.  
1026.37(b)(5) and provided further guidance on the format to be used 
when disclosing a loan product with a balloon payment feature. The 
Bureau did not receive any comments on proposed Sec.  
1026.37(a)(10)(ii)(D) and is adopting it substantially as proposed with 
a revision to state that the feature should be disclosed if the terms 
of the obligation include it, to conform to the language used in Sec.  
1026.37(a)(10)(ii)(E). The Bureau is adopting comment 37(a)(10)-2.iv as 
revised to clarify that if a transaction includes more than one balloon 
payment, only the earliest year that a balloon payment is due must be 
disclosed.
37(a)(10)(ii)(E) Seasonal Payment
    Proposed Sec.  1026.37(a)(10)(ii)(E) would have required that the 
creditor disclose whether the terms of the legal obligation expressly 
provide that regular periodic payments are not scheduled for specified 
unit-periods on a regular basis, disclosed as a ``Seasonal Payment'' 
feature. The Bureau stated in the proposal that it understands from 
industry feedback provided in connection with the Bureau's stakeholder 
outreach that some loans, which may be more prevalent in the community 
bank market, may be structured so that periodic principal and interest 
payments are not scheduled to be made by the consumer in between 
specified unit-periods on a regular basis. The proposal provided as an 
example that such a loan may be structured so that payments are not 
required to be made by the consumer during the months of June through 
August each year of the loan term. The proposal noted that these loans 
are sometimes called ``teacher loans.'' Proposed Sec.  
1026.37(a)(10)(ii)(E) would have provided for the disclosure of such a 
product feature. Proposed comment 37(a)(10)-2.v would have provided 
guidance regarding this requirement. The Bureau did not receive any 
comments on proposed Sec.  1026.37(a)(10)(ii)(E) and is adopting it and 
comment 37(a)(10)-2.v as proposed.
37(a)(10)(iii)
    Proposed Sec.  1026.37(a)(10)(iii) would have required that if more 
than one loan feature is applicable to the transaction, the creditor 
disclose only the first applicable loan feature from the order in which 
they are presented in proposed Sec.  1026.37(a)(10)(ii). The proposal 
stated that this proposed order of loan features prioritizes the loan 
features to ensure that consumers receive information about potential 
costs and risks in a readily visible format, understanding that 
consumers will receive information about some applicable features 
elsewhere in the Loan Estimate. The proposal provided as an example 
that the existence of a balloon payment also would have been disclosed 
under both proposed Sec.  1026.37(b) and (c), and thus, is later in the 
order of loan features under proposed Sec.  1026.37(a)(10)(iii). In 
addition, the Bureau stated its belief in the proposal that seasonal 
payments do not pose as great a risk to consumers as do negatively 
amortizing or non-amortizing payments, and thus, disclosure of these 
features is earlier than seasonal payments in the order under proposed 
Sec.  1026.37(a)(10)(iii).
    Several document preparation companies and a large bank commented 
that the proposal was not clear with regard to how to disclose 
construction-to-permanent loans, which often have an adjustable rate 
phase followed by a fixed rate phase. As discussed above in the 
section-by-section analysis of Sec.  1026.37(a)(8), existing Sec.  
1026.17(c)(6)(ii) and its accompanying commentary address how to 
disclose construction-to-permanent transactions. Section 
1026.17(c)(6)(ii) provides that ``[w]hen a multiple-advance loan to 
finance the construction of a dwelling may be permanently financed by 
the same creditor, the construction phase and the permanent phase may 
be treated as either one transaction or more than one transaction.'' 
Accordingly, a creditor may disclose a construction-to-permanent loan 
as separate transactions with distinct loan product types. Should a 
creditor choose to treat the construction-to-permanent transaction as 
one, however, the Bureau notes that the disclosure of a Fixed Rate 
product type is only permitted under Sec.  1026.37(a)(10) if the 
product does not otherwise fall within the definition of Adjustable 
Rate or Step Rate product under Sec.  1026.37(a)(10)(i)(A) or (B). 
Accordingly, where a construction-to-permanent transaction has an 
adjustable rate construction phase followed by a fixed rate permanent 
phase, Sec.  1026.37(a)(10) would require it to be disclosed as an 
adjustable rate product because the adjustable rate phase would fall 
within the Adjustable Rate product determination. The Bureau is 
adopting Sec.  1026.37(a)(10)(iii) as proposed.
37(a)(10)(iv)
    Finally, proposed Sec.  1026.37(a)(10)(iv) would have required the 
creditor to include in the disclosures required by Sec.  
1026.37(a)(10)(i) and (ii) information regarding any introductory rate 
period, adjustment period, or time period, as applicable, and that this 
information should precede both the loan product and any features 
disclosed, as applicable.
    The Bureau received comments from a document preparation company 
and a national trade association representing mortgage lenders 
requesting clarification regarding the disclosure of transactions where 
there are multiple adjustment periods. Specifically, the commenters 
asked for explanation of proposed comment 37(a)(10)-1.ii, which would 
have addressed step rate loan products. That proposed comment stated 
that, for example, if a step rate loan had an introductory interest 
rate

[[Page 79918]]

that lasts for 10 years and adjusts every year thereafter for the next 
five years, and then adjusts every three years for the next 15 years, 
the disclosure required by Sec.  1026.37(a)(10) is ``10/1/3 Step 
Rate.'' Further, a document preparation company and a national trade 
association representing mortgage lenders commented that proposed Sec.  
1026.37(a)(10) was silent on how to disclose product types and features 
that change after a period of months or days that do not correspond to 
whole years.
    The Bureau has considered these comments and has determined that, 
given the possibility of multiple adjustment periods over the course of 
a single transaction, Sec.  1026.37(a)(10)(iv) should be revised to 
limit the number of periods to be disclosed. The Bureau has determined 
that disclosing every adjustment period as part of the loan product 
could be confusing to consumers and difficult to implement. As 
mentioned in the proposal and above in part III, the Bureau is 
concerned about the risk to consumers of information overload. The 
Bureau believes that the first period of adjustment of a loan feature 
would aid consumer understanding of that feature without potentially 
causing information overload. Accordingly, the Bureau is revising Sec.  
1026.37(a)(10)(iv) to require that the loan product be preceded by a 
description of any introductory rate period, and only the first 
adjustment period, as applicable, and to provide additional clarity.
    With respect to the comment regarding product types and features 
that have introductory periods or adjustment periods that do not equate 
to a number of whole years, the Bureau believes, after considering this 
comment, that it would facilitate compliance with the disclosure 
requirements to address this possibility in the commentary. 
Accordingly, the Bureau is adding comment 37(a)(10)-3 to clarify how to 
disclose product types and features that have periods that do not 
equate to a number of whole years. Comment 37(a)(10)-3 also clarifies 
how to disclose product types and features that have adjustment periods 
that change more frequently than monthly.
37(a)(11) Loan Type
    Existing appendix A to Regulation X requires disclosure of the loan 
type in section B of the RESPA settlement statement. The Bureau 
proposed to use its authority under TILA section 105(a), RESPA section 
19(a), and Dodd-Frank Act 1032(a) to require a similar disclosure. The 
types of transactions disclosed under proposed Sec.  1026.37(a)(11) 
would have permitted disclosure of different cost structures or 
underwriting requirements. The Bureau stated its belief in the proposal 
that the disclosure of the type of transaction enables consumers to 
evaluate whether it is the type of transaction that is best suited for 
their personal situation. The Bureau stated that it believed that 
including information regarding the type of transaction for which the 
consumer has applied will promote the informed use of credit and more 
effective advance disclosure of closing costs, and will enable 
consumers to better understand the costs, benefits, and risks 
associated with mortgage transactions by providing consumers with 
information regarding important characteristics of the loan early in 
the transaction. Accordingly, under proposed Sec.  1026.37(a)(11), 
creditors would have been required to disclose one of the following 
loan types: Conventional, FHA, VA, or Other. The Bureau did not receive 
any comments on proposed Sec.  1026.37(a)(11) and is adopting it as 
proposed, based on the legal authority described above and in the 
proposal.
37(a)(11)(i) Conventional
    If the loan is not guaranteed or insured by a Federal or State 
government agency, proposed Sec.  1026.37(a)(11)(i) would have required 
the creditor to disclose that the loan is a ``Conventional.'' The 
Bureau did not receive any comments on proposed Sec.  1026.37(a)(11)(i) 
and is adopting it as proposed.
37(a)(11)(ii) FHA
    If the loan is insured by the Federal Housing Administration, 
proposed Sec.  1026.37(a)(11)(ii) would have required the creditor to 
disclose that the loan is an ``FHA.'' The Bureau did not receive any 
comments on proposed Sec.  1026.37(a)(11)(ii) and is adopting it as 
proposed.
37(a)(11)(iii) VA
    If the loan is guaranteed by the U.S. Department of Veterans 
Affairs, proposed Sec.  1026.37(a)(11)(iii) would have required the 
creditor to disclose that the loan is a ``VA.'' The Bureau did not 
receive any comments on proposed Sec.  1026.37(a)(11)(iii) and is 
adopting it as proposed.
37(a)(11)(iv) Other
    For federally-insured or guaranteed loans that do not fall within 
the categories described in proposed Sec.  1026.37(a)(11)(i) through 
(iii) and loans insured or guaranteed by a State agency or other 
entity, proposed Sec.  1026.37(a)(11)(iv) would have required the 
creditor to disclose the loan type as ``Other'' and provide a brief 
description of the loan. Proposed comment 37(a)(11)-1 would have 
provided details on the type of loans that would be categorized as 
``Other'' and an example of an acceptable description of a loan that 
falls within that category.
    A document preparation company commenter requested that Sec.  
1026.37(a)(11) add USDA loans as an additional loan type. A large bank 
and a national title company asked for guidance on how to describe 
``other loans'' and whether additional pages could be attached to the 
Loan Estimate to do so where the space provided was not adequate. 
Another document preparation company asked for a list of all possible 
loan types.
    Regarding USDA loans, the Bureau notes that it specifically 
explained in proposed comment 37(a)(11)-1, that a loan guaranteed or 
funded by the Rural Housing Service of the USDA would have to be 
disclosed as ``Other.'' Given the space constraints of the Loan 
Estimate and the Closing Disclosure and the risk of information 
overload to the consumer, the Bureau believes it appropriate to create 
check boxes for the most common loan types and a general space for 
other types labeled as ``Other.'' With respect to the description of 
``Other'' loans, the Bureau does not believe that adding a page for a 
description of loan type that does not fit into the space provided on 
form H-24 would benefit consumers, given the risk of information 
overload. The Bureau believes that creditors should be able to 
concisely describe the loan type in the space provided and that 
appending additional pages to the Loan Estimate for this disclosure 
could cause consumer confusion. Accordingly, the Bureau declines to 
revise Sec.  1026.37(a)(11)(iv) or comment 37(a)(11)-1 to permit the 
use of an additional page for the disclosure of ``other'' loan types. 
With respect to the request for a list of permissible loan types, as 
stated in the proposal, the permissible loan types under Sec.  
1026.37(a)(11) are conventional, FHA, VA, and other. Because the Bureau 
continues to believe that a disclosure of loan type will, for the 
reasons discussed, effectuate the purposes of both TILA and RESPA, it 
is adopting Sec.  1026.37(a)(11)(iv) as proposed. Comment 37(a)(11)-1 
is adopted substantially as proposed with minor modifications for 
clarity.
37(a)(12) Loan Identification Number (Loan ID )
    Appendix A to Regulation X requires the settlement agent to provide 
the

[[Page 79919]]

``loan number'' in the RESPA settlement statement. The Bureau proposed 
to use its authority in TILA section 105(a), RESPA section 19(a), and 
Dodd-Frank Act section 1032(a) to require disclosure of the loan number 
on the Loan Estimate. The Bureau stated its belief in the proposal that 
including this information in a prominent position on the Loan Estimate 
will promote the informed use of credit and more effective advance 
disclosure of settlement costs and will enable consumers to better 
understand the costs, benefits, and risks associated with mortgage 
transactions by providing consumers with access to information they may 
use repeatedly throughout the transaction.
    Accordingly, proposed Sec.  1026.37(a)(12) would have required the 
creditor to provide a unique number that may be used by the lender, 
consumer, and other parties to identify the loan transaction, labeled 
as ``Loan ID .'' Proposed comment 37(a)(12)-1 would have 
clarified that the lender has the discretion to create the unique loan 
identification number and that different and unrelated loan 
transactions with the same creditor may not share the same loan 
identification number.
    The Bureau did not receive any comments on proposed Sec.  
1026.37(a)(12) or comment 37(a)(12)-1. Because the Bureau continues to 
believe that disclosure of a loan identification number will, for the 
reasons discussed, effectuate the purposes of TILA and RESPA, it is 
adopting Sec.  1026.37(a)(12) substantially as proposed, based on the 
authority described above and in the proposal, with modifications for 
clarity. In order to ensure that a particular transaction retains the 
same loan identification number throughout the loan application 
process, the Bureau is revising proposed comment 37(a)(12)-1 to clarify 
that where a creditor issues a revised Loan Estimate for a transaction, 
the loan identification number must remain the same as on the initial 
Loan Estimate. The Bureau further notes and is revising comment 
37(a)(12)-1 to clarify that the identification number disclosed under 
Sec.  1026.37(a)(12) must be a unique ``number'' to enable parties to 
identify the particular transaction using such number, and that the 
``number'' may be composed of any alpha-numeric characters and need not 
be limited to numbers. The Bureau adopts comment 37(a)(12)-1 as revised 
pursuant to its authority in TILA section 105(a), RESPA section 19(a), 
and Dodd-Frank Act section 1032(a).
37(a)(13) Rate Lock
    Existing appendix C to Regulation X requires the loan originator to 
disclose information regarding the expiration date for the interest 
rate, charges, and related terms offered by the originator in the RESPA 
GFE. As stated in the proposal, the Bureau believed that this 
information is critical to the consumer's ability to understand the 
transaction and avoid the uninformed use of credit. Furthermore, the 
Bureau stated its belief in the proposal that disclosure of this 
information would promote more effective advance disclosure of 
settlement costs and will enable consumers to better understand the 
costs, benefits, and risks associated with mortgage transactions. Thus, 
the Bureau proposed to use its authority under TILA section 105(a), 
RESPA section 19(a), and Dodd-Frank Act section 1032(a) to require 
creditors to provide the rate lock information currently provided in 
the RESPA GFE.
    Consistent with this requirement, proposed Sec.  1026.37(a)(13) 
would have required the creditor to disclose whether the interest rate 
identified under proposed Sec.  1026.37(b)(2) has been locked by the 
consumer and, if set, proposed Sec.  1026.37(a)(13)(i) would have 
required disclosure of the date and time (including the applicable time 
zone) the locked rate would expire. Proposed Sec.  1026.37(a)(13)(ii) 
would have stated that the ``rate lock'' statement required by proposed 
Sec.  1026.37(a)(13) is to be accompanied by a statement notifying the 
consumer that the interest rate, points, and lender credits provided in 
the Loan Estimate are subject to change unless the rate has been set by 
the consumer and the date and time (including the applicable time zone) 
all estimated closing costs provided in the Loan Estimate will expire. 
Proposed comment 37(a)(13)-1 would have clarified that for purposes of 
proposed Sec.  1026.37(a)(13), a disclosed interest rate is set for a 
specific period of time even if subject to conditions set forth in the 
rate-lock agreement between the creditor and consumer. Proposed comment 
37(a)(13)-2 would have clarified that the information provided under 
proposed Sec.  1026.37(a)(13)(ii) related to estimated closing costs is 
required whether or not the transaction is consummated or the terms are 
otherwise not accepted or extended. Proposed comment 37(a)(13)-3 would 
have stated that all times provided in the disclosure must reference 
the applicable time zone and provided an example of an appropriate 
disclosure of the applicable time zone.
    A State trade association representing banks requested 
clarification regarding how to disclose an interest rate in the 
situation where a creditor has a policy to honor the rate quoted on the 
Loan Estimate but does not require the consumer to sign a rate lock 
agreement. Several national trade associations representing mortgage 
lenders commented that proposed comment 37(a)(13)-2 referred to an 
``expiration date'' but did not identify whether that expiration date 
related to the interest rate or the closing costs. Several varied types 
of commenters questioned the specific wording of the rate lock 
disclosure on form H-24 and suggested alternative language that the 
commenters believed to be more clear.
    Regarding the situation where the creditor has a policy to honor 
the rate quoted without a rate lock agreement, both proposed Sec.  
1026.37(a)(13) and comment 37(a)(13)-1 expressly contemplate a rate 
that is locked for a specific period of time pursuant to a rate lock 
agreement. Accordingly, where a creditor has a policy to honor the 
quoted rate, but does not lock the rate pursuant to a written agreement 
with the consumer, the creditor would disclose ``no'' pursuant to Sec.  
1026.37(a)(13)(i). The Bureau believes this disclosure is appropriate 
to aid the consumer's understanding of the transaction, because the 
creditor would not be bound by an agreement to provide the interest 
rate to the consumer at consummation.
    With respect to the suggested confusion over proposed comment 
37(a)(13)-2's reference to an expiration date, the Bureau notes that 
Sec.  1026.37(a)(13) states that the disclosure must state the date and 
time at which the ``estimated closing costs'' expire. The Bureau also 
notes that Sec.  1026.19(e)(3)(iv)(E) provides the closing costs 
disclosed on the Loan Estimate are not subject to the limitations on 
increases under Sec.  1026.19(e)(3), if the consumer does not express 
an intent to proceed within 10 business days after the disclosures are 
provided. The Bureau believes the statement as proposed provides 
consumers with enough information regarding the possibility that the 
estimated closing costs may not be available. Accordingly, the Bureau 
believes that the comment does not require revision to clarify that it 
refers to the expiration of the closing costs under Sec.  
1026.19(e)(3)(iv)(E).
    Regarding the rate lock disclosure on proposed form H-24, the 
proposed language would have stated: ``Before closing, your interest 
rate, points, and lender credits can change unless you

[[Page 79920]]

lock the interest rate. All other estimated closing costs expire on --
----'' As discussed above, the Bureau has tested the integrated 
disclosures extensively and that testing confirmed that consumers were 
able to understand and adequately use the information on page 1 of the 
Loan Estimate, including the disclosure required by Sec.  
1026.37(a)(13) as proposed. See Kleimann Testing Report at 195. 
Accordingly, because the Bureau continues to believe that disclosure of 
the rate lock period is critical to the consumer's ability to 
understand the transaction and avoid the uninformed use of credit, it 
is adopting Sec.  1026.37(a)(13) and comments 37(a)(13)-1 and -2 
substantially as proposed but with minor modifications to refer to an 
interest rate as locked instead of set, for consistency with form H-24 
of appendix H to Regulation Z. The Bureau is further modifying comments 
37(a)(13)-1 and -2 for clarity and is adopting comment 37(a)(13)-3 as 
proposed.
37(b) Loan Terms
    To shop for and understand the cost of credit, consumers must be 
able to identify and understand the key loan terms offered to them. As 
discussed below, the Bureau's research before the proposal informed the 
Bureau that the following are key loan terms that consumers recognize 
and expect to see on closed-end mortgage disclosures, together with 
their settlement charges: Loan amount; interest rate; periodic 
principal and interest payment; whether the loan amount, interest rate, 
or periodic payment can increase; and whether the loan has a prepayment 
penalty or balloon payment. See Macro 2009 Closed-End Report at 6.
    As discussed in the proposal, TILA requires the disclosure of some 
of these key loan terms, but not all. Notably, the loan amount and 
interest rate are currently not specifically required to be disclosed 
by TILA section 128. 15 U.S.C. 1638. Although Regulation Z currently 
requires the interest rate to be disclosed in the payment schedule 
required by Sec.  1026.18(s), it does not require the loan amount to be 
disclosed for non-HOEPA loans, and does not require a summary table 
identifying these key loan terms for closed-end credit secured by real 
property. 12 CFR 1026.18. For federally related mortgage loans, Sec.  
1024.7(d) of Regulation X currently requires the RESPA GFE to contain a 
table on page 1, labeled ``Summary of your loan terms,'' which contains 
the following information: (i) Initial loan amount; (ii) loan term; 
(iii) initial interest rate; (iv) initial monthly amount owed for 
principal, interest, and mortgage insurance; (v) whether the interest 
rate can rise, and if so, the maximum interest rate and the date of the 
first interest rate change; (vi) whether the loan balance can rise, and 
if so, the maximum loan balance; (vii) whether the monthly amount owed 
for principal, interest, and mortgage insurance can rise, and if so, 
the payment amount at the first change and the maximum payment; (viii) 
whether the loan has a prepayment penalty and the maximum prepayment 
penalty; and (xi) whether the loan has a balloon payment, the amount, 
and when it is due. 12 CFR 1024.7(d).
    Pursuant to its authority under TILA section 105(a), RESPA section 
19(a), and Dodd-Frank Act section 1032(a), the Bureau proposed to 
require creditors to provide the key loan terms described above in a 
summary table as part of the integrated Loan Estimate required by 
proposed Sec.  1026.19(e) for closed-end transactions secured by real 
property (other than reverse mortgages). As described in the proposal, 
at the Bureau's pre-proposal consumer testing, participants were able 
to use the summary table to identify and compare easily the key loan 
terms for different loans. The Bureau stated in the proposal its 
belief, based on its consumer testing, that a concise loan summary 
table will improve consumer understanding of the loan terms presented, 
such as an understanding of whether the consumer can afford the loan, 
will enable comparisons of different credit terms offered by the same 
or multiple creditors, and will enable consumers to verify information 
about the loan provided by the creditor orally or in some other form, 
such as a worksheet. The Bureau stated in the proposal that it believed 
this disclosure will effectuate the purposes of TILA by promoting the 
informed use of credit and assuring a meaningful disclosure to 
consumers, including more effective advance disclosure of settlement 
costs. Furthermore, the Bureau stated that, consistent with section 
1032(a) of the Dodd-Frank Act, this disclosure would ensure that the 
features of consumer credit transactions secured by real property are 
fully, accurately, and effectively disclosed to consumers in a manner 
that permits consumers to understand the costs, benefits, and risks 
associated with the product or service, in light of the facts and 
circumstances.
    The Bureau proposed Sec.  1026.37(b), which would have required a 
separate table that includes the information and follows the 
requirements specified in Sec.  1026.37(b)(1) through (8). As proposed, 
the table would have appeared under the heading ``Loan Terms'' to 
enhance visibility. The individual items of information in the table 
also would have been labeled to enhance visibility. The format would 
have provided consumers with a bold ``yes'' or ``no'' answer to the 
questions of whether the loan amount, interest rate, or periodic 
payment can increase, and whether the loan has a prepayment penalty or 
balloon payment. The Bureau stated in the proposal that it believed 
that the format of the Loan Terms table will help consumers quickly and 
easily identify their key loan terms.
    The Bureau proposed comment 37(b)-1 to provide additional guidance 
to creditors regarding the Loan Terms table. Comment 37(b)-1 would have 
clarified that the Loan Terms table should reflect the terms of the 
legal obligation that the consumer will enter into, based on 
information the creditor knows or reasonably should know. The Bureau 
did not receive any comments on proposed Sec.  1026.37(b) or comment 
37(b)-1. Because the Bureau continues to believe disclosing the key 
loan terms that the Bureau's research and consumer testing demonstrate 
are important to and used by consumers to evaluate and understand loan 
terms, it is adopting Sec.  1026.37(b) substantially as proposed but 
with minor modifications for clarity, based on the legal authority 
described in the proposal and above.
    Under Sec. Sec.  1026.37(o)(1)(ii) and 1026.38(t)(1)(ii), all 
disclosures under Sec. Sec.  1026.37 and 1026.38 are required to be 
made in the same order, and positioned relative to the master headings, 
headings, subheadings, labels, and similar designations in the same 
manner, as shown in forms H-24 and H-25, respectively. Further, under 
Sec. Sec.  1026.37(o)(3) and 1026.38(t)(3), form H-24 and form H-25, 
respectively, are required to be used for federally related mortgage 
loans. For example, because form H-24 contains the heading of the Loan 
Terms table required under Sec.  1026.37(b) in a black rounded tab (as 
form H-24 does for certain other headings required under Sec.  
1026.37), the black rounded tab on form H-24 is required to be used for 
the ``Loan Terms'' heading under Sec.  1026.37(o) for federally related 
mortgage loans. A tab that uses a white background with black font, or 
that does not use rounded corners as illustrated on form H-24 would not 
comply with Sec.  1026.37(b). As noted above, the heading is intended 
to enhance visibility of the Loan Terms table required under Sec.  
1026.37(b). The Bureau believes the enhanced visibility will aid 
consumer understanding of these key loan terms. Indeed, the Bureau's 
Quantitative Study concluded

[[Page 79921]]

that consumer participants who used the Bureau's integrated disclosures 
performed statistically significantly better than those who used the 
current disclosures with respect to the disclosure of the key loan 
terms in the Loan Terms table, including the loan amount, interest 
rate, and monthly payments. See Kleimann Quantitative Study Report at 
53-56. The Bureau is adopting comment 37(b)-1 substantially as proposed 
but with minor modifications for clarity. A discussion of the specific 
items included in the table follows.
37(b)(1) Loan Amount
    Neither TILA nor RESPA specifically requires the disclosure of the 
loan amount for the transaction. TILA section 128(a)(2) requires 
disclosure of the amount financed, of which the principal amount of the 
loan is the most significant component, but the section does not 
require a separate disclosure of the principal amount of the loan. 15 
U.S.C. 1638(a)(2). Regulation Z Sec.  1026.32(c)(5) currently requires 
the disclosure of the total amount the consumer will borrow, as 
reflected by the face amount of the note, for loans subject to HOEPA. 
For federally related mortgage loans under RESPA, Sec.  1024.7(d) of 
Regulation X currently requires the disclosure of the loan amount in 
the summary table on page 1 of the RESPA GFE with the text, ``Your 
initial loan amount is.''
    The Bureau stated its belief in the proposal, based on its consumer 
testing, that the loan amount is important to consumers to understand 
readily, compare, and verify the amount of credit offered to them. The 
Bureau further stated that the principal amount of the loan is a basic 
element of the transaction that should be disclosed to consumers. 
Pursuant to its authority under TILA section 105(a), Dodd-Frank Act 
section 1032(a), and RESPA section 19(a), the Bureau proposed to 
require a disclosure of the principal amount of the transaction for 
closed-end transactions secured by real property (other than reverse 
mortgages). The Bureau proposed this requirement to effectuate the 
purposes of TILA to promote the informed use of credit and ensure a 
meaningful disclosure of credit terms to consumers. In addition, 
consistent with section 1032(a) of the Dodd-Frank Act, the Bureau 
stated its belief in the proposal that the disclosure of the loan 
amount in the Loan Terms table may ensure that the features of consumer 
credit transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances. Further, 
the Bureau stated that, like HUD, it believed the loan amount is 
necessary to understanding the transaction and its disclosure would 
effectuate the purposes of RESPA.
    Proposed Sec.  1026.37(b)(1) would have required creditors to 
disclose the ``loan amount,'' which is defined as the amount of credit 
to be extended under the terms of the legal obligation. This disclosure 
would have been labeled ``Loan Amount'' to enhance visibility. The 
proposal stated that disclosing the loan amount may also alert the 
consumer to fees that are financed in addition to the amount of credit 
sought for the consumer's purchase, refinance, or other purpose. The 
Bureau did not receive any comments on proposed Sec.  1026.37(b)(1). 
Accordingly, because the Bureau continues to believe that disclosure of 
the loan amount will effectuate the purposes of both TILA and RESPA, it 
is adopting Sec.  1026.37(b)(1) as proposed, pursuant to the authority 
stated in the proposal and described above.
37(b)(2) Interest Rate
    TILA section 128(a)(3) and (4) requires disclosure of the finance 
charge and the annual percentage rate, for which the interest rate is a 
factor in the calculation. 15 U.S.C. 1638(a)(3), (4).\266\ However, the 
statute does not require a separate disclosure of the interest rate. 
Currently, Regulation Z requires creditors to disclose the interest 
rate only in the interest rate and payment summary table required by 
Sec.  1026.18(s). For federally related mortgage loans, Sec.  1024.7(d) 
of Regulation X requires that the RESPA GFE state the interest rate 
with the text ``your initial interest rate is'' in the summary table on 
page 1. The Bureau stated its belief in the proposal that the interest 
rate is an important loan term that consumers should be able to locate 
readily on the disclosure, because it is the basis for the periodic 
payments of principal and interest that the consumer will be obligated 
to make. The Bureau further stated in the proposal that participants in 
the Bureau's consumer testing used the interest rate as one of the 
primary factors when evaluating, comparing, and verifying loan terms.
---------------------------------------------------------------------------

    \266\ As discussed below, the finance charge disclosure is 
implemented in Sec.  1026.38(o)(2). The APR disclosure is 
implemented in Sec. Sec.  1026.37(l)(2) and 1026.38(o)(4).
---------------------------------------------------------------------------

    The Bureau proposed to use its authority under TILA section 105(a) 
to require disclosure of the interest rate for the transaction to 
effectuate the purposes of TILA to promote the informed use of credit 
and ensure a meaningful disclosure of credit terms to consumers. In 
addition, the Bureau stated that, consistent with section 1032(a) of 
the Dodd-Frank Act, the Bureau believes that the disclosure of the 
interest rate in the Loan Terms table may ensure that the features of 
consumer credit transactions secured by real property are fully, 
accurately, and effectively disclosed to consumers in a manner that 
permits consumers to understand the costs, benefits, and risks 
associated with the product or service, in light of the facts and 
circumstances. Further, like HUD, which required disclosure of the 
interest rate in its good faith estimate form, the Bureau proposed to 
use its authority under RESPA section 19(a) to require disclosure of 
the interest rate, because the interest rate is important to consumer 
understanding of the transaction. Proposed Sec.  1026.37(b)(2) would 
have required disclosure of the initial interest rate that will be 
applicable to the transaction, labeled the ``Interest Rate.'' The 
proposal also would have required that if the initial interest rate may 
adjust based on an index, the creditor must disclose the fully-indexed 
rate, which is defined within that paragraph. Proposed comment 
37(b)(2)-1 would have provided guidance regarding how to calculate the 
fully-indexed rate to be disclosed.
    The Bureau received many comments from industry seeking guidance on 
how to disclose the interest rate in an adjustable rate transaction in 
compliance with proposed Sec.  1026.37(b)(2). Several national trade 
associations representing mortgage lenders, a large bank, and a 
document preparation company submitted comments based on their 
understanding that the proposal would have required disclosure of the 
fully-indexed interest rate in all circumstances for adjustable rate 
transactions, even if the transactions included an introductory 
discounted interest rate. These commenters stated that such a 
disclosure would be confusing for the majority of consumers who receive 
discounted rates that are in effect at the time of consummation. A 
national trade association representing banks requested guidance on how 
to disclose transactions without simple interest rates, such as 
precomputed rates, add-on interest rates, discount rates and even split 
interest rates (where the interest rates are precomputed based on 
different rates applying to different

[[Page 79922]]

portions of the precomputed loan amount). A community bank from 
Oklahoma commented that the label ``interest rate'' may be confusing 
because people in that State typically refer to it as the ``note 
rate.''
    With respect to the commenters that believed the proposal would 
have required disclosure of the fully-indexed rate in all 
circumstances, the Bureau did not intend to require disclosure of the 
fully-indexed rate in all circumstances. The Bureau notes that the 
language in proposed Sec.  1026.37(b)(2) requiring disclosure of the 
``initial interest rate'' is identical to that in the existing RESPA 
GFE instructions in Regulation X. See 12 CFR part 1024, app. C. The 
Bureau's intent in the proposal was to require disclosure of the fully-
indexed rate only if the initial interest rate may adjust based on an 
index. In other words, the intent of proposed Sec.  1026.37(b)(2) was 
to require disclosure of the fully-indexed rate where the initial rate 
at consummation was not known at the time of the disclosure because it 
depended on an external index, i.e., where there was no introductory 
rate period. The Bureau recognizes, however, that the intent of 
proposed Sec.  1026.37(b)(2) was unclear to the commenters and is 
making modifications to it in this final rule to conform to the 
language of current Sec.  1026.18(s) for the requirement to disclose 
the interest rate, rather than current Regulation X.
    With respect to precomputed rates, as clarified by revised final 
Sec.  1026.37(b)(2), the interest disclosed in that circumstance would 
be the interest rate at consummation, which would be known as a 
function of the note. Section 1026.37(b)(2) requires disclosure of the 
interest rate at consummation and thus, if multiple interest rates 
applied to different portions of a loan's principal balance in a 
precomputed transaction, the disclosure required would be the one 
interest rate that is a composite of the different interest rates 
applicable to the transaction, based on the portions of the amount to 
which each interest rate applies. To the extent that the rate may 
change after consummation, the required disclosures are set forth in 
Sec.  1026.37(b)(6)(ii), discussed below. With respect to the 
commenter's suggestion to change the label to ``note rate,'' as 
discussed above, the Bureau conducted extensive consumer testing of the 
integrated disclosures in many different locations throughout the 
country and there was no evidence that consumers, in any region, were 
confused by the label ``interest rate.'' Accordingly, the Bureau is 
adopting that label as proposed in Sec.  1026.37(b)(2).
    The Bureau is further adopting Sec.  1026.37(b)(2) and comment 
37(b)(2)-1 with modifications to provide clarity regarding the interest 
rate disclosure where the initial interest rate may not be known. 
Section 1026.37(b)(2) as revised requires disclosure of the interest 
rate at consummation, rather than the initial interest rate, to clarify 
that the date of consummation is the relevant one for purposes of the 
disclosure. The Bureau is further revising the second sentence of Sec.  
1026.37(b)(2) to provide that the fully-indexed rate shall be disclosed 
only when the interest rate at consummation is not known. The Bureau 
notes that this may be the case for adjustable rate loans that do not 
include an introductory discounted interest rate. Final Sec.  
1026.37(b)(2) also states that the fully-indexed rate means the 
interest rate calculated using the index value and margin at the time 
of consummation. The Bureau is further revising proposed comment 
37(b)(2)-1 to clarify that the fully-indexed rate need not be disclosed 
if the contract provides for a delay in the implementation of changes 
in an index value, in which case any index during the delay period 
(lookback period) may be used.
37(b)(3) Principal and Interest Payment
    TILA section 128(a)(6) requires disclosure of the number, amount, 
and due dates or period of payments scheduled to repay the loan. 15 
U.S.C. 1638(a)(6). TILA section 128(b)(2)(C)(ii) requires the maximum 
principal and interest payment and examples of other potential 
principal and interest payments to be disclosed when the ``annual rate 
of interest is variable . . . or the regular payments may otherwise be 
variable.'' 15 U.S.C. 1638(b)(2)(C)(ii). Currently, for closed-end 
transactions secured by real property or a dwelling, Regulation Z 
requires creditors to disclose the periodic principal and interest 
payment only in the interest rate and payment summary table required by 
Sec.  1026.18(s). For federally related mortgage loans, Sec.  1024.7(d) 
of Regulation X requires the RESPA GFE to contain the initial periodic 
payment for principal and interest and mortgage insurance with the text 
``Your initial monthly amount owed for principal, interest, and any 
mortgage insurance is.''
    The Bureau stated its belief in the proposal that, like the 
interest rate, the periodic principal and interest payment is a key 
loan term that consumers should be able to locate readily on the form. 
As described in the proposal, the Bureau's consumer testing indicated 
that consumers use the periodic principal and interest payment of the 
loan as a primary factor in evaluating and comparing a loan. The Bureau 
stated its belief that a specific disclosure of the periodic principal 
and interest payment in the Loan Terms table will assist consumers in 
readily evaluating, comparing, and verifying possible loan terms. As 
stated in the proposal, the Bureau believed that disclosing this 
payment would enable consumers to compare loans of one or multiple 
creditors based on the same measure, rather than a payment that may 
include estimates for escrow payments for property costs or mortgage 
insurance. The Bureau proposed Sec.  1026.37(b)(3) to require the Loan 
Terms table to include the periodic principal and interest payment 
simply labeled ``Principal & Interest,'' with an indication of the 
applicable unit-period. Under proposed Sec.  1026.37(b)(3), if the 
initial periodic payment may adjust based on changes to an index, the 
payment disclosed would have been required to be based on the fully-
indexed rate disclosed under proposed Sec.  1026.37(b)(2). The proposal 
noted that the unit-period that is applicable to a transaction is 
currently described in appendix J to Regulation Z. Proposed comment 
37(b)(3)-1 would have clarified that the label of the periodic 
principal and interest payment should reflect the appropriate unit-
period for the transaction. Proposed comment 37(b)(3)-2 would have 
provided guidance regarding how to calculate the payment to be 
disclosed if the initial interest rate is adjustable based on an index.
    The Bureau stated its belief in the proposal that the total 
periodic payment the consumer would be responsible to make to the 
creditor, including any required mortgage insurance and escrow 
payments, is also important for the consumer to consider when 
evaluating a loan offer. The Bureau believed that this amount allows a 
consumer to determine the affordability of the credit transaction and 
underlying real estate transaction. Accordingly, the Bureau proposed to 
include with the principal and interest payment a statement referring 
the consumer to the total periodic payment, including estimated amounts 
for any escrow and mortgage insurance payments, which is disclosed in 
the Projected Payments table under proposed Sec.  1026.37(c), 
immediately below the Loan Terms table.
    The Bureau proposed to use its authority under TILA section 105(a) 
to require disclosure of the periodic principal and interest payment, 
along with a reference to the total periodic payment, in the Loan Terms 
table to

[[Page 79923]]

effectuate the purposes of TILA to promote the informed use of credit 
and ensure a meaningful disclosure of credit terms to consumers. In 
addition, consistent with section 1032(a) of the Dodd-Frank Act, the 
Bureau stated its belief in the proposal that this disclosure may 
ensure that the features of consumer credit transactions secured by 
real property are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to understand the costs, 
benefits, and risks associated with the product or service, in light of 
the facts and circumstances. Further, the Bureau proposed to use its 
authority under RESPA section 19(a) to require this disclosure because 
the disclosure will improve consumer understanding of the transaction, 
including settlement costs. The Bureau also proposed this requirement 
pursuant to its authority under section 1405(b) of the Dodd-Frank Act. 
The Bureau stated its belief in the proposal that this disclosure may 
improve consumer awareness and understanding of transactions involving 
residential mortgage loans through the use of disclosures, and is in 
the interest of consumers and in the public interest.
    Several different industry commenters, including a large bank, a 
non-depository lender, and a national trade association representing 
mortgage lenders commented that the Loan Terms and Projected Payments 
table required by Sec.  1026.37(c) should be either combined or 
rearranged in some manner. The commenters believed that consumers would 
find it confusing for the ``principal and interest'' disclosure in the 
Loan Terms table to be separated from the ``mortgage insurance'' and 
``estimated escrow'' disclosures in the Projected Payments table. In 
addition, a GSE commented that the reference to the ``Total Monthly 
Payment'' disclosed under Sec.  1026.37(c) as illustrated by form H-24 
should instead use the same term that is used in form H-24 in the table 
required by Sec.  1026.37(c), ``Estimated Total Monthly Payment.''
    The Bureau does not believe that consumers will be confused by the 
Loan Terms table as proposed. The ``monthly principal and interest'' 
disclosure is repeated in the Projected Payments table and the 
disclosure requires a statement that refers the consumer to that table 
to find the total monthly payment. Indeed, as described above, the 
Bureau conducted extensive consumer testing of the integrated 
disclosures, both before and after the proposal. Consumers at the 
Bureau's testing were able to understand both the Loan Terms and 
Projected Payments tables. See Kleimann Testing Report at 282. However, 
the Bureau believes that modifying the term in the reference statement 
illustrated in form H-24 to use the same term as in the Projected 
Payments table will increase consistency within the form, and thus, has 
determined to modify form H-24 accordingly. In addition, to increase 
readability of the reference statement, the Bureau has modified the 
statement to use a sentence capitalization structure. The Bureau tested 
these modifications to the Loan Estimate with consumers in its post-
proposal quantitative testing and found that consumers were better able 
to understand their monthly payments using the proposed Loan Estimate 
than using the current disclosures. See Kleimann Quantitative Study 
Report at 55.
    Accordingly, the Bureau is adopting Sec.  1026.37(b)(3) and comment 
37(b)(3)-2 with conforming changes to correspond to Sec.  1026.37(b)(2) 
as finalized based on the authority stated in the proposal and above. 
The Bureau is revising Sec.  1026.37(b)(3) and comment 37(b)(3)-2 to 
clarify that disclosure of the principal and interest payment should be 
based on the fully-indexed interest rate only where the interest rate 
at consummation is not known, for example, when it is based on an 
external index. Comment 37(b)-1 is adopted substantially as proposed 
but with a minor modification for clarity. The Bureau is modifying the 
reference statement as illustrated by form H-24 of appendix H to 
Regulation Z, which is discussed in more detail in section-by-section 
analysis of appendix H below.
37(b)(4) Prepayment Penalty
    Currently, TILA section 128(a)(11), 15 U.S.C. 1638(a)(11), and 
Regulation Z Sec.  1026.18(k)(1) require the creditor to disclose 
whether or not a penalty may be imposed if the obligation is prepaid in 
full for a transaction that includes a finance charge computed from 
time to time by application of a rate to the unpaid principal balance. 
For federally related mortgage loans, Sec.  1024.7(d) of Regulation X 
requires the summary table on page 1 of the RESPA GFE to state whether 
or not the loan has a prepayment penalty with the text, ``Does your 
loan have a prepayment penalty?''
    The Bureau stated in the proposal that its consumer testing 
indicates that consumers use the existence of a prepayment penalty as 
an important factor in understanding and evaluating loan offers. 
Accordingly, because of the importance of prepayment penalties to 
consumers, proposed Sec.  1026.37(b)(4) would have required disclosure 
of whether the loan has a prepayment penalty in the Loan Terms table, 
labeled ``Prepayment Penalty.'' As discussed below, under proposed 
Sec.  1026.37(b)(7), the existence or non-existence of a prepayment 
penalty provision in the loan contract would be indicated by an 
affirmative or negative answer (designed as a simple ``yes'' or ``no'') 
to the question, ``Does the loan have these features?'' As described in 
the proposal, in the Bureau's consumer testing, consumers were able to 
use this disclosure to determine easily if the loan had a prepayment 
penalty.
    The Bureau proposed to require disclosure of whether the 
transaction includes a prepayment penalty under TILA section 
128(a)(11), its implementation authority under TILA section 105(a), and 
RESPA section 19(a). The Bureau believed, as stated in the proposal, 
that this additional information would promote consumer understanding 
of the cost of credit and more effective disclosure of the terms of the 
credit.
Definition of Prepayment Penalty
    TILA establishes certain disclosure requirements for transactions 
for which a penalty is imposed upon prepayment, but does not define the 
term ``prepayment penalty.'' TILA section 128(a)(11) requires that the 
transaction-specific disclosures for closed-end consumer credit 
transactions disclose whether (1) a consumer is entitled to a rebate of 
any finance charge upon refinancing or prepayment in full pursuant to 
acceleration or otherwise, if the obligation involves a precomputed 
finance charge, and (2) a ``penalty'' is imposed upon prepayment in 
full if the obligation involves a finance charge computed from time to 
time by application of a rate to the unpaid principal balance. 15 
U.S.C. 1638(a)(11). Also, TILA section 128(a)(12) requires that the 
transaction-specific disclosures state that the consumer should refer 
to the appropriate contract document for information regarding certain 
loan terms or features, including ``prepayment rebates and penalties.'' 
15 U.S.C. 1638(a)(12).
    Current Sec.  1026.18(k) implements (and largely mirrors) TILA 
section 128(a)(11). Section 1026.18(k)(1) provides that ``when an 
obligation includes a finance charge computed from time to time by 
application of a rate to the unpaid principal balance,'' the creditor 
must disclose ``a statement indicating whether or not a penalty may be 
imposed if the obligation is prepaid in full.'' Comment 18(k)(1)-1 
clarifies that such a ``penalty'' includes, for example, ``interest 
charges for any period after prepayment in full is made'' and a minimum 
finance charge, but does not

[[Page 79924]]

include, for example, loan guarantee fees. Section 1026.18(k)(2) 
provides for the disclosure of a statement indicating whether or not 
the consumer is entitled to a rebate of any finance charge if the 
obligation is prepaid in full when an obligation includes a finance 
charge other than the finance charge described in Sec.  1026.18(k)(1). 
Comment 18(k)(2)-1 clarifies that Sec.  1026.18(k)(2) applies to any 
finance charges that do not take account of each reduction in the 
principal balance of an obligation, such as recomputed finance charges 
and charges that take account of some but not all reductions in 
principal.
    In addition, TILA section 129(c)(1) limits the circumstances in 
which a high-cost mortgage may include a prepayment penalty where the 
consumer pays all or part of the principal before the date on which the 
principal is due. 15 U.S.C. 1639(c)(1)(A). In the high-cost mortgage 
context, any method of computing a refund of unearned scheduled 
interest is a prepayment penalty if it is less favorable than the 
actuarial method, as defined by section 933(d) of the Housing and 
Community Development Act of 1992. 15 U.S.C. 1639(c)(1)(B). Section 
1026.32(d)(6) implements these TILA provisions.
    As described in the proposal, although the disclosure requirements 
under current Sec.  1026.18(k) apply to closed-end mortgage and non-
mortgage transactions, in its 2009 Closed-End Proposal, the Board 
proposed to establish a new Sec.  226.38(a)(5) for disclosure of 
prepayment penalties for closed-end mortgage transactions. See 74 FR 
43334, 43413. In proposed comment 38(a)(5)-2, the Board stated that 
examples of prepayment penalties include charges determined by treating 
the loan balance as outstanding for a period after prepayment in full 
and applying the interest rate to such ``balance,'' a minimum finance 
charge in a simple-interest transaction, and charges that a creditor 
waives unless the consumer prepays the obligation. 74 FR 43413. In 
addition, the Board's proposed comment 38(a)(5)-3 listed loan guarantee 
fees and fees imposed for preparing a payoff statement or other 
documents in connection with the prepayment as examples of charges that 
are not prepayment penalties. Id. The Board's 2010 Mortgage Proposal 
included amendments to existing comment 18(k)(1)-1 and proposed comment 
38(a)(5)-2 stating that prepayment penalties include ``interest'' 
charges after prepayment in full even if the charge results from 
interest accrual amortization used for other payments in the 
transaction. See 75 FR 58756, 58781.\267\
---------------------------------------------------------------------------

    \267\ The preamble to the Board's 2010 Mortgage Proposal 
explained that the proposed revisions to current Regulation Z 
commentary and the proposed comment 38(a)(5) from the Board's 2009 
Closed-End Proposal regarding interest accrual amortization were in 
response to concerns about the application of prepayment penalties 
to certain FHA and other loans (i.e., when a consumer prepays an FHA 
loan in full, the consumer must pay interest through the end of the 
month in which prepayment is made). See 75 FR 58586.
---------------------------------------------------------------------------

    The Bureau noted in the proposal that prepayment penalties were 
also addressed in the Board's 2011 ATR Proposal implementing sections 
1411, 1412, and 1414 of the Dodd-Frank Act (codified at 15 U.S.C. 
1629c), which expand the scope of the ability-to-repay requirement 
under TILA and establish ``qualified mortgage'' standards for complying 
with such requirement. See 76 FR 27482, 27491. Specifically, the 
Board's proposed Sec.  226.43(b)(10) generally followed the current 
Regulation Z guidance on prepayment penalties (i.e., comment 18(k)(1)-
1) and the proposed definitions and guidance in the Board's 2009 
Closed-End Proposal and 2010 Mortgage Proposal. However, the Board's 
2011 ATR Proposal differed from the prior proposals and current 
guidance in the following respects: (1) proposed Sec.  226.43(b)(10) 
defined prepayment penalty with reference to a payment of ``all or part 
of'' the principal in a transaction covered by the provision, while 
Sec.  1026.18(k) and associated commentary and the Board's 2009 Closed-
End Proposal and 2010 Mortgage Proposal referred to payment ``in 
full,'' (2) the examples provided omitted reference to a minimum 
finance charge and loan guarantee fees,\268\ and (3) proposed Sec.  
226.43(b)(10) did not incorporate, and the Board's 2011 ATR Proposal 
did not otherwise address, the language in Sec.  1026.18(k)(2) and 
associated commentary regarding disclosure of a rebate of a precomputed 
finance charge, or the language in Sec.  1026.32(b)(6) and associated 
commentary concerning prepayment penalties for high-cost mortgages.
---------------------------------------------------------------------------

    \268\ The preamble to the Board's 2011 ATR Proposal addressed 
why the Board chose to omit these two items. The Board reasoned that 
a minimum finance charge need not be included as an example of a 
prepayment penalty because such a charge typically is imposed with 
open-end, rather than closed-end, transactions. The Board stated 
that loan guarantee fees are not prepayment penalties because they 
are not charges imposed for paying all or part of a loan's principal 
before the date on which the principal is due. See 76 FR 27416.
---------------------------------------------------------------------------

    Based on the Bureau's consideration of the existing statutory and 
regulatory definitions of ``penalty'' and ``prepayment penalty'' under 
TILA sections 128(a) and 129(c) and Sec. Sec.  1026.18(k) and 
1026.32(d)(6), the Board's proposed definitions of prepayment penalty, 
and the Bureau's authority under TILA section 105(a) and Dodd-Frank Act 
sections 1032(a) and, for residential mortgage transactions, 1405(b), 
the Bureau proposed to define ``prepayment penalty'' in Sec.  
1026.37(b)(4) for transactions subject to Sec.  1026.19(e) and (f) as a 
charge imposed for paying all or part of a transaction's principal 
before the date on which the principal is due. The proposed definition 
of prepayment penalty, as applicable to the transactions subject to 
Sec.  1026.19(e) and (f), would have broadened the existing statutory 
and regulatory definitions under TILA section 128(a)(11) and Sec.  
1026.18(k), and thereby may result in more frequent disclosures of 
prepayment penalties to consumers than would be made under the existing 
definitions. Therefore, the Bureau stated its belief in the proposal 
that the disclosures of prepayment penalties under proposed Sec.  
1026.37(b)(4) will effectuate the purposes of TILA and RESPA by 
facilitating the informed use of credit and more effective advance 
disclosure of settlement costs. In addition, the Bureau stated that it 
believed the revised disclosures will ensure that the features of 
mortgage loan products initially and over their terms are fully, 
accurately, and effectively disclosed to consumers in a manner that 
permits consumers to understand the costs, benefits, and risks 
associated with the loan products in light of the facts and 
circumstances, consistent with Dodd-Frank Act section 1032(a). 
Furthermore, the Bureau stated its belief in the proposal that these 
disclosures will improve consumers' awareness and understanding of 
residential mortgage transactions, which is in the interest of 
consumers and the public, consistent with Dodd-Frank Act section 
1405(b).
    The definition of prepayment penalty in proposed Sec.  
1026.37(b)(4) and associated commentary substantially would have 
incorporated the definitions of and guidance on prepayment penalty from 
the Board's 2009 Closed-End Proposal, 2010 Mortgage Proposal, and 2011 
ATR Proposal and, as necessary, reconciled their differences. For 
example, the Bureau proposed that the prepayment penalty definition in 
proposed Sec.  1026.37(b)(4) refer to payment of ``all or part of a 
covered transaction's principal,'' rather than merely payment ``in 
full,'' because it believed that knowledge of whether a partial 
prepayment triggers a penalty is important for consumers. Also, the 
Bureau proposed to incorporate the language from the Board's 2009 
Closed-

[[Page 79925]]

End Proposal and 2010 Mortgage Proposal but omitted in the Board's 2011 
ATR Proposal listing a minimum finance charge as an example of a 
prepayment penalty and stating that loan guarantee fees are not 
prepayment penalties, because similar language is found in longstanding 
Regulation Z commentary.
    Proposed comment 37(b)(4)-1 would have clarified that the 
disclosure of the prepayment penalty under Sec.  1026.37(b)(4) applies 
to transactions where the terms of the loan contract provide for a 
prepayment penalty, even though it is not certain at the time of the 
disclosure whether the consumer will, in fact, make a payment to the 
creditor that would cause imposition of the penalty. This proposed 
comment also would have clarified that if the transaction includes a 
prepayment penalty, proposed Sec.  1026.37(b)(7) sets forth the 
information that must be disclosed under proposed Sec.  1026.37(b)(4). 
Proposed comment 37(b)(4)-2.i through -2.iv would have given the 
following examples of prepayment penalties: (1) A charge determined by 
treating the loan balance as outstanding for a period of time after 
prepayment in full and applying the interest rate to such ``balance,'' 
even if the charge results from interest accrual amortization used for 
other payments in the transaction under the terms of the loan contract; 
(2) a fee, such as an origination or other loan closing cost, that is 
waived by the creditor on the condition that the consumer does not 
prepay the loan; (3) a minimum finance charge in a simple interest 
transaction; and (4) computing a refund of unearned interest by a 
method that is less favorable to the consumer than the actuarial 
method, as defined by section 933(d) of the Housing and Community 
Development Act of 1992, 15 U.S.C. 1615(d). Proposed comment 37(b)(4)-
2.i would have further clarified that ``interest accrual amortization'' 
refers to the method by which the amount of interest due for each 
period (e.g., month) in a transaction's term is determined and notes, 
for example, that ``monthly interest accrual amortization'' treats each 
payment as made on the scheduled, monthly due date even if it is 
actually paid early or late (until the expiration of any grace period). 
The proposed comment also would have provided an example where a 
prepayment penalty of $1,000 is imposed because a full month's interest 
of $3,000 is charged even though only $2,000 in interest was earned in 
the month during which the consumer prepaid.
    Proposed comment 37(b)(4)-3 would have clarified that a prepayment 
penalty does not include: (1) Fees imposed for preparing and providing 
documents when a loan is paid in full, whether or not the loan is 
prepaid, such as a loan payoff statement, a reconveyance document, or 
another document releasing the creditor's security interest in the 
dwelling that secures the loan; or (2) loan guarantee fees. Proposed 
comment 37(b)(4)-4 would have clarified that, with respect to an 
obligation that includes a finance charge that does not take into 
account each reduction in the principal balance of the obligation 
(e.g., precomputed finance charges), Sec.  1026.37(b)(4) requires 
disclosure of whether or not the consumer is entitled to a rebate of 
any finance charge if the obligation is prepaid in full or part. The 
comment further would have clarified that if the transaction involves 
both a precomputed finance charge and a finance charge computed by 
application of a rate to an unpaid balance, disclosures about both the 
prepayment rebate and the prepayment penalty are made under Sec.  
1026.37(b)(4) as one disclosure to the question required by proposed 
Sec.  1026.37(b)(7). The comment would have provided the example that, 
if in such a transaction, a portion of the precomputed finance charge 
will not be provided as a rebate and also a prepayment penalty based on 
the amount prepaid is provided for by the loan contract, both 
disclosures are made under proposed Sec.  1026.37(b)(4) as one 
aggregate amount, stating the maximum amount and time period under 
proposed Sec.  1026.37(b)(7). The comment would have further clarified 
that if the transaction instead provides a rebate of the precomputed 
finance charge upon prepayment, but imposes a prepayment penalty based 
on the amount prepaid, the disclosure that would have been required by 
proposed Sec.  1026.37(b)(4) is an affirmative answer and the 
information required by proposed Sec.  1026.37(b)(7). This proposed 
comment would have incorporated existing guidance in Regulation Z 
commentary regarding disclosure of whether the consumer is entitled to 
a rebate of finance charges that do not take into account each 
reduction in principal balance. See comments 18(k)-2 and -3 and 
18(k)(2)-1. The Bureau also proposed comment 37(b)(4)-5, which would 
have referenced comment 18(k)-1 for additional guidance on prepayment 
penalties.
    In the proposal, the Bureau stated its expectation to coordinate 
the definition of prepayment penalty in proposed Sec.  1026.37(b)(4) 
with the definitions in the Bureau's other pending rulemakings mandated 
by the Dodd-Frank Act concerning ability-to-repay, high-cost mortgages 
under HOEPA, and mortgage servicing. Since the proposal, the Bureau has 
finalized each of those rulemakings and the 2013 ATR Final Rule 
included a definition of prepayment penalty for closed-end transactions 
which was cross-referenced by the 2013 HOEPA Final Rule and the 2013 
TILA Mortgage Servicing Final Rule. The Bureau stated its belief in the 
proposal that, to the extent consistent with consumer protection 
objectives, adopting a consistent definition of ``prepayment penalty'' 
across its various pending rulemakings affecting closed-end mortgages 
will facilitate compliance.
    The definition of prepayment penalty as finalized in the 2013 ATR 
Final Rule is substantially similar to the definition proposed in the 
Board's 2011 ATR proposal and thus to the one proposed in the TILA-
RESPA Proposal as Sec.  1026.37(b)(4). That definition, adopted as 
Sec.  1026.32(b)(6)(i) is:

    For a closed-end credit transaction, prepayment penalty means a 
charge imposed for paying all or part of the transaction's principal 
before the date on which the principal is due, other than a waived, 
bona fide third-party charge that the creditor imposes if the 
consumer prepays all of the transaction's principal sooner than 36 
months after consummation, provided, however, that interest charged 
consistent with the monthly interest accrual amortization method is 
not a prepayment penalty for extensions of credit insured by the 
Federal Housing Administration that are consummated before January 
21, 2015.

    There are two significant differences between the definition 
proposed in Sec.  1026.37(b)(4) and the one adopted in the 2013 ATR 
Final Rule. First, the ATR Final Rule definition excludes a bona fide 
third-party charge that the creditor imposes if the consumer prepays 
all of the transaction's principal sooner than 36 months after 
consummation. This clause was intended to permit creditors to grant 
consumers conditional fee waivers at closing that the creditors could 
recoup if the consumer repaid the loan in full early. 78 FR 6407, 6444 
(Jan. 30, 2013). The 2013 ATR Final Rule included this clause after 
receiving comments from industry, particularly credit unions, arguing 
that conditional fee waivers benefitted consumers and that creditors 
should be able to recoup them upon a consumer's prepayment to 
compensate for fixed costs associated with originating the loan 
transaction. Id. The Bureau received similar comments from industry 
regarding the definition of

[[Page 79926]]

prepayment penalty in proposed Sec.  1026.37(b)(4).
    The second difference in the definition of prepayment penalty 
adopted by the 2013 ATR Final Rule is the exclusion of interest charged 
consistent with the monthly interest accrual amortization method for 
extensions of credit insured by the FHA that are consummated before 
January 21, 2015. That clause was intended to address industry comments 
noting that credit insured by the FHA treats the loan balance as 
outstanding for a period of time after prepayment in full and would 
always meet the proposed definition of prepayment penalty. 78 FR 6407, 
6445 (Jan. 30, 2013). The 2013 ATR definition of prepayment penalty in 
Sec.  1026.32(b)(6)(i) excludes FHA loans consummated before January 
21, 2015, based on HUD's representations to the Bureau that HUD will 
engage in rulemaking to end its practice of imposing interest charges 
on consumers for the balance of the month in which consumers prepay in 
full by that date. Id. The Bureau also received comments from industry 
regarding the fact that the definition of prepayment penalty in 
proposed Sec.  1026.37(b)(4) would apply to all FHA loans.
    In accordance with the Bureau's intent, as stated in the proposal, 
to coordinate the definition of prepayment penalty for the integrated 
disclosures with other Bureau rulemakings, and in light of the fact 
that the definition of prepayment penalty adopted by the 2013 ATR Final 
Rule addresses comments also received in response to the definition 
proposed in Sec.  1026.37(b)(4), the Bureau is revising Sec.  
1026.37(b)(4) to conform to the definition of prepayment penalty in 
Sec.  1026.32(b)(6)(i), as amended by the 2013 ATR Final Rule. The 
Bureau is adopting revised Sec.  1026.37(b)(4) pursuant to the legal 
authority described above and in the proposal. Revised Sec.  
1026.37(b)(4) provides that a prepayment penalty is a charge imposed 
for paying all or part of a transaction's principal before the date on 
which the principal is due, other than a waived, bona fide third-party 
charge that the creditor imposes if the consumer prepays all of the 
transaction's principal sooner than 36 months after consummation. The 
Bureau is also revising comment 37(b)(4)-2.ii to similar effect. The 
Bureau is not including in revised Sec.  1026.37(b)(4), however, the 
exclusion in Sec.  1026.32(b)(6) for FHA loans in which interest 
charges are imposed on consumers for the balance of the month in which 
consumers prepay in full. This final rule must be implemented by August 
1, 2015, which is after the January 21, 2015 date by which HUD has 
stated it will amend its rules related to this practice. Accordingly, 
the Bureau expects that by the time Sec.  1026.37(b)(4) is effective 
(see part VI above for a discussion of the effective date of this 
rulemaking), FHA loans will no longer meet the definition of prepayment 
penalty as a matter of course. To the extent that HUD's rulemaking 
plans change, the Bureau will revisit Sec.  1026.37(b)(4).
    One industry commenter requested guidance on whether the definition 
of prepayment penalty includes monthly interest due when a loan is paid 
off. Another industry commenter objected to the Bureau's inclusion of a 
minimum finance charge in a simple interest transaction in proposed 
comment 37(b)(4)-2.iii because such charges are ``soft charges'' that 
reflect the cost of doing business. With respect to monthly interest 
due when a loan is paid off, interest charges already due under the 
terms of the legal obligation, as long as not applied to any principal 
after the consumer's prepayment, would not meet the definition of 
prepayment penalty in Sec.  1026.37(b)(4), as adopted. Regarding ``soft 
charges,'' the Bureau is not persuaded that because such a charge is a 
``cost of doing business,'' it should not be disclosed as a prepayment 
penalty.
    The Bureau did not receive any comments regarding proposed comments 
37(b)(4)-1 through 5 and is adopting them substantially as proposed, 
except that the Bureau is making minor modifications to comments 
37(b)(4)-1 and -4 for clarity and is revising comment 37(b)(4)-2.ii to 
provide that the term prepayment penalty does not include a waived bona 
fide third-party charge imposed by the creditor if the consumer pays 
all of a covered transaction's principal before the date on which the 
principal is due sooner than 36 months after consummation, in 
accordance with revised Sec.  1026.37(b)(4). Similarly, in order to 
coordinate the definition of prepayment penalty in this final rule with 
other Bureau rulemakings for the reasons discussed above, the Bureau is 
revising comment 37(b)(4)-3 non-substantively only to conform it to 
comment 1026.32(b)(6)-2 as finalized in the 2013 ATR Final Rule. The 
Bureau sought comment in the proposal on whether a minimum finance 
charge should be listed as an example of a prepayment penalty and 
whether loan guarantee fees should be excluded from the definition of 
prepayment penalty. The Bureau did not receive any comments regarding 
loan guarantee fees. As an additional part of this effort to adopt a 
consistent regulatory definition of ``prepayment penalty,'' the Bureau 
is also adopting certain conforming revisions to Sec.  1026.18(k) and 
associated commentary, as discussed earlier in the section-by-section 
analysis of the revised Sec.  1026.18(k).
    For the reasons stated and based on the legal authority discussed 
above and in the proposal, the Bureau is adopting Sec.  1026.37(b)(4) 
as revised. For the reasons stated above, the Bureau is further 
revising comments 37(b)(4)-1, -2.ii, -3 and -4. The Bureau is adopting 
comments 37(b)(4)-2.i, -2.iii, and -2.iv as proposed.
37(b)(5) Balloon Payment
    TILA section 128(a)(6) requires disclosure of the number, amount, 
and due dates or period of payments scheduled to repay the loan. 
Currently, for closed-end transactions secured by real property or a 
dwelling, Regulation Z requires balloon payments to be disclosed only 
in connection with the interest rate and payment summary table required 
by Sec.  1026.18(s). For federally related mortgage loans, Sec.  
1024.7(d) of Regulation X requires the RESPA GFE to state in the 
summary table on page 1 whether or not the loan has a balloon payment 
with the text, ``Does your loan have a balloon payment?''
    Pursuant to its authority under TILA section 128(a)(6), TILA 
section 105(a), RESPA section 19(a), and Dodd-Frank Act section 
1032(a), the Bureau proposed Sec.  1026.37(b)(5), which would have 
required disclosure of whether the credit transaction requires a 
balloon payment, as defined within the provision. This disclosure would 
have been provided in the Loan Terms table, labeled ``Balloon 
Payment.'' As discussed below, under proposed Sec.  1026.37(b)(7), the 
existence or non-existence of a balloon payment provision is indicated 
by a ``yes'' or ``no'' answer to the question, ``Does the loan have 
these features?'' In the proposal, the Bureau stated that in its 
consumer testing, consumers were able to determine readily whether a 
loan had a balloon payment. The Bureau's consumer testing further 
indicated that consumers consider whether a loan has a balloon payment 
to be an important factor in evaluating loans. The Bureau stated its 
belief in the proposal that this disclosure will effectuate the 
purposes of TILA and RESPA because it will promote the informed use of 
credit and assure a meaningful disclosure to consumers, and thus, will 
benefit consumers and the public and result in more effective advance 
disclosure.

[[Page 79927]]

Definition of Balloon Payment
    Sections 1412 and 1432(b) of the Dodd-Frank Act both define 
``balloon payment'' as ``a scheduled payment that is more than twice as 
large as the average of earlier scheduled payments.'' These definitions 
are incorporated into TILA sections 129C(b)(2)(A)(ii) and 129(e), 
respectively. 15 U.S.C. 1639c(b)(2)(A)(ii), 1639(e). Regulation Z Sec.  
1026.18(s)(5)(i), however, defines ``balloon payment'' as ``a payment 
that is more than two times a regular periodic payment.''
    The Board's 2011 ATR Proposal implementing section 1412 of the 
Dodd-Frank Act incorporates Regulation Z's existing definition of 
``balloon payment'' in Sec.  1026.18(s)(5)(i) rather than the 
definition in section 1412. See proposed Sec.  226.43(e)(2)(i)(C), 76 
FR 27390, 27484. The Board noted that this definition is substantially 
similar to the statutory one, except that it uses as its benchmark any 
regular periodic payment rather than the average of earlier scheduled 
payments. 76 FR 27455. The Board also reasoned that incorporating the 
Regulation Z, rather than Dodd-Frank Act, definition of ``balloon 
payment'' facilitates compliance by affording creditors a single 
definition of the term within Regulation Z. Id. at 27456.
    As described in the proposal, by defining ``balloon payment'' in 
the 2011 ATR Proposal based on the Regulation Z definition, the Board 
proposed to adjust the Dodd-Frank Act statutory definition. In doing 
so, the Board stated that it was relying on TILA section 105(a) 
authority to make such adjustments for all or any class of transactions 
as in the judgment of the Board are necessary or proper to facilitate 
compliance with TILA. Id.; 15 U.S.C. 1604(a). The class of transactions 
for which the adjustment was proposed encompassed all transactions 
covered by the 2011 ATR Proposal, i.e., closed-end consumer credit 
transactions that are secured by a dwelling. The Board, however, 
solicited comment on the appropriateness of the proposed adjustment. 
The Board also stated that the proposed adjustment was supported by the 
Board's authority under TILA section 129B(e) to condition terms, acts, 
or practices relating to residential mortgage loans that the Board 
finds necessary or proper to facilitate compliance. 15 U.S.C. 1639b(e).
    In view of the different definitions of ``balloon payment'' between 
the Dodd-Frank Act and Regulation Z and the approach taken by the Board 
in the 2011 ATR Proposal, and based on the Bureau's authority under 
TILA section 105(a) and Dodd-Frank Act sections 1032(a), and for 
residential mortgage loans, Dodd-Frank Act section 1405(b), the Bureau 
proposed a definition of ``balloon payment'' in Sec.  1026.37(b)(5) 
that largely incorporates the existing Regulation Z definition in Sec.  
1026.18(s)(5)(i), i.e., a payment that is more than two times a regular 
periodic payment. For the reasons discussed below, the Bureau stated 
its belief in the proposal that the proposed definition will promote 
the informed use of credit and facilitate compliance with TILA, 
consistent with TILA section 105(a). In addition, the Bureau stated its 
belief that this definition will enhance consumer understanding of the 
costs, benefits, and risks associated with the transaction in light of 
the facts and circumstances (consistent with Dodd-Frank Act section 
1032(a)), and improve consumers' awareness and understanding of 
residential mortgage transactions, which is in the interest of 
consumers and the public (consistent with Dodd-Frank Act section 
1405(b)).
    The proposed definition in Sec.  1026.37(b)(5) would have revised 
the current regulatory language in Sec.  1026.18(s)(5)(i) to state that 
a balloon payment cannot be a regular periodic payment. This revision 
was intended to prevent a regular periodic payment following a 
scheduled or permitted payment increase under the terms of a loan 
contract (e.g., based on a rate adjustment under an adjustable rate 
loan) from being characterized as a balloon payment. The proposed 
definition would have applied to all transactions subject to proposed 
Sec.  1026.19(e). The Bureau stated in the proposal that it recognized 
that this proposed definition deviates from that prescribed in the 
Dodd-Frank Act. However, for the reasons set forth in the 2011 ATR 
Proposal, the Bureau stated its belief that adopting a consistent 
definition within Regulation Z will promote the informed use of credit 
and facilitate compliance and, therefore, will also benefit consumers 
and the public. See 76 FR 27456.
    Proposed comment 37(b)(5)-1 would have clarified that the ``regular 
periodic payment'' used to determine whether a payment is a ``balloon 
payment'' for purposes of Sec.  1026.37(b)(5) is the payment of 
principal and interest (or interest only, depending on the loan 
features) payable under the terms of the loan contract for two or more 
unit-periods in succession. The comment also would have clarified that 
all regular periodic payments during the loan term are used to 
determine whether a particular payment is a balloon payment, regardless 
of whether the regular periodic payments change during the loan term 
due to rate adjustments or other payment changes permitted or required 
under the loan contract. In other words, proposed comment 37(b)(5)-1 
would have clarified that if the particular payment is more than two 
times any one regular periodic payment during the loan term, it is 
disclosed as a balloon payment under Sec.  1026.37(b)(5) unless the 
particular payment itself is a regular periodic payment. Proposed 
comment 37(b)(5)-1.i would have given an example of a step-rate 
mortgage with two different regular periodic payment amounts. Proposed 
comment 37(b)(5)-1.ii would have clarified the definition of ``regular 
periodic payment'' in the context of a loan with an adjustable rate, 
where, under the terms of the loan contract, the regular periodic 
payments may increase after consummation, but the amounts of such 
payment increases (if any) are unknown at the time of consummation. In 
such instance, the proposed comment would have clarified that the 
``regular periodic payments'' are based on the fully-indexed rate, 
except as otherwise determined by any premium or discounted rates, the 
application of any interest rate adjustment caps, or any other known, 
scheduled rates under the terms specified in the loan contract. The 
proposed comment also would have referred to the analogous guidance 
provided in current comments 17(c)(1)-8 and -10, and given an example 
of an adjustable rate mortgage with two different periodic payment 
amounts.
    Proposed comment 37(b)(5)-1.iii would have clarified that for a 
loan with a negative amortization feature, the ``regular periodic 
payment'' does not take into account the possibility that the consumer 
may exercise an option to make a payment greater than the minimum 
scheduled periodic payment. Proposed comment 37(b)(5)-1.iv would have 
clarified that, for purposes of Sec.  1026.37(c), Sec.  1026.37(b)(5) 
governs the threshold determination of whether a loan has a balloon 
payment feature, but Sec.  1026.37(c) governs the disclosure of balloon 
payments in the ``Projected Payments'' table under that section. The 
definition of balloon payment in proposed Sec.  1026.37(b)(5) would 
have included the payments of a single or double payment transaction. 
Proposed comment 37(b)(5)-2 would have provided clarification regarding 
such single and double-payment transactions, which require a single 
payment due at maturity or only two payments during the loan term, and 
do not require regular periodic payments. The comment would

[[Page 79928]]

have clarified that a single payment transaction does not have regular 
periodic payments, because regular periodic payments must be made two 
or more unit-periods in succession (see proposed comment 37(b)(5)-1, 
described above). The comment would have further clarified that while a 
loan with only two scheduled payments, depending on the circumstances, 
may have regular periodic payments (e.g., if the two payments are made 
during the last month of years one and two of a two-year loan term), 
there is no third payment that could potentially be the balloon payment 
(i.e., a payment that is more than twice the amount of the regular 
periodic payments). The Bureau stated its belief in the proposal that 
the payments of such transactions are essentially equivalent, 
economically and practically, from the perspective of a consumer, to a 
balloon payment. The proposed comment would have clarified that 
notwithstanding the fact that there is no regular periodic payment to 
compare such single or double payments to, any payment in a single 
payment transaction or a transaction with only two scheduled payments 
is a ``balloon payment'' under Sec.  1026.37(b)(5). In the proposal, 
the Bureau sought comment on whether the definition of balloon payment 
in proposed Sec.  1026.37(b)(5) should be revised to exclude any 
particular type of payment.
    A document preparation company commented that the clarification in 
proposed comment 37(b)(5)-1 that a payment is a balloon payment if it 
is more than two times any one regular periodic payment is a departure 
from the existing definition of balloon payment in Sec.  1026.18(s)(5) 
which defines balloon payment as one that is more than two times a 
regular periodic payment. The commenter requested that the definition 
adopted in Sec.  1026.37(b)(5) conform with the existing definition. A 
document preparation company requested guidance on how to disclose an 
adjustable rate transaction, which does not adjust the regular periodic 
payment but would, if the rate increased, increase only the final 
payment. In response to the Bureau's solicitation of comments on 
whether any particular payments should be excluded from the definition, 
several industry commenters noted that the proposed balloon payment 
definition and commentary would render a final payment that is only 
slightly higher than a regular periodic payment because of rounding a 
balloon payment. Those commenters opined that such a result would be 
confusing to the consumer and could produce inconsistent results within 
different sections of the integrated disclosures because proposed 
comment 37(c)(1)(i) treated such rounded final payments as regular 
periodic payments for purposes of the Projected Payments table.
    In the proposal, the Bureau stated its intent to coordinate the 
definition of balloon payment in proposed Sec.  1026.37(b)(5) with the 
definitions of balloon payment in the Bureau's other pending 
rulemakings under the Dodd-Frank Act concerning ability-to-repay and 
high-cost mortgages under HOEPA. As noted above regarding prepayment 
penalty, since the proposal, the Bureau has issued both the 2013 ATR 
Final Rule and the 2013 HOEPA Final Rule. The 2013 ATR Final Rule did 
not include its own definition of balloon payment but instead cross-
referenced the existing definition in Sec.  1026.18(s)(5)(i). The 2013 
HOEPA Final Rule revised another definition of balloon payment found in 
Sec.  1026.32(d)(1), but the final HOEPA definition in that section is 
identical to the one in existing Sec.  1026.18(s)(5)(i). In order to 
coordinate with and use the same definition of balloon payment across 
these rulemakings, the Bureau is revising proposed Sec.  1026.37(b)(5) 
to delete the requirement that a balloon payment cannot itself be a 
periodic payment. The definition of balloon payment as adopted in Sec.  
1026.37(b)(5) is now identical to the existing definition in Sec.  
1026.18(s)(5)(i). The Bureau is retaining the clarification that a 
balloon payment cannot itself be a periodic payment in final comment 
37(b)(5)-1, however, because it believes such fact is inherent in its 
definition.
    With respect to the comment that the proposed definition of balloon 
payment is a departure from the existing definition in Sec.  
1026.18(s)(5)(i), the Bureau does not believe that the definition as 
adopted Sec.  1026.37(b)(5), and as clarified in comment 37(b)(5)-1, 
differs in any material way from that in existing Sec.  
1026.18(s)(5)(i). Indeed, the definition of balloon payment as 
finalized in Sec.  1026.37(b)(5) is identical to that in Sec.  
1026.18(s)(5)(i). Moreover, the commenter admitted that the existing 
definition in Sec.  1026.18(s)(5)(i) is not clear regarding which 
payment is the baseline for purposes of the balloon payment definition 
when periodic payments change over time, such as where the transaction 
has an adjustable rate. The Bureau interprets existing Sec.  
1026.18(s)(5)(i) as defining balloon payment as a payment that is more 
than two times any one periodic payment. The Bureau is simply 
clarifying that understanding in comment 37(b)(5)-1 for purposes of the 
integrated disclosure requirements.
    As noted in the proposal, the Bureau recognized that these 
additional clarifications may result in more payments being disclosed 
as balloon payments than under the current regulatory definition. The 
Bureau stated its belief in the proposal, however, that more frequent 
disclosure of balloon payment terms facilitates the informed use of 
credit, ensures that the features of mortgage loan products initially 
and over their terms are fully, accurately, and effectively disclosed 
to consumers in a manner that permits consumers to understand the 
costs, benefits, and risks associated with the loan products in light 
of the facts and circumstances, and improves consumers' awareness and 
understanding of residential mortgage transactions, which is in the 
interest of consumers and the public. Furthermore, the Bureau stated in 
the proposal its belief that a payment that is twice any one regular 
periodic payment using the regulatory definition, as revised in the 
proposed rule, would be equal to or less than a payment that is twice 
the average of earlier scheduled payments using the statutory 
definition.
    The Bureau notes that the range of scheduled payment amounts under 
the first approach is more limited and defined. For example, if the 
regular periodic payment is $200, a payment of greater than $400 would 
constitute a balloon payment. Under the statutory definition, however, 
the threshold amount for a balloon payment could be greater than $400 
if, for example, the regular periodic payments were increased by $100 
each year. Under this scenario, the amount constituting a ``balloon 
payment'' could increase with the incremental increase of the average 
of earlier scheduled payments. The Bureau stated its belief in the 
proposal that under the existing regulatory definition, as revised by 
the proposed rule, consumers would have a better understanding of the 
highest possible regular periodic payment in a repayment schedule and 
may experience less ``payment shock'' as a result. Therefore, the 
Bureau stated its belief that the existing regulatory definition may 
better protect consumers and would be in their interest. In addition, 
the Bureau stated its belief in the proposal that the definition of 
``balloon payment'' based on the existing regulatory definition would 
facilitate and simplify compliance by eliminating the need to average 
earlier scheduled payments.
    To address the commenter's concern about disclosing adjustable rate 
transactions that do not adjust the

[[Page 79929]]

regular periodic payment but only increase the final payment, the 
Bureau is revising comment 37(b)(5)-1.ii to clarify that the amount of 
the final payment for purposes of the balloon payment determination is 
based on the fully-indexed rate, except as otherwise determined by any 
premium or discounted rate caps, or any other known, scheduled rates 
under the terms specified in the loan contract.
    With respect to the comment that the proposed definition of balloon 
payment could include rounded final payments, the Bureau believes that 
disclosing a final payment that differs from a regular periodic payment 
only because of rounding as a balloon payment would not be beneficial 
for consumers. Accordingly, the Bureau is adding comment 37(b)(5)-1.iv, 
which tracks the language in comment 37(c)(1)(i)-1 and clarifies that a 
final payment that differs from other regular periodic payments because 
of rounding to account for payment amounts including fractions of cents 
is still a regular periodic payment and need not be disclosed as a 
balloon payment.
    For the reasons discussed, and pursuant to the authority discussed 
in the proposal and above, the Bureau is adopting Sec.  1026.37(b)(5) 
as revised to conform the definition of balloon payment with that in 
existing Sec.  1026.18(s)(5)(i). The Bureau is adopting comment 
37(b)(5)-1 substantially as proposed but with minor modifications for 
clarity. For the reasons discussed above, the Bureau is revising 
comment 37(b)(5)-1.ii to address an adjustable interest rate loan that 
adjusts only the final payment and not the regular periodic payments. 
As discussed above, the Bureau is adopting new comment 37(b)(5)-1.iv to 
address a final payment that differs from other regular periodic 
payments because of rounding. The Bureau did not receive any comments 
regarding proposed comments 37(b)(5)-1.i, -1.iii, -1.iv or -2 and is 
adopting them as proposed, except that proposed comment 37(b)(5)-1.iv 
is renumbered as comment 37(b)(5)-1.v.
37(b)(6) Increases After Consummation
    TILA section 128(b)(2)(C)(ii) requires, for closed-end credit 
transactions secured by a dwelling in which the interest rate or 
payments may vary, the disclosure of examples of adjustments to the 
regular required payment based on changes in the interest rates, 
including the maximum payment amount of the regular required payments 
based on the maximum interest rate under the contract. TILA section 
128(b)(2)(C)(ii) also requires the Bureau to conduct consumer testing 
to determine the appropriate format for providing the disclosures 
required under this subparagraph so that such disclosures can be easily 
understood, including the fact that the initial regular payments are 
for a specific time period and will end on a certain date, that 
payments may adjust afterwards to a higher amount, and that there is no 
guarantee that the borrower will be able to refinance to a lower 
amount. Currently, Regulation Z's disclosures for closed-end credit 
transactions secured by real property or a dwelling require information 
about whether the interest rate, periodic principal and interest 
payment, and loan amount can change. The disclosures are given in the 
interest rate and payment table required by Sec.  1026.18(s). For 
federally related mortgage loans, Sec.  1024.7(d) of Regulation X 
requires this information to be disclosed in the summary table on page 
1 of the RESPA GFE, as affirmative or negative answers to the questions 
``Can your interest rate rise,'' ``Even if you make payments on time, 
can your loan balance rise,'' and ``Even if you make payments on time, 
can your monthly amount owed for principal, interest, and any mortgage 
insurance rise?''
    As discussed above and described in the proposal, the Bureau 
conducted consumer testing of prototype mortgage disclosures over ten 
rounds prior to issuing the TILA-RESPA Proposal. During each round of 
testing, consumers placed significant emphasis when evaluating loans on 
whether the loan amount, interest rate, or periodic principal and 
interest payment could increase, the amount and timing of such 
increases, and whether they were scheduled increases or only potential 
increases. Accordingly, the Bureau stated its belief in the proposal 
that this information should be disclosed so that consumers can easily 
find and understand it.
    The Bureau proposed Sec.  1026.37(b)(6) to require that this 
information be disclosed in the Loan Terms table. Specifically, 
proposed Sec.  1026.37(b)(6) would have required disclosure of whether 
the amounts required to be disclosed by Sec.  1026.37(b)(1) through (3) 
may increase. If those amounts may increase, the creditor also would 
have been required to disclose, as applicable: (i) The maximum 
principal balance for the transaction and the date when the last 
payment for which the principal balance is permitted to increase will 
occur; (ii) the frequency of interest rate adjustments, the date when 
the interest rate begins to adjust, the maximum interest rate under the 
terms of the transaction, and the first adjustment that could result in 
the maximum interest rate; (iii) the frequency of adjustments to the 
periodic principal and interest payment, the date when the principal 
and interest payment begins to adjust, the maximum principal and 
interest under the transaction, and the first adjustment that can 
result in the maximum principal and interest payment; and (iv) the 
periods of any features that permit the periodic principal and interest 
payment to adjust without an adjustment to the interest rate, such as 
information about interest only periods. The Bureau also stated in the 
proposal that it understands from industry feedback provided in 
connection with the Bureau's stakeholder outreach that some adjustable 
rate loans, which may be more prevalent in the community bank market, 
may be structured so that the periodic principal and interest payment 
is fixed and increases in the interest rate increase the loan term 
instead of the payment. Accordingly, the information required by 
proposed Sec.  1026.37(b)(6)(ii) also would have included a statement 
of that fact for transactions that contain such a feature.
    The Bureau proposed a format that provides this information as 
affirmative or negative answers to one comprehensive question, ``Can 
this amount increase after closing?'' Under the proposal, the answers 
to this question would have been capitalized and in bold font. In 
addition, bullet-pointed text immediately to the right of these answers 
would have provided the maximum amounts, frequencies of changes, 
references to more detailed information disclosed elsewhere on the 
form, and other relevant information. Bold text would have been used 
for important information in these statements, to enable consumers to 
see it quickly. Proposed form H-24 of appendix H to Regulation Z would 
have illustrated the disclosure of such information, including the 
bullet-pointed text required and the portions of such text that are to 
be bolded. The Bureau tested prototype versions of this table in its 
consumer testing prior to issuing the proposal. During testing, 
consumers were able to understand and use this information in the 
proposed format when evaluating and comparing terms of credit. Based on 
these results, the Bureau stated its belief in the proposal that this 
format will enable consumers to find the information readily, to use it 
for evaluating and comparing terms of credit, and to understand the 
information.
    Pursuant to TILA section 128(b)(2)(C)(ii) and the Bureau's

[[Page 79930]]

authority under TILA section 105(a), RESPA section 19(a), Dodd-Frank 
Act section 1032(a), and Dodd-Frank Act 1405(b), the Bureau proposed 
Sec.  1026.37(b)(6) to require this information in the Loan Terms table 
and in the format required to be used by proposed Sec.  1026.37(o). In 
the proposal, the Bureau stated that it believed that this disclosure 
will effectuate the purposes of TILA because it will promote the 
informed use of credit and assure a meaningful disclosure to consumers, 
and thus, will benefit consumers and the public. The Bureau stated its 
belief in the proposal that this information improves consumer 
awareness and understanding of residential mortgage loans and is in the 
interest of consumers and the public, consistent with Dodd-Frank Act 
section 1405(b). The Bureau also stated its belief that, consistent 
with Dodd-Frank Act section 1032(a), this requirement may ensure that 
the features of any consumer financial product or service, both 
initially and over the term of the product or service, are fully, 
accurately, and effectively disclosed to consumers in a manner that 
permits consumers to understand the costs, benefits, and risks 
associated with the product or service, in light of the facts and 
circumstances. In addition, like HUD, the Bureau stated in the proposal 
that it believed this information is important to consumer 
understanding of the transaction and as a result, will promote more 
effective advance disclosure of settlement costs and should be provided 
on the disclosure.
    A document preparation company and a national trade association 
representing mortgage lenders requested guidance on how to disclose 
interest rates that adjust at multiple intervals. A document 
preparation company also requested guidance on how to disclose 
preferred rate transactions, third-party buydowns, and construction 
loans with different features for the construction and permanent phases 
under Sec.  1026.37(b)(6). A document preparation company requested 
guidance on whether the bullet points and bolded font used in form H-24 
at appendix H to Regulation Z are required by Sec.  1026.37(b)(6). The 
commenter requested that such formatting not be required because both 
bullets and selective bolding can be difficult and expensive to 
program.
    With respect to interest rates that adjust at multiple intervals, 
consistent with the Bureau's revisions to the loan product disclosure 
required by Sec.  1026.37(a)(10) and described in the section-by-
section analysis of Sec.  1026.37(a)(10) above, the Bureau is adding 
commentary to Sec.  1026.37(b)(6)(ii) to clarify that if there are 
multiple periods of adjustment in a transaction, Sec.  
1026.37(b)(6)(ii) requires disclosure of only the frequency of the 
first interest rate adjustment. Regarding disclosure of preferred rate 
transactions, consistent with existing commentary to Sec.  1026.17(c), 
the disclosures required by Sec.  1026.37(b)(6) should reflect the 
terms of the legal obligation. Similarly, with regard to third-party 
buydowns, existing comment 17(c)-3 governs disclosure of such 
transactions and would require disclosure of the rate reflected in the 
credit contract between the consumer and the creditor. If the rate 
disclosed pursuant to comment 17(c)-3 can change after consummation, 
Sec.  1026.37(b)(6) requires disclosure of that fact.
    Lastly, regarding construction-to-permanent loans that contain 
multiple transaction phases, existing Sec.  1026.17(c)(6)(ii) and its 
accompanying commentary address how to disclose construction-to-
permanent transactions. Section 1026.17(c)(6)(ii) provides that 
``[w]hen a multiple-advance loan to finance the construction of a 
dwelling may be permanently financed by the same creditor, the 
construction phase and the permanent phase may be treated as either one 
transaction or more than one transaction.'' Accordingly, a creditor may 
disclose a construction-to-permanent loan as separate transactions, 
with different disclosures for Sec.  1026.37(b)(6) regarding whether 
the interest rate increases after consummation. Should the creditor 
choose to treat the construction-to-permanent transaction as one 
transaction, however, Sec.  1026.37(b)(6) would require disclosure of 
whether the rate, during any phase of the complete transaction, would 
increase from the rate at consummation.
    The Bureau is adding commentary to Sec.  1026.37(b)(6)(iii) to 
clarify that if there are multiple periods of adjustment in a 
transaction, Sec.  1026.37(b)(6)(iii) requires disclosure of the 
frequency of only the first adjustment to the periodic principal and 
interest payment. The Bureau is further clarifying that Sec.  
1026.37(b)(6)(iii) requires that the first adjustment be disclosed, 
regardless of the basis for the first adjustment. In other words, where 
the periodic principal and interest payment may change because of more 
than one factor and such adjustments are on different schedules, the 
frequency disclosed is the adjustment of whichever factor adjusts 
first. For example, where the interest rate for a transaction is fixed 
until year six and then adjusts every three years but also has a 
negative amortization feature that ends in year seven, Sec.  
1026.37(b)(6)(iii) requires disclosure that the interest rate will 
adjust every three years starting in year six, because the periodic 
principal and interest payment adjusts based on the interest rate 
before it adjusts based on loan amount. The Bureau is further adding 
comment 37(b)(6)-1 which cross-references comment 37(a)(10)-3 for 
guidance on how to disclose adjustments after consummation that occur 
after a period that does not equate to a number of whole years.
    For the reasons discussed and based on the legal authority 
discussed above and in the proposal, the Bureau is adopting Sec.  
1026.37(b)(6), (b)(6)(ii), and (b)(6)(iii) substantially as proposed, 
with minor modifications for clarity. The Bureau is revising Sec.  
1026.37(b)(6)(i) to move to comment 37(b)(6)(i)-1 the particular 
phrases that comply with the requirement to indicate in the Loan Terms 
table whether the maximum principal balance is potential or scheduled 
to occur. The Bureau is further revising the phrase that describes a 
scheduled increase to ``Goes as high as'' rather than ``Will go as high 
as'' to use more plain language for the integrated disclosures. The 
Bureau is also adding comments 37(b)(6)(ii)-1 and 37(b)(6)(iii)-1 to 
clarify the phrases that comply with the requirements of Sec.  
1026.37(b)(6)(ii) and (iii), respectively, and to include additional 
information regarding changes to the interest rate and periodic 
principal and interest payment.
    As addressed more fully in Sec.  1026.37(o)(1)(ii) and Sec.  
1026.38(t)(1)(ii), all disclosures must be made in the same order, and 
positioned relative to the master headings, headings, subheadings, 
labels, and similar designations in the same manner, as shown in form 
H-24. And under Sec. Sec.  1026.37(o)(3) and 1026.38(t)(3), forms H-24 
and H-25, respectively, are required to be used for federally related 
mortgage loans. Because form H-24, as illustrated by forms H-24(B) 
through (F), contains bullet points and bolded font in the Loan Terms 
table described in Sec.  1026.37(b)(6), and the form is required to be 
used under Sec.  1026.37(o) for federally related mortgage loans, the 
bullet points and bolded font are required for such transactions. 
Comments 37(b)(6)(i)-1, 37(b)(6)(ii)-1, and 37(b)(6)(iii)-1 provide 
additional guidance that the formatting of the phrases in form H-24 of 
appendix H is required for federally related mortgage loans pursuant to 
Sec.  1026.37(o)(3).
    In the Bureau's pre-proposal consumer testing of the integrated 
disclosures, consumers found the

[[Page 79931]]

disclosures required by Sec.  1026.37(b)(6) beneficial. See Kleimann 
Testing Report at 161. The Bureau's Quantitative Study of the 
integrated disclosures concluded that the format of the disclosures 
performed significantly better than the current disclosure format at 
enabling consumers to identify and compare the key loan terms, 
including the interest rate and monthly payment. See Kleimann 
Quantitative Study Report at 67. Accordingly, the Bureau believes that 
the benefits to consumers of this formatting which highlights the 
relevant information outweighs the cost of implementation. Further, for 
the reasons discussed, the Bureau is adding comments 37(b)(6)-1, 
37(b)(6)(ii)-2, and 37(b)(6)(iii)-2 to clarify how to disclose periods 
that are not in whole years, interest rates that adjust at multiple 
intervals, and periodic principal and interest payments that adjust at 
multiple intervals.
37(b)(7) Details About Prepayment Penalty and Balloon Payment
    Currently, for closed-end credit transactions secured by real 
property or a dwelling, Sec.  1026.18(k) of Regulation Z does not 
require the disclosure of the maximum prepayment penalty that may be 
charged. While Sec.  1026.18(s) currently requires the balloon payment 
that may be charged on a loan to be disclosed, it is not required to be 
disclosed with other key terms of the transaction. For federally 
related mortgage loans, Sec.  1024.7(d) of Regulation X currently 
requires the maximum prepayment penalty and balloon payment in the 
summary table on page 1 of the RESPA GFE with the text, ``your maximum 
prepayment penalty is $--'' and ``you have a balloon payment of $--due 
in --years.''
    Proposed Sec.  1026.37(b)(7) would have required the information in 
proposed Sec.  1026.37(b)(4) and (5) to be disclosed as an affirmative 
or negative answer to the question ``Does the loan have these 
features?'' The section also would have required disclosure of the 
maximum prepayment penalty, the period in which a prepayment penalty 
may be imposed, the maximum amounts of any balloon payments and the 
dates of such payments. Like the information required to be disclosed 
by proposed Sec.  1026.37(b)(6), the format required for this 
information by proposed Sec.  1026.37(o) emphasizes the maximum amounts 
by using bold text, to enable consumers to find these amounts quickly. 
Proposed comment 37(b)(7)(i)-1 would have provided guidance regarding 
calculating the maximum amount of the prepayment penalty.
    In the Bureau's consumer testing prior to the proposal, consumers 
were able to use this disclosure to determine easily if the loan had a 
prepayment penalty, the maximum amount, and the period during which the 
penalty applied, and the amount and time of a balloon payment. See 
Kleimann Testing Report at 121-2. As described in the proposal, the 
Bureau's consumer testing indicated that consumers place significant 
emphasis when evaluating loans on the potential for large balloon or 
prepayment penalty amounts.
    The Bureau proposed to use its authority under TILA sections 
105(a), Dodd-Frank Act section 1032(a), and RESPA section 19(a) to 
require disclosure of this information in the Loan Terms table of the 
Loan Estimate. In the proposal, the Bureau stated its belief that 
placing these details about prepayment penalties and balloon payments 
in the summary table with bold text for the maximum amounts allows 
consumers to find this information easily, enabling consumers to 
understand and evaluate loans, promoting meaningful disclosure of 
credit terms to consumers. The Bureau further stated that it believed 
this disclosure will effectuate the purposes of TILA because it will 
promote the informed use of credit and assure a meaningful disclosure 
to consumers, and thus, will benefit consumers and the public. In 
addition, the Bureau stated in the proposal that, like HUD, it believed 
that this information is important to consumer understanding of the 
transaction and as a result, will promote more effective advance 
disclosure of settlement costs and should be provided on the 
disclosure.
    A national trade association representing mortgage lenders 
requested guidance regarding whether to use a premium or discounted 
interest rate, rather than the fully-indexed rate, when calculating the 
maximum prepayment penalty pursuant to Sec.  1026.37(b)(7)(i). A large 
bank requested guidance on how to calculate the maximum prepayment 
penalty, asking whether it is determined by treating the loan balance 
as outstanding for a period of time after prepayment in full and 
applying the interest rate to such balance, as described in comment 
37(b)(4)-2.i. Regarding whether to use the premium or discounted 
interest rate, as stated in proposed comment 37(b)(7)(i)-1, the maximum 
prepayment penalty must be calculated based on the terms of the legal 
obligation and thus the interest used to calculate the disclosure 
required by Sec.  1026.37(b)(7)(i) would be the discounted interest 
rate if it were in effect during the prepayment penalty period. With 
respect to treating the loan balance as outstanding after prepayment in 
full, as stated in proposed comment 37(b)(7)(i)-1, the disclosure is 
the maximum possible amount of the prepayment penalty and thus would be 
calculated assuming the consumer prepaid in full on the first day of 
the period for which the loan balance would be treated as outstanding.
    The Bureau continues to believe that disclosure of the maximum 
prepayment penalty will effectuate the purposes of both TILA and RESPA. 
Accordingly, the Bureau is adopting Sec.  1026.37(b)(7) substantially 
as proposed but with minor revisions for clarity, based on the legal 
authority discussed above and in the proposal. Based on that same 
authority, the Bureau is adopting comment 37(b)(7)(i)-1 substantially 
as proposed, except that it is removing the example for a negatively 
amortizing loan because a prepayment penalty generally would be 
prohibited for such a transaction under Sec.  1026.43(g) as adopted by 
the 2013 ATR Final Rule. The Bureau is further adding comments 
37(b)(7)(i)-2 and 37(b)(7)(ii)-1 to clarify the phrases that must be 
used in the loan terms table to indicate the additional information 
required to be disclosed by Sec.  1026.37(b)(7)(i) regarding the 
prepayment penalty and by Sec.  1026.37(b)(7)(ii) regarding the balloon 
payment, respectively. Comment 37(b)(7)(ii)-1 also clarifies that if a 
transaction includes more than one balloon payment, the disclosure 
required is the highest balloon payment and the due date of that 
payment.
37(b)(8) Timing
    As described in the proposal, the Bureau believes the references to 
the dates required to be disclosed by proposed Sec.  1026.37(b)(6) and 
(7) are easily understood by consumers if disclosed in whole years. The 
prototype mortgage disclosures used at the Bureau's consumer testing 
displayed these dates as years, and consumers were able to understand 
and evaluate the risks posed by these maximum amounts. The Bureau 
stated its belief in the proposal that this unit of time provides a 
frame of reference to consumers that they use more regularly and that 
is easier to understand than ``payments'' or high-number values of 
``months,'' such as 60 months.
    The Bureau proposed Sec.  1026.37(b)(8), pursuant to its authority 
under TILA section 105(a), Dodd-Frank section 1032(a), and RESPA 
section 19(a), which would have required the information required to be 
disclosed by Sec.  1026.37(b)(6) and (7) to be disclosed by stating the 
number of the year in

[[Page 79932]]

which the payment or adjustment occurs, counting from the date that 
interest for the regularly scheduled periodic payment begins to accrue. 
Proposed comment 37(b)(8)-1 would have provided examples of how to 
disclose dates using the timing rules of proposed Sec.  1026.37(b)(8). 
The Bureau stated its belief in the proposal that this disclosure 
provides a meaningful disclosure of credit terms, promotes the informed 
use of credit by consumers, and may ensure that the features of 
consumer credit transactions secured by real property are fully, 
accurately, and effectively disclosed to consumers in a manner that 
permits consumers to understand the costs, benefits, and risks 
associated with the product or service, in light of the facts and 
circumstances.
    Several national trade associations representing mortgage lenders 
commented that proposed Sec.  1026.37(b)(8) defined ``year'' 
differently than in comment 37(c)(3)(ii)-1 which provided guidance 
regarding the completion of the projected payments table required by 
Sec.  1026.37(c). These commenters suggested that disclosing the same 
rate and payment adjustments under the Loan Terms section as occurring 
in different years than in the Projected Payments table would be 
confusing for consumers. The Bureau believes that the likelihood is low 
that these disclosures would require the statement of a different year, 
because changes in the periodic payment would generally occur only one 
month after the interest rate change occurred for most transactions, 
which month would fall within the same 12-month period. However, the 
Bureau believes that using different timing conventions for certain 
disclosure requirements may increase compliance burden. Accordingly, 
the Bureau is revising Sec.  1026.37(b)(8) to conform the applicable 
timing conventions to Sec.  1026.37(c) and to add new Sec.  
1026.37(b)(8)(ii) and (iii). As revised, Sec.  1026.37(b)(8)(ii) 
provides that for the disclosures required by Sec.  1026.37(b)(6)(i), 
with respect to increases in the loan amount, by Sec.  
1026.37(b)(6)(iii), with respect to increases in the periodic payment, 
and by Sec.  1026.37(b)(7)(ii), with respect to the date of a balloon 
payment, the date disclosed is the year in which the event occurs, 
counting from the due date of the initial periodic payment. This 
conforms to Sec.  1026.37(c)(3)(ii) with respect to the timing 
convention in the Projected Payments table. The Bureau is further 
adding Sec.  1026.37(b)(8)(iii) to provide that for the disclosure 
required by Sec.  1026.37(b)(7)(i) with respect to the period of a 
prepayment penalty, the date disclosed is the year in which the event 
occurs, counting from the date of consummation. The Bureau is making 
this revision to correspond with the timing convention for the 
prohibition on prepayment penalties in the 2013 ATR Final Rule which 
provides in Sec.  1026.43(g)(2) that a prepayment penalty must not 
apply after the three-year period following consummation.
    The Bureau is retaining the timing convention proposed in Sec.  
1026.37(b)(8), renumbered as Sec.  1026.37(b)(8)(i) and revised to 
apply only the disclosure required by Sec.  1026.37(b)(6)(ii), related 
to the interest rate. Final Sec.  1026.37(b)(8)(i) requires disclosure 
of changes in the consumer's interest rate to be disclosed as the year 
in which the event occurs, counting from the date that interest for the 
first scheduled periodic payment begins to accrue after consummation. 
The Bureau is adopting Sec.  1026.37(b)(8) as revised.
    The Bureau is also revising proposed comment 37(b)(8)-1 to reflect 
the revisions described above and to provide examples for the 
disclosures required by Sec.  1026.37(b)(6). The Bureau is further 
revising comment 37(b)(8)-1 in response to requests for guidance on how 
to disclose dates that are not whole years. Accordingly, comment 
37(b)(8)-1, as revised, clarifies how to disclose adjustments that 
occur after a period of whole years. The Bureau is also adding comment 
37(b)(8)-2, which cross-references comment 37(a)(10)-3 and clarifies 
how to disclose adjustments that occur after a number of months less 
than 24 that do not equate to a number of whole years or after a number 
of days. For the reasons discussed and pursuant to the legal authority 
described in the proposal and above, the Bureau is adopting Sec.  
1026.37(b)(8) and comments 37(b)(8)-1 as revised and adding comment 
37(b)(8)-2.
37(c) Projected Payments
    TILA section 128(a)(6) requires creditors to disclose the number, 
amount, and due dates or period of payments scheduled to repay the 
total of payments. 15 U.S.C. 1638(a)(6). TILA section 128(b)(2)(C)(ii) 
requires the disclosure of certain payment-related information for 
closed-end variable-rate transactions, or transactions where the 
regular payment may otherwise be variable, that are secured by a 
dwelling, including examples of payments. 15 U.S.C. 1638(b)(2)(C)(ii). 
Specifically, creditors must provide examples of adjustments to the 
regular required payment on the extension of credit based on the change 
in the interest rates specified by the contract for such extension of 
credit. Id. Among the examples required is one that reflects the 
maximum payment amount of the regular required payments on the 
extension of credit, based on the maximum interest rate allowed under 
the contract. Id. TILA section 128(b)(2)(C)(i) also provides that these 
examples must be in conspicuous type size and format and that the 
payment schedule be labeled ``Payment Schedule: Payments Will Vary 
Based on Interest Rate Changes.'' Section 128(b)(2)(C)(ii) requires the 
Bureau to conduct consumer testing to determine the appropriate format 
for providing the disclosures to consumers so that the disclosures can 
be easily understood.
    In addition, TILA section 128(a)(16)(A), added to TILA by section 
1419 of the Dodd-Frank Act, provides that, for variable-rate 
residential mortgage loans for which an escrow account will be 
established, the creditor must disclose both the initial monthly 
principal and interest payment, and the initial monthly principal and 
interest payment including any amount deposited in an escrow account 
for the payment of applicable taxes, insurance, and assessments. 15 
U.S.C. 1638(a)(16)(A). New TILA section 128(a)(16)(B) also requires 
that, for variable-rate residential mortgage loans for which an escrow 
account will be established, the creditor disclose the amount of the 
fully-indexed monthly payment due under the loan for the payment of 
principal and interest, and the fully-indexed monthly payment including 
any amount deposited in an escrow account for the payment of applicable 
taxes, insurance, and assessments. 15 U.S.C. 1638(a)(16)(B). TILA 
section 128(b)(4)(A), added by section 1465 of the Dodd-Frank Act, 
provides that, in the case of any consumer credit transaction secured 
by a first mortgage on the principal dwelling of the consumer, other 
than an open-end credit plan or reverse mortgage, for which an escrow 
account has been or will be established, the disclosures required by 
TILA section 128(a)(6) must take into account the amount of any monthly 
payment to such account, in accordance with section 10(a)(2) of 
RESPA.\269\ 15 U.S.C. 1638(b)(4)(A); 12 U.S.C. 2609(a)(2). New TILA 
section 128(b)(4)(B) generally

[[Page 79933]]

requires creditors to take into account the taxable assessed value of 
the property during the first year after consummation, including the 
value of any improvements constructed or to be constructed on the 
property, if known, and the replacement costs of the property for 
hazard insurance, when disclosing taxes and insurance escrows pursuant 
to TILA section 128(b)(4)(A). 15 U.S.C. 1638(b)(4)(B).
---------------------------------------------------------------------------

    \269\ Section 10(a)(2) of RESPA prohibits the lender, over the 
life of the escrow account, from requiring the borrower to make 
payments to an escrow account that exceed one-twelfth of the total 
annual escrow disbursements that the lender reasonably anticipates 
paying from the escrow account during the year, plus the amount 
necessary to maintain a one-sixth cushion. 12 U.S.C. 2609(a)(2).
---------------------------------------------------------------------------

    Current Sec.  1026.18(s) implements the requirements of TILA 
sections 128(a)(6) and 128(b)(2)(C) for all closed-end transactions 
secured by real property or a dwelling, other than transactions secured 
by the consumer's interest in a timeshare plan described in 11 U.S.C. 
101(53D). Section 1026.18(s) requires creditors to disclose the 
contract interest rate, regular periodic payment, and any balloon 
payment. For adjustable rate or step-rate amortizing mortgages, the 
creditor must disclose up to three interest rates and corresponding 
periodic payments. If payments are scheduled to increase independent of 
an interest-rate adjustment, the creditor must disclose the increased 
payment. If a borrower may make one or more payments of interest only, 
all payment amounts disclosed must be itemized to show the amount that 
will be applied to interest and the amount that will be applied to 
principal. Current Sec.  1026.18(s) requires special interest rate and 
payment disclosures for loans that permit negative amortization. Also 
under current Sec.  1026.18(s), creditors must separately itemize an 
estimate of the amount for taxes and insurance, including mortgage 
insurance, if the creditor will establish an escrow account for the 
payment of such amounts. The Board adopted this requirement pursuant to 
its authority under TILA section 105(a), based on consumer testing 
which indicated that consumers compare loans based on the monthly 
payment amount and that escrow payment information is necessary for 
consumers to understand the monthly amount they will pay. MDIA Interim 
Rule, 75 FR 58476-77 (Sept. 24, 2010). Current Sec.  1026.18(s) also 
requires the disclosure of total periodic payments. Creditors must 
provide the information about interest rates and payments in the form 
of a table, and creditors are not permitted to include other, unrelated 
information in the table.
    Current Sec.  1026.18(s) expands the scope of TILA section 
128(b)(2)(C) to all closed-end transactions secured by real property or 
a dwelling, other than transactions secured by the consumer's interest 
in a timeshare plan, including transactions in which the interest rate 
and regular payments do not vary and those that are secured by real 
property that does not include a dwelling. The Board adjusted the scope 
of this provision pursuant to its authority under TILA section 105(a). 
The Board reasoned that providing examples of increased interest rates 
and payments will help consumers understand the risks involved in 
certain loans, and that consistent disclosure requirements for all 
mortgage-secured, closed-end consumer credit transactions, whether or 
not they include a dwelling, would ease compliance burden for mortgage 
creditors. MDIA Interim Rule, 75 FR 58470, 58473-74. The Board also 
stated that applying Sec.  1026.18(s) to transactions where the 
interest rate or regular payments do not vary would simplify compliance 
for creditors and make it easier for consumers to compare different 
loan products. For all other closed-end credit transactions, Sec.  
1026.18(g) provides the rules for disclosing the payment schedule.
    Pursuant to its authority under TILA section 105(a) and Dodd-Frank 
Act sections 1032(a) and 1405(b), the Bureau proposed to incorporate 
the requirements of current Sec.  1026.18(s) into new Sec.  1026.37(c), 
for closed-end mortgages subject to proposed Sec.  1026.19(e), with 
certain adjustments that are outlined below. As stated in the proposal, 
the Bureau believed that these requirements are necessary and proper to 
effectuate the purposes of TILA by promoting the informed use of 
credit. Accordingly, proposed Sec.  1026.37(c) would have implemented 
the requirements of TILA sections 128(a)(6) and 128(b)(2)(C), and also 
would have implemented the requirements of new TILA sections 128(a)(16) 
and (b)(4), for closed-end mortgages subject to proposed Sec.  
1026.19(e). For all other closed-end transactions, Sec.  1026.18(g) and 
(s) would have continued to apply.
    Like existing Sec.  1026.18(s), proposed Sec.  1026.37(c) would 
have required creditors to disclose, in a separate table, an 
itemization of each separate periodic payment or range of payments 
required after consummation under the terms of the legal obligation. 
Proposed Sec.  1026.37(c) also would have required disclosure of an 
estimate of taxes, insurance, and assessments and the payments to be 
made with escrow account funds. Specifically, the table required by 
proposed Sec.  1026.37(c) would have contained the projected principal 
and interest, mortgage insurance, estimated escrowed taxes and 
insurance, estimated total monthly payment, and estimated taxes, 
insurance, and assessment disclosures, required by Sec.  1026.37(c)(1) 
through (4). Pursuant to proposed Sec.  1026.37(o) and form H-24, the 
table required by proposed Sec.  1026.37(c) would have appeared on the 
first page of the Loan Estimate. The Bureau proposed that, as under 
Sec.  1026.18(s), the table required by proposed Sec.  1026.37(c) would 
have been disclosed in all transactions subject to proposed Sec.  
1026.19(e), even in transactions where the interest rate will not vary 
and those that are secured by real property that does not include a 
dwelling. Unlike current Sec.  1026.18(s), the projected payments table 
required by proposed Sec.  1026.37(c) would have applied to 
transactions secured by the consumer's interest in a timeshare plan but 
would not have applied to transactions secured by a dwelling that is 
not real property, for the reasons discussed in the section-by-section 
analysis of proposed Sec.  1026.19.
    The Bureau proposed to require the information disclosed pursuant 
to proposed Sec.  1026.37(c) to appear under the heading ``Projected 
Payments.'' As discussed above, TILA section 128(b)(2)(C)(i) requires 
the payment schedule to be labeled ``Payment Schedule: Payments Will 
Vary Based on Interest Rate.'' The proposed rule stated that the Bureau 
believed that ``Projected Payments'' conveys the same substantive 
meaning, in plainer and simpler language, and is a more accurate 
heading for the table required by proposed Sec.  1026.37(c) since 
payment amounts may vary for reasons other than interest rate, such as 
in graduated-payment plans or due to the termination of mortgage 
insurance under applicable law. The heading also performed well in 
consumer testing. Using the table under the heading ``Projected 
Payments,'' participants in the Bureau's consumer testing were able to 
readily identify that their monthly payments might change in the 
future. Furthermore, the proposed rule stated that the Bureau believed 
that the Loan Terms table required by proposed Sec.  1026.37(b) would 
effectively disclose when payments and interest rate will vary, and 
that consumers would not benefit from disclosure of that information in 
multiple places on the form. Accordingly, the Bureau believed that this 
proposed adjustment would promote the informed use of credit, improve 
consumer awareness and understanding of transactions involving 
residential mortgage loans, and is in the interest of consumers and the 
public, consistent with the purpose of TILA and with Dodd-Frank Act 
section 1405(b). In addition, the proposal noted that the Bureau 
believes that this disclosure would ensure that the features of 
consumer credit

[[Page 79934]]

transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances, consistent 
with section 1032(a) of the Dodd-Frank Act. Proposed comment 37(c)-1 
would have provided that, for purposes of proposed Sec.  1026.37(c), 
the terms ``adjustable rate,'' ``fixed rate,'' ``negative 
amortization,'' and ``interest only'' have the meanings prescribed in 
Sec.  1026.37(a)(10).
    The Bureau understands from comments and informal feedback received 
prior to the proposal that consumer advocacy groups and some members of 
the financial services industry generally support requiring creditors 
to disclose the projected payments table, which would include the 
maximum possible payment under the terms of the legal obligation. In 
addition, the Bureau's qualitative consumer testing showed that 
consumers are able to use the projected payments table to identify how 
different elements of their periodic payments for principal and 
interest, taxes, and insurance can change over time. See Kleimann 
Testing Report at xxiv-v. Even if consumers could not fully understand 
why their payments changed, they understood that the payments would 
change and easily used the maximum possible payment amounts to judge 
their maximum payments over time. Id. at xxv. Consumers were also able 
to use the projected payments table to find elements of 
unpredictability in a loan and to compare the levels of predictability 
in the loans presented to them. Id. The Bureau's Quantitative Study 
similarly showed that consumers were better able to understand and 
answer questions about their total monthly payments, how the amount of 
monthly payment may change over time, and the various components of 
their monthly payments using the projected payments table than they 
were using the current disclosures. See Kleimann Quantitative Study 
Report at 55-56. Although the Bureau did not receive specific comment 
on the proposed introductory text to Sec.  1026.37(c), including the 
heading ``Projected Payments,'' or on proposed comment 37(c)-1, one 
large provider of mortgage origination software suggested the Bureau 
clarify that the projected payments table represents a payment schedule 
that is a material disclosure for purposes of Sec.  1026.23. For the 
reasons discussed above and in the proposed rule, the Bureau is 
finalizing the introductory text to Sec.  1026.37(c) and comment 37(c)-
1 as proposed. The introductory text under Sec.  1026.37(c) requires 
creditors to disclose in a separate table under the heading ``Projected 
Payments,'' an itemization of each separate periodic payment or range 
of payments. This requirement pertains to such payments during the loan 
term, and thus, applies to future anticipated payments under the terms 
of the legal obligation, in addition to the initial periodic payment. 
For example, under Sec.  1026.37(c)(1)(i)(A), one of the events 
requiring disclosure of an additional separate period payment or range 
of payments is if the periodic principal and interest payment or range 
of such payments may change. This would occur in an adjustable rate 
loan for which the promissory note provides for an interest rate change 
date after the date of consummation, which change is based on an 
external index, that requires monthly payments of principal and 
interest, and for which a new monthly payment is required beginning on 
the first monthly payment due date after the interest rate change date. 
The date the monthly payment may change is an event requiring 
disclosure, and the disclosure would reflect the monthly payments 
possible under the terms of the legal obligation, based on the minimum 
and maximum interest rates for such change. This range would be 
disclosed even though, in fact, the interest rate may not change on the 
interest rate change date, and thus, the monthly payment due after such 
change date would remain the same as the previous monthly payment.
    The Bureau has considered the comment requesting clarification 
regarding whether the projected payments table is a material disclosure 
for purposes of Sec.  1026.23. Although the Bureau is not adopting such 
a clarification in the rule, for consistency with the approach in 
current Regulation Z, the Bureau notes that the projected payments 
table required by Sec. Sec.  1026.37(c) and 1026.38(c) is a ``payment 
schedule'' for purposes of Sec.  1026.23, for the reasons discussed 
above in the section-by-section analysis of Sec.  1026.18(s).
37(c)(1) Periodic Payment or Range of Payments
37(c)(1)(i)
    Proposed Sec.  1026.37(c)(1)(i) would have provided rules regarding 
the separate periodic payments or ranges of payments to be disclosed on 
the table required by Sec.  1026.37(c). Specifically, proposed Sec.  
1026.37(c)(1)(i) would have provided that the initial periodic payment 
or range of payments is a separate periodic payment or range of 
payments and, except as otherwise provided in Sec.  1026.37(c)(1)(ii), 
the following events would have required the disclosure of additional 
separate periodic payments or ranges of payments: (A) the periodic 
principal and interest payment or range of such payments may change; 
(B) a scheduled balloon payment; and (C) the creditor must 
automatically terminate mortgage insurance coverage, or any functional 
equivalent, under applicable law.
    Proposed comments 37(c)(1)(i)-1, 37(c)(1)(i)(A)-1 through -3, 
37(c)(1)(i)(B)-1, and 37(c)(1)(i)(C)-1 through -3 would have provided 
guidance to creditors on the events requiring the disclosure of a 
separate periodic payment or range of payments. Proposed comment 
37(c)(1)(i)-1 would have clarified that, for purposes of Sec.  
1026.37(c)(1)(i), the periodic payment is the regularly scheduled 
payment of principal and interest, mortgage insurance, and escrow 
payments described in Sec.  1026.37(c)(2) without regard to any final 
payment that differs from other payments because of rounding to account 
for payment amounts including fractions of cents. Proposed comment 
37(c)(1)(i)(A)-1 would have provided that periodic principal and 
interest payments may change when the interest rate, applicable 
interest rate caps, required periodic principal and interest payments, 
or ranges of such payments may change. Minor payment variations 
resulting solely from the fact that months have different numbers of 
days would not have been classified as changes to periodic principal 
and interest payments. For a loan that permits negative amortization, 
proposed comment 37(c)(1)(i)(A)-2 would have clarified that periodic 
principal and interest payments may change at the time of a scheduled 
recast of the mortgage loan and when the consumer must begin making 
fully amortizing payments of principal and interest. The comment also 
would have provided that the disclosure of an event requiring 
disclosure of additional separate periodic payments or ranges of 
payments should be based on the assumption that the consumer will make 
only the minimum payment required under the terms of the legal 
obligation, for the maximum amount of time permitted, taking into 
account changes to interest rates that may occur under the terms of the 
legal obligation, and that the table required by Sec.  1026.37(c) 
should reflect any balloon payment that would result from making

[[Page 79935]]

the minimum payment required under the terms of the legal obligation. 
In a loan that permits payment of only interest for a specified period, 
proposed comment 37(c)(1)(i)(A)-3 would have clarified that periodic 
principal and interest payments may change for purposes of Sec.  
1026.37(c)(1)(i)(A) when the consumer must begin making fully 
amortizing periodic payments of principal and interest.
    Proposed comment 37(c)(1)(i)(B)-1 would have stated that, for 
purposes of Sec.  1026.37(c)(1)(i)(B), whether a balloon payment occurs 
is determined pursuant to Sec.  1026.37(b)(5) and its commentary. 
Although the existence of a balloon payment would have been determined 
pursuant to Sec.  1026.37(b)(5) and its commentary, balloon payment 
amounts to be disclosed under Sec.  1026.37(c) would have been 
calculated in the same manner as periodic principal and interest 
payments under Sec.  1026.37(c). For example, for a balloon payment 
amount that can change depending on previous interest rate adjustments 
that are based on the value of an index at the time of the adjustment, 
the balloon payment amounts would have been calculated using the 
assumptions for minimum and maximum interest rates described in 
proposed Sec.  1026.37(c)(1)(iii) and its commentary, and should be 
disclosed as a range of payments.
    Proposed comments 37(c)(1)(i)(C)-1 through -3 would have provided 
guidance to creditors regarding the disclosure of mortgage insurance. 
Proposed comment 37(c)(1)(i)(C)-1 would have stated that ``mortgage 
insurance'' means insurance against the nonpayment of, or default on, 
an individual mortgage, and that, for purposes of proposed Sec.  
1026.37(c), ``mortgage insurance or any functional equivalent'' would 
have included any mortgage guarantee that provides coverage similar to 
mortgage insurance (such as a United States Department of Veterans 
Affairs or United States Department of Agriculture guarantee), even if 
not technically considered insurance under State or other applicable 
law. The Bureau stated in the proposal that it understands that some 
governmental loan programs impose an annual guarantee fee, and that 
creditors typically collect a monthly escrow for the payment of such 
amounts. Current Sec.  1026.18(s) requires creditors to disclose 
whether mortgage insurance is included in monthly escrow payments, but 
industry uncertainty exists as to whether it is permissible to identify 
such guarantees as mortgage insurance on the disclosure required by 
Sec.  1026.18(s). Although the proposed rule recognized that such 
guarantees are legally distinguishable from mortgage insurance, it also 
noted that they are functionally very similar. Accordingly, proposed 
comment 37(c)(1)(i)(C)-1 would have clarified that creditors should 
disclose any mortgage guarantee that provides coverage similar to 
mortgage insurance, even if not considered insurance under State or 
other applicable law, as mortgage insurance on the disclosure required 
by proposed Sec.  1026.37(c). Proposed comment 37(c)(1)(i)(C)-1 would 
have been consistent with the treatment of mortgage guarantee fees 
under proposed comment 18(s)(3)(i)(C)-2.
    Proposed comment 37(c)(1)(i)(C)-2 would have provided guidance to 
creditors on the calculation and termination of mortgage insurance 
premiums for purposes of determining the occurrence of an event 
requiring disclosure of additional separate periodic payments or ranges 
of payments by providing that, for purposes of proposed Sec.  
1026.37(c)(1)(i)(C), mortgage insurance premiums should be calculated 
based on the declining principal balance that will occur as a result of 
changes to the interest rate and payment amounts, assuming the fully-
indexed rate at consummation, taking into account any introductory 
rates. Finally, proposed comment 37(c)(1)(i)(C)-3 would have clarified 
that the table required by proposed Sec.  1026.37(c) reflected the 
consumer's mortgage insurance payments until the date on which the 
creditor must automatically terminate coverage under applicable law, 
even though the consumer may have a right to request that the insurance 
be cancelled earlier. Unlike termination of mortgage insurance, a 
subsequent decline in the consumer's mortgage insurance premiums would 
not have been, by itself, an event that requires the disclosure of 
additional separate periodic payments or ranges of payments in the 
table required by Sec.  1026.37(c). For example, some mortgage 
insurance programs annually adjust premiums based on the declining loan 
balance. Such annual adjustment to the amount of premiums would not 
have required a separate disclosure of a periodic payment or range of 
payments.
    Industry commenters requested technical clarifications on this 
portion of the proposed rule. For example, one large creditor and 
several industry trade association commenters asked for clarification 
as to whether the disclosed payments should be based on the actual 
initial interest rate or the fully-indexed rate, and suggested that the 
appropriate approach is to require use of the actual interest rate. A 
law firm commenter representing a mortgage origination software 
provider requested clarification that an irregular first payment based 
on a short or long number of days until the first regular payment 
should be disregarded and should not be an event that requires the 
disclosure of additional separate periodic payments or ranges of 
payments. That commenter also requested clarification on the 
appropriate disclosure of monthly payment amounts in the case of 
construction and bridge loans where payment amounts tend to vary each 
month. One large provider of mortgage origination software noted that 
the varying number of columns in the projected payments table is the 
most significant programming challenge in the proposed rule and 
suggested that, due to this complexity, it would require at least one 
year to implement.
    A large consumer advocacy group commenter suggested changes to the 
rule on calculation of the maximum payment in loans with negative 
amortization features. As noted above, the proposed rule included 
guidance for calculating the maximum payment in two separate places. 
For loans that permit negative amortization, proposed comment 
37(c)(1)(i)(A)-2, which would have provided guidance on negative 
amortization loans for purposes of determining the occurrence of an 
event requiring disclosure of additional separate periodic payments or 
range of payments, would have provided that the disclosure should be 
based on the assumption that the consumer will make only the minimum 
payment required under the legal obligation. Proposed Sec.  
1026.37(c)(1)(iii) and comment 37(c)(1)(iii)-1, however, would have 
provided that, for adjustable rate loans, the maximum disclosed payment 
amounts are determined by assuming that the interest rate in effect 
throughout the loan term is the maximum possible rate and that the 
creditor assumes the interest rate will rise as rapidly as possible 
after consummation. Proposed Sec.  1026.37(c)(1)(iii) did not contain 
specific guidance on loans with negative amortization features. The 
commenter stated that if a creditor were to apply both provisions to an 
adjustable rate loan with a negative amortization feature, it would 
produce a payment that is less than the maximum possible payment.
    Several industry commenters also requested clarifications regarding 
the termination of mortgage insurance, or any functional equivalent, 
under Sec.  1026.37(c)(1)(i)(C). For example, one large provider of 
mortgage origination

[[Page 79936]]

software requested clarification as to whether ``mortgage insurance or 
any functional equivalent'' for purposes of Sec.  1026.37(c) requires 
disclosure of upfront or financed mortgage insurance premiums, such as 
the funding fee on loans guaranteed by the U.S. Department of Veterans 
Affairs. Similarly, a large consumer advocacy group commenter argued 
that creditor-paid mortgage insurance should also be disclosed on the 
table required by proposed Sec.  1026.37(c) because those amounts are 
generally paid in the form of higher origination fees or a higher 
interest rate. Several industry trade association commenters and a 
large national lender also requested clarification regarding the 
calculation of the date that mortgage insurance, or any functional 
equivalent, would terminate for purposes of Sec.  1026.37(c)(1)(i)(C). 
In particular, for an adjustable rate loan with a premium or discounted 
initial rate, those commenters stated that it is not clear whether 
mortgage insurance premiums would be calculated based on the actual 
interest rate or would be based on an assumption that the initial rate 
is equal to the fully-indexed rate. Several industry trade association 
commenters also noted that it is not clear what was meant by proposed 
comment 37(c)(1)(i)(C)-2, which would have provided that the 
termination of mortgage insurance should be calculated based on the 
declining principal balance that would occur as a result of changes to 
the interest rate and payment amounts, assuming the fully-indexed rate 
applies at consummation, taking into account any introductory rates. A 
small bank commenter also argued that the rule should expressly state 
that the calculation of mortgage insurance may be based on the 
estimated value of the property provided by the consumer and loan 
amount, since appraised values may differ significantly from estimates.
    For the reasons discussed in the proposed rule and below, the 
Bureau is adopting Sec.  1026.37(c)(1)(i) and its commentary as 
proposed, with the following revisions and clarifications.
    First, the final rule contains an additional cross-reference to the 
exceptions from the general rule that the events described in Sec.  
1026.37(c)(1)(i)(A) through (D) require disclosure of additional 
separate periodic payments or ranges of payments. As noted above, 
proposed Sec.  1026.37(c)(1)(i) would have provided that the initial 
periodic payment or range of payments is a separate periodic payment or 
range of payments and would have specified events that require 
disclosure of additional separate periodic payments or ranges of 
payments, subject to certain exceptions in proposed Sec.  
1026.37(c)(1)(ii). However, as adopted and discussed below in the 
section-by-section analysis of Sec.  1026.37(c)(1)(iii), Sec.  
1026.37(c)(1)(iii) also contains exceptions to the general rule in 
Sec.  1026.37(c)(1)(i) regarding the disclosure of additional separate 
periodic payments or ranges of payments in cases where multiple events 
described in Sec.  1026.37(c)(1)(i) are combined and disclosed as a 
range of payments. For this reason, Sec.  1026.37(c)(1)(i), as adopted, 
contains an additional cross-reference to the exceptions in Sec.  
1026.37(c)(1)(iii). Specifically, Sec.  1026.37(c)(1)(i) provides that 
the initial periodic payment or range of payments is a separate 
periodic payment or range of payments, and specifies certain events 
that require disclosure of additional separate periodic payments or 
ranges of payments, subject to exceptions in Sec.  1026.37(c)(1)(ii) 
and (iii).
    Second, the Bureau is adding comment 37(c)(1)(i)-2, which clarifies 
the rule regarding the disclosure of the initial periodic payment or 
range of payments, in response to commenter requests for clarification 
as to whether the disclosure should be based on the actual initial 
interest rate or the fully-indexed rate, as described above. As 
adopted, comment 37(c)(1)(i)-2 clarifies that Sec.  1026.37(c)(1)(i) 
requires the creditor to disclose the initial periodic payment or range 
of payments, which is the actual periodic payment or range of payments 
that corresponds to the interest rate that will apply at consummation, 
including any initial discounted or premium interest rate. The comment 
cross-references comment 17(c)(1)-10.v for examples of discounted and 
premium rate transactions and comments 17(c)(1)-3 through 5 for 
guidance regarding whether the disclosure should reflect a buydown. The 
comment also clarifies that, if the initial periodic payment or range 
of payments may vary based on an adjustment to an index value that 
applies at consummation, Sec.  1026.37(c)(1)(i) requires that the 
disclosure of the initial periodic payment or range of payments be 
based on the fully-indexed rate disclosed under Sec.  1026.37(b)(2). 
The comment cross-references comment 37(b)(2)-1 for guidance regarding 
calculating the fully-indexed rate.
    Third, the Bureau is making adjustments to comment 37(c)(1)(i)(A)-
2, which clarifies the rule regarding the events requiring disclosure 
of additional separate periodic payments or ranges of payments due to a 
change to the periodic principal and interest payment in loans that 
contain negative amortization features. The Bureau is revising comment 
37(c)(1)(i)(A)-2 to explain that, in a loan that contains a negative 
amortization feature, periodic principal and interest payments or the 
range of such payments may change for purposes of Sec.  
1026.37(c)(1)(i)(A) at the time the negative amortization period ends 
under the terms of the legal obligation, meaning the consumer must 
begin making payments that do not result in an increase of the 
principal balance. As noted above, a large consumer advocacy group 
commenter stated that the proposed guidance could result in a 
disclosure of a separate periodic payment or range of payments at a 
time when the payment has not reached the maximum payment under the 
terms of the legal obligation. To address this concern, the comment 
clarifies that the occurrence of an event requiring disclosure of 
additional separate periodic payments or ranges of payments should be 
based on the assumption that the consumer will make payments as 
scheduled or, if applicable, elect to make the periodic payments that 
would extend the negative amortization period to the latest time 
permitted under the terms of the legal obligation. The comment further 
clarifies that the occurrence of all subsequent events requiring 
disclosure of additional separate periodic payments or ranges of 
payments should be based on this assumption, and that the table 
required by Sec.  1026.37(c) should also reflect any balloon payment 
that would result from such scheduled payments or election. The comment 
references Sec.  1026.37(c)(1)(ii)(A) for special rules regarding 
disclosure of balloon payments.
    The Bureau believes that the guidance provided in the final rule 
regarding events requiring disclosure of additional separate periodic 
payments or ranges of payments in loans that contain a negative 
amortization feature provides additional clarity for creditors while 
providing meaningful disclosure to consumers of the risks of payment 
shock associated with loans that contain negative amortization 
features. The guidance in revised comment 37(c)(1)(i)(A)-2, however, 
pertains only to the occurrence of an event requiring disclosure of 
additional separate periodic payments or ranges of payments in a loan 
with a negative amortization feature. Separate rules regarding the 
disclosure of the amount payable for principal and interest are found 
in Sec.  1026.37(c)(2)(i) and its

[[Page 79937]]

commentary, which includes a special rule for the disclosure of 
principal and interest for adjustable rate loans that contain negative 
amortization features in Sec.  1026.37(c)(2)(i)(B). For a discussion of 
this provision, see the section-by-section analysis of Sec.  
1026.37(c)(2)(i), below.
    The Bureau is also adopting clarifying adjustments to comment 
37(c)(1)(i)(A)-3, which provides guidance regarding events requiring 
disclosure of additional separate periodic payments or ranges of 
payments in loans with interest only features. That comment provides 
that, in a loan that contains an interest only feature, periodic 
principal and interest payments may change for purposes of Sec.  
1026.37(c)(1)(i)(A) when the interest only period ends, meaning the 
consumer must begin making payments that do not defer repayment of 
principal. As proposed, comment 37(c)(1)(i)(A)-3 provided that periodic 
principal and interest payments may change when the consumer must begin 
making fully amortizing periodic payments of principal and interest. 
However, the proposed comment would not have accounted for the 
possibility that a loan may require the consumer to begin making 
payments that do not defer repayment of principal, but that those 
payments may not be fully amortizing. Although the Bureau understands 
that such transactions may not be common, the Bureau, through public 
comments and stakeholder outreach prior to the proposal, received 
feedback regarding the extensive variability of credit and real estate 
transactions, and thus has revised the comment to account for such 
possibility. The Bureau believes that such periodic payment adjustments 
should be reflected as separate periodic payments or ranges of payments 
on the projected payments table in order to provide a more meaningful 
and accurate disclosure to consumers, and has revised comment 
37(c)(1)(i)(A)-3 accordingly.
    The Bureau is not providing specific guidance in Sec.  1026.37(c) 
regarding whether the periodic principal and interest disclosure should 
be based on an average 30-day month or some other measure. Under 
current Sec.  1026.17(c)(3)-1.iii, creditors may base their disclosures 
on calculation tools that assume that all months have an equal number 
of days, even if their practice is to take account of the variations in 
months for purposes of collecting interest. Because this guidance 
applies generally to the disclosures required by Sec.  1026.37, the 
Bureau does not believe it is necessary or appropriate to provide such 
guidance in Sec.  1026.37(c).
    In addition to the changes to Sec.  1026.37(c)(1)(i)(A), the Bureau 
is adding a reference to the definition of balloon payment in Sec.  
1026.37(b)(5) to Sec.  1026.37(c)(1)(i)(B) to clarify that, for 
purposes of determining the occurrence of an event requiring the 
disclosure of additional separate periodic payments or ranges of 
payments, ``balloon payment'' is defined pursuant to Sec.  
1026.37(b)(5). The Bureau is also revising comment 37(c)(1)(i)(B)-1 to 
clarify that separate rules apply to determining the existence of a 
balloon payment for purposes Sec.  1026.37(c)(1)(i) (events requiring 
disclosure of additional separate periodic payments) and to determining 
the amount of a balloon payment to disclose under Sec.  
1026.37(c)(2)(i). To clarify the distinction between the two 
provisions, the Bureau is moving guidance regarding the amount of a 
balloon payment to disclose for purposes of Sec.  1026.37(c)(2)(i) to 
comment 37(c)(2)(i)-3 and placing a cross reference to that comment in 
comment 37(c)(1)(i)(B)-1.
    The Bureau is making clarifying changes to comment 37(c)(1)(i)(C)-
1, which generally defines mortgage insurance for purposes of Sec.  
1026.37(c). As proposed, that comment would have provided that 
``mortgage insurance'' means insurance against the nonpayment of, or 
default on, and individual mortgage. As finalized, however, the comment 
provides that ``mortgage insurance or any functional equivalent'' means 
the amounts identified in Sec.  1026.4(b)(5). The Bureau believes that 
referencing the component of the finance charge in Sec.  1026.4, rather 
than adopting a new definition, will facilitate compliance for 
creditors and avoid regulatory complexity, since the definition in 
Sec.  1026.4(b)(5) is a longstanding part of Regulation Z. This change 
is consistent with the definition of ``mortgage-related obligations'' 
in the Bureau's 2013 ATR Final Rule, with Sec.  1026.37(c)(4)(ii), 
regarding the disclosure of estimated taxes, insurance, and 
assessments, described below, and with the definition of mortgage 
insurance or any functional equivalent in Sec.  1026.18(s), described 
above. Consistent with the proposal, comment 37(c)(1)(i)(C)-1 also 
clarifies that, for purposes of Sec.  1026.37(c), ``mortgage insurance 
or any functional equivalent'' includes any mortgage guarantee that 
provides coverage similar to mortgage insurance (such as a United 
States Department of Veterans Affairs or United States Department of 
Agriculture guarantee), even if not technically considered insurance 
under State or other applicable law.
    In addition, the Bureau is making clarifying adjustments to the 
headings of comments 37(c)(1)(i)(C)-2 and -3, which provide guidance 
regarding the calculation and disclosure of the date that mortgage 
insurance terminates for purposes of Sec.  1026.37(c)(1)(i), to clarify 
that the guidance in those comments applies only to the date that 
mortgage insurance terminates for purposes of Sec.  1026.37(c)(1)(i), 
and not to the amount of mortgage insurance to disclose in the table 
required by Sec.  1026.37(c). For this same reason, the Bureau is 
revising comment 37(c)(1)(i)(C)-2 to contain a cross-reference to Sec.  
1026.37(c)(2)(ii) and its commentary. The Bureau is also revising 
comment 37(c)(1)(i)(C)-2 to address commenter requests for 
clarification, described above, as to whether mortgage insurance 
termination would be calculated based on the actual interest rate or 
the fully-indexed rate.
    As adopted, comment 37(c)(1)(i)(B)-2 provides that, for purposes of 
Sec.  1026.37(c)(1)(i)(C), mortgage insurance premiums should be 
calculated based on the declining principal balance that will occur as 
a result of changes to the interest rate and payment amounts, applying 
the interest rates applicable to the transaction. Such calculation 
should take into account any initial discounted or premium interest 
rate. The comment provides an example of an adjustable rate transaction 
that has an initial discounted interest rate during an initial five-
year period. In such a transaction, the creditor makes the calculation 
using a composite rate based on the rate in effect during the initial 
five-year period and thereafter, the fully-indexed rate, unless 
otherwise required by applicable law. The comment cross references 
Sec.  1026.37(c)(2)(ii) and its commentary for guidance on calculation 
of the amount of mortgage insurance premiums to disclose on the table 
required by Sec.  1026.37(c) and cross-references comment 37(b)(2)-1 
for guidance on calculation of the fully-indexed rate.
    The Bureau has also considered other comments related to the 
disclosure of the termination of mortgage insurance, but does not 
believe the comments should be specifically addressed in the rule. With 
respect to the request for clarification as to whether the table 
requires disclosure of upfront mortgage insurance premiums, the Bureau 
notes that Sec.  1026.37(c) requires only disclosure of the 
``periodic'' payment or range of payments. Upfront mortgage insurance 
premiums are not paid on a periodic basis, and so are not required to 
be disclosed on the table required by

[[Page 79938]]

Sec.  1026.37(c). Furthermore, Sec.  1026.37(c)(2)(iii) specifies that 
the creditor discloses the maximum amount payable for mortgage 
insurance premiums corresponding to the principal and interest payment 
disclosed. Because upfront mortgage insurance premiums are not paid on 
a periodic basis, they would not be disclosed on the table required by 
Sec.  1026.37(c). For these same reasons, creditor-paid mortgage 
insurance would not be disclosed on the table required by Sec.  
1026.37(c). In addition, to the extent that creditor-paid mortgage 
insurance premiums are paid by the consumer in the form of a higher 
interest rate, those charges are disclosed on the table required by 
Sec.  1026.37(c) through the consumer's projected payments for 
principal and interest as well as in the interest rate disclosure 
required by Sec.  1026.37(b)(2). To the extent that creditor-paid 
mortgage insurance premiums are paid by the consumer in the form of 
higher origination fees, those amounts would be disclosed as 
origination charges under Sec.  1026.37(f)(1). The purpose of the 
projected payments table is to illustrate how consumers' periodic 
payments will change over time and the Bureau believes that attempting 
to disclose creditor-paid mortgage insurance premiums, which are not 
paid by the consumer on a periodic basis, on the projected payments 
table could result in consumer confusion.
    Finally, the Bureau is adopting a new Sec.  1026.37(c)(1)(i)(D), 
which describes an event that requires disclosure of additional 
separate periodic payments or ranges of payments that was not 
specifically listed in the proposed rule. As adopted, Sec.  
1026.37(c)(1)(i)(D) provides that the anniversary of the due date of 
the initial periodic payment or range of payments that immediately 
follows the occurrence of multiple events described in Sec.  
1026.37(c)(1)(i)(A) during a single year is an event that requires the 
disclosure of additional separate periodic payments or ranges payments. 
This provision clarifies the rule regarding the appropriate disclosure 
of separate periodic payments or ranges of payments in the table 
required by Sec.  1026.37(c), and is not intended to be a substantive 
change from the proposed rule. As noted below, Sec.  
1026.37(c)(1)(iii)(B), as adopted, contains a special rule regarding 
the disclosure of periodic principal and interest payments when 
multiple periodic principal and interest payments would apply during a 
single year. That section requires creditors to disclose the range of 
payments that would apply during the year in which such events occur. 
To highlight for consumers the periodic principal and interest payment 
that would apply after the year during which multiple periodic 
principal and interest payments changes occur, Sec.  
1026.37(c)(1)(i)(D) requires creditors to disclose the periodic payment 
or range of payments that would apply as of the anniversary following 
such combined range of payments as a separate periodic payment or range 
of payments. The Bureau believes this requirement assures that 
consumers are provided with a disclosure that clearly and accurately 
reflects future changes to periodic payments and clarifies the rule for 
creditors, facilitating compliance for industry. For further clarity, 
the Bureau is also adopting comment 37(c)(1)(i)(D)-1, which provides a 
cross-reference to comment 37(c)(1)(iii)(B)-1 for an example of the 
application of Sec.  1026.37(c)(1)(i)(D).
37(c)(1)(ii)
    Proposed Sec.  1026.37(c)(1)(ii) would have contained special rules 
for the disclosure of separate periodic payments or ranges of payments 
described in Sec.  1026.37(c)(1)(i). Specifically, proposed Sec.  
1026.37(c)(1)(ii) would have provided that the table required by Sec.  
1026.37(c) shall not disclose more than four separate periodic payments 
or ranges of payments. For all events requiring disclosure of 
additional separate periodic payments or ranges of payments described 
in proposed Sec.  1026.37(c)(1)(i) after the second to occur, the 
separate periodic payments or ranges of payments would have been 
disclosed as a single range of payments, subject to the special rules 
listed in proposed Sec.  1026.37(c)(1)(ii)(A) through (C).
    Proposed Sec.  1026.37(c)(1)(ii)(A) would have contained a special 
rule for final balloon payments. That section would have required that 
a final balloon payment shall always be disclosed as a separate 
periodic payment or range of payments and that, if a final balloon 
payment is disclosed, no more than three other separate periodic 
payments or ranges of payments are disclosed. Proposed comment 
37(c)(1)(ii)(A)-1 would have clarified that Sec.  1026.37(c)(1)(ii)(A) 
would have been an exception to the general rule in proposed Sec.  
1026.37(c)(1)(ii), and would have required that a balloon payment that 
is scheduled as a final payment under the terms of the legal obligation 
is always disclosed as a separate periodic payment or range of 
payments. Balloon payments that are not final payments, such as a 
balloon payment due at the scheduled recast of a loan that permits 
negative amortization, would have been disclosed pursuant to the 
general rule in proposed Sec.  1026.37(c)(1)(ii). Proposed Sec.  
1026.37(c)(1)(ii)(B) would have provided a special rule for disclosure 
of mortgage insurance premiums, requiring that the automatic 
termination of mortgage insurance, or any functional equivalent, under 
applicable law shall be disclosed as a separate periodic payment or 
range of payments only if the total number of events that require 
disclosure of additional separate periodic payments or ranges of 
payments described in Sec.  1026.37(c)(1)(i), other than the 
termination of mortgage insurance or any functional equivalent, does 
not exceed two.
    Finally, proposed Sec.  1026.37(c)(1)(ii)(C) would have provided a 
special rule for events that require disclosure of additional separate 
periodic payments or ranges of payments that occur during the same 
year. Under proposed Sec.  1026.37(c)(1)(ii)(C), if changes to periodic 
principal and interest payments described in proposed Sec.  
1026.37(c)(1)(i)(A) would have required more than one separate 
disclosure during a single year, such periodic payments would have been 
disclosed as a single range of payments.
    One large bank commenter stated that the rule should require that 
all known or scheduled periodic payment changes be disclosed to the 
consumer, rather than limiting to four the number of separate periodic 
payments or ranges of payments. That commenter argued that disclosing 
all payment changes would benefit consumers and would decrease 
creditors' risk of liability under certain State laws. Several industry 
commenters requested clarifications regarding the special rules related 
to events that require disclosure of additional separate periodic 
payments under the proposed rule. These commenters generally requested 
further guidance on how to determine the number of columns that would 
appear on the disclosure required by Sec.  1026.37(c) under certain 
specific conditions. For example, one industry trade association 
commenter requested clarification regarding proposed Sec.  
1026.37(c)(ii)(C), which would have required creditors to disclose as 
one range of payments multiple events that occur during a single year, 
and two industry trade association commenters requested clarification 
on the disclosure rules in transactions where the balloon payment is 
the final payment under the terms of the legal obligation.

[[Page 79939]]

    For the reasons discussed in the proposed rule and below, the 
Bureau is adopting Sec.  1026.37(c)(1)(ii) and its commentary 
substantially as proposed, with the following revisions and 
clarifications. First, as adopted, Sec.  1026.37(c)(1)(ii) provides 
that the table required by Sec.  1026.37(c) shall not disclose more 
than four separate periodic payments or ranges of payments and that, 
for all events requiring disclosure of additional separate periodic 
payments or ranges of payments described in Sec.  1026.37(c)(1)(i)(A) 
through (D) occurring after the third separate periodic payment or 
range of payments disclosed, the separate periodic payments or ranges 
of payments shall be disclosed as a single range of payments, subject 
to certain exceptions. The purpose of this provision is to limit to 
four the number of columns, which each reflect a separate periodic 
payments or range of payments, that appear on the table required by 
Sec.  1026.37(c) and to establish rules for how creditors disclose the 
periodic payments or ranges of payments if the total number of columns 
would otherwise exceed four. Whereas proposed Sec.  1026.37(c)(1)(ii) 
would have referred to all events requiring disclosure of additional 
separate periodic payments or ranges of payments ``after the second to 
occur'' when describing how a creditor discloses the periodic payments 
or ranges of payments if the total number of columns would otherwise 
exceed four, the final rule refers to the actual disclosed periodic 
payments or ranges of payments. The Bureau is making this change from 
the proposed rule in response to commenter requests for clarification, 
described above. The Bureau believes that Sec.  1026.37(c)(1)(ii), as 
adopted, provides clearer guidance for creditors regarding the 
disclosure of periodic payments or ranges of payments in transactions 
where the total number of columns that appear on the table required by 
Sec.  1026.37(c) would otherwise exceed four.
    Second, the final rule makes certain clarifying changes to Sec.  
1027.37(c)(1)(ii)(A). As adopted, Sec.  1026.37(c)(1)(ii)(A) provides 
an exception to the general rule in Sec.  1026.37(c)(1)(ii) for 
transactions with a ``balloon payment scheduled as a final payment.'' 
Whereas proposed Sec.  1026.37(c)(1)(ii)(A) would have referred to a 
``final balloon payment,'' the final rule refers to a ``balloon payment 
that is a final payment under the terms of the legal obligation.'' The 
Bureau believes this formulation more clearly conveys that the 
provision relates to balloon payments that are the last scheduled 
payment under the terms of the legal obligation, rather than the last 
balloon payment to occur in a series of balloon payments. In addition, 
Sec.  1026.37(c)(1)(ii)(A), as adopted, contains instructions on how to 
disclose events that require disclosure of additional separate periodic 
payments or ranges of payments in transactions with balloon payments 
scheduled as the final payment and where the rule would otherwise 
require disclosure of more than four columns on the table required by 
Sec.  1026.37(c). In particular, the final rule provides that, in such 
a case, all events requiring disclosure of additional separate periodic 
payments or ranges of payments described in Sec.  1026.37(c)(1)(i)(A) 
through (D) occurring after the second separate periodic payment or 
range of payments disclosed, other than the final balloon payment, 
shall be disclosed as a single range of payments. The Bureau is adding 
this language to Sec.  1026.37(c)(1)(ii)(A) in response to commenter 
requests for clarification regarding the number of columns that would 
appear on the disclosure required by Sec.  1026.37(c) in transactions 
where the balloon payment is scheduled as the final payment, which are 
described above. The Bureau believes that Sec.  1026.37(c)(1)(ii)(A), 
as adopted, provides additional clarity to creditors regarding 
disclosure of periodic payments in transactions with balloon payments 
scheduled as the final payment under the terms of the legal obligation. 
Comment 37(c)(1)(ii)(A)-1, as adopted, also explains that a balloon 
payment that is a final payment is disclosed as a single payment and is 
not combined with other changes to periodic principal and interest 
payments and disclosed as a range. For further clarity, the Bureau is 
adopting comment 37(c)(1)(ii)(A)-2, which provides an example of the 
application of the special rule in Sec.  1026.37(c)(1)(ii)(A). The 
example provided in comment 37(c)(1)(ii)(A)-2 clarifies that, although 
the balloon payment that is scheduled as the final payment under the 
terms of the legal obligation occurs after the third separate periodic 
payment or range of payments, the creditor discloses the final balloon 
payment as a separate event requiring disclosure of additional periodic 
payments or range of payments in the fourth column, and discloses the 
payment or range of payments that would apply after the second and 
third interest rate adjustments as a single range of payments in the 
third column. In contrast, if the final rule did not contain the 
special rule in Sec.  1026.37(c)(1)(ii)(A), the creditor would have 
been required to disclose in the first column the initial periodic 
payment or range of payments, in the second column the periodic payment 
or range of payments that would apply after the first interest rate 
adjustment, in the third column the periodic payment or range of 
payments that would apply after the second interest rate adjustment, 
and in the fourth column the periodic payment or range of payments that 
would apply after the third and final interest rate adjustment through 
the final balloon payment as a single range of payments. The Bureau 
believes that the information regarding the final balloon payment will 
be more useful to consumers when disclosed as a separate payment, 
because it will make the fact that a final balloon payment exists and 
the amount of the final balloon payment more easily visible by 
consumers, and thus, is adopting the special rule under Sec.  
1027.37(c)(1)(ii)(A) substantially as proposed, with the clarifying 
changes described above.
    Third, as adopted, Sec.  1026.37(c)(1)(ii)(B) provides that the 
automatic termination of mortgage insurance or any functional 
equivalent under applicable law shall require disclosure of an 
additional separate periodic payment or range of payments only if the 
total number of separate periodic payments or ranges of payments 
otherwise disclosed pursuant Sec.  1026.37(c)(1) does not exceed three. 
The purpose of this provision is to provide an exception to the general 
rule in Sec.  1026.37(c)(1)(ii) regarding the disclosure of a range of 
payments for each event occurring after the third separate periodic 
payment or range of payments disclosed. Whereas proposed Sec.  
1026.37(c)(1)(ii)(B) would have referred to the number of ``events 
requiring disclosure of additional separate periodic payments'' in 
describing how to disclose mortgage insurance in transactions that 
would otherwise require more than four columns in the table required by 
Sec.  1026.37(c), the final rule refers to the actual disclosure of 
additional separate periodic payments or ranges of payments. The Bureau 
believes that Sec.  1026.37(c)(1)(ii)(B), as adopted, provides clearer 
guidance for creditors regarding disclosure of periodic payments or 
ranges of payments in transactions where mortgage insurance is required 
to be disclosed and where the total number of columns in the table 
required by Sec.  1026.37(c) would otherwise exceed four.
    In response to commenter requests for additional clarification 
regarding the

[[Page 79940]]

disclosure of mortgage insurance termination, the Bureau is also 
finalizing a new comment 37(c)(1)(ii)(B)-1, which did not appear in the 
proposed rule. As adopted, that comment explains that Sec.  
1026.37(c)(1)(ii)(B) is an exception to the general rule in Sec.  
1026.37(c)(1)(ii), and requires that the automatic termination of 
mortgage insurance under applicable law is disclosed as a separate 
periodic payment or range of payments only if the total number of 
separate periodic payments or ranges of payments otherwise disclosed 
does not exceed three. The comment further clarifies that where the 
automatic termination of mortgage insurance under applicable law is not 
disclosed as a separate periodic payment or range of payments, the 
absence of a required mortgage insurance payment is disclosed with the 
next disclosed event requiring disclosure of additional separate 
periodic payments or ranges of payments, as applicable. For further 
clarification, the Bureau is also adopting new comment 37(c)(1)(ii)(B)-
2, which provides two examples of the application of the special rule 
regarding the disclosure of the automatic termination of mortgage 
insurance.
    The Bureau is not adopting Sec.  1026.37(c)(1)(ii)(C). As proposed, 
Sec.  1026.37(c)(1)(ii)(C) would have provided, as an exception to the 
general rule in Sec.  1026.37(c)(1)(ii), that if changes to periodic 
principal and interest payments would require more than one separate 
disclosure of additional separate periodic payments or ranges of 
payments during a single year, such periodic payments shall be 
disclosed as a single range of payments. The Bureau believes that the 
language in proposed Sec.  1026.37(c)(1)(ii)(C) would provide clearer 
guidance to creditors if located in Sec.  1026.37(c)(1)(iii), which 
generally provides rules regarding the disclosure of a range of 
payments in the table required by Sec.  1026.37(c). See the section-by-
section analysis of Sec.  1026.37(c)(1)(iii), below, for additional 
discussion of proposed Sec.  1026.37(c)(1)(ii)(C).
    Finally, the Bureau has considered the comment requesting that all 
scheduled periodic payment changes be disclosed to the consumer, rather 
than limiting the amount to four, but declines to adopt such a 
requirement. The Bureau's consumer testing indicates that consumers are 
generally able to evaluate the payment changes that will occur over the 
life of the loan using the projected payments table that is limited to 
four columns. Kleimann Quantitative Study Report at 55-56. Moreover, 
the Bureau believes that a requirement to disclose all future periodic 
payment changes would result in information overload to consumers.
37(c)(1)(iii)
    Proposed Sec.  1026.37(c)(1)(iii) would have provided rules for the 
disclosure of ranges of payments. Under the proposed rule, a range of 
payments would have been disclosed when the periodic principal and 
interest payment may adjust based on index rates at the time an 
interest rate adjustment may occur or multiple events are combined in a 
range of payments pursuant to proposed Sec.  1026.37(c)(1)(ii). When a 
range of payments is required, the creditor would have been required to 
disclose the minimum and maximum possible payment amount for both the 
principal and interest payment under proposed Sec.  1026.37(c)(2)(i) 
and the total periodic payment under proposed Sec.  1026.37(c)(2)(iv). 
In the case of an interest rate adjustment, the maximum payment amounts 
would have been determined by assuming that the interest rate in effect 
throughout the loan term is the maximum possible interest, and the 
minimum payment amounts would have been determined by assuming that the 
interest rate in effect throughout the loan term is the minimum 
possible interest rate.
    Proposed comment 37(c)(1)(iii)-1 would have clarified that a range 
of payments must be disclosed when the periodic principal and interest 
payments are not known at the time the disclosure is provided because 
they are subject to changes based on index rates at the time of an 
interest rate adjustment or when multiple events are disclosed as a 
range of payments pursuant to proposed Sec.  1026.37(c)(1)(ii). For 
such transactions, proposed Sec.  1026.37(c)(3)(iii) would have 
required the creditor to disclose both the minimum and maximum periodic 
principal and interest payments, expressed as a range. In disclosing 
the maximum possible interest rate for purposes of Sec.  1026.37(c), 
the creditor would have assumed that the interest rate will rise as 
rapidly as possible after consummation, taking into account the terms 
of the legal obligation, including any applicable caps on interest rate 
adjustments and lifetime interest rate cap. For a loan with no lifetime 
interest rate cap, the maximum rate would have been determined by 
reference to other applicable laws, such as State usury law. In 
disclosing the minimum possible interest rate for purposes of Sec.  
1026.37(c), the creditor would have assumed that the interest rate will 
decrease as rapidly as possible after consummation, taking into account 
any introductory rates, caps on interest rate adjustments, and lifetime 
interest rate floor. For an adjustable rate mortgage based on an index 
that has no lifetime interest rate floor, the minimum interest rate 
would have been equal to the margin. Proposed comment 37(c)(1)(iii)-2 
would have clarified that, when a range of payments is required, the 
amount required to be disclosed for mortgage insurance premiums 
pursuant to proposed Sec.  1026.37(c)(2)(ii) and the amount payable 
into escrow pursuant to proposed Sec.  1026.37(c)(2)(iii) shall not be 
disclosed as a range. Proposed comment 37(c)(1)(iii)-3 would have 
provided guidance to creditors on the disclosure of ranges of payments 
in adjustable rate mortgages.
    As noted above, several industry trade association commenters 
requested that the final rule provide further clarification and 
guidance on the disclosure of periodic payments or ranges of payments 
when multiple events requiring disclosure of additional separate 
periodic payments or ranges of payments occur during the same year. The 
Bureau has considered these comments and, for the reasons discussed in 
the proposed rule and below, is adopting Sec.  1026.37(c)(1)(iii) and 
its commentary substantially as proposed, with the following revisions 
and clarifications.
    First, the Bureau has restructured the introductory language to 
Sec.  1026.37(c)(1)(iii) to first provide the general rule that when a 
range of payments is required to be disclosed under Sec.  
1026.37(c)(1), the creditor must disclose the minimum and maximum 
amount for both the principal and interest payment under Sec.  
1026.37(c)(2)(i) and the total periodic payment under Sec.  
1026.37(c)(2)(iv). The rule then provides a list of when a range of 
payments is required to be disclosed under Sec.  1026.37(c)(1). The 
introductory language to Sec.  1026.37(c)(1)(iii), as adopted, does not 
contain substantive changes from the proposed rule, but is revised for 
clarity.
    Second, the final rule adds Sec.  1026.37(c)(1)(iii)(A). As 
adopted, that section provides that a range of payments is required to 
be disclosed when multiple events described in Sec.  1026.37(c)(1)(i) 
are combined in a single range of payments pursuant to Sec.  
1026.37(c)(1)(ii), as described above. This language is adopted from 
proposed Sec.  1026.37(c)(1)(iii) and does not contain substantive 
changes from the proposed rule.
    Third, the final rule adds Sec.  1026.37(c)(1)(iii)(B). As adopted, 
that section provides that a range of payments is required to be 
disclosed

[[Page 79941]]

when multiple events described in Sec.  1026.37(c)(1)(i)(A) occur 
during a single year or an event described in Sec.  1026.37(c)(1)(i)(A) 
occurs during the same year as the initial periodic payment or range of 
payments, in which case the creditor discloses the range of payments 
that would apply during the year in which the events occur. This 
provision is adopted from proposed Sec.  1026.37(c)(1)(ii)(C), which 
would have provided that if changes to periodic principal and interest 
payments described in Sec.  1026.37(c)(1)(i)(A) would require more than 
one separate disclosure during a single year, such periodic payments 
shall be disclosed as a single range of payments. As discussed above, 
the Bureau believes that the rule that would have appeared in proposed 
Sec.  1026.37(c)(1)(ii)(C) would provide clearer guidance to creditors 
if placed in Sec.  1026.37(c)(1)(iii), which generally provides rules 
regarding the disclosure of a range of payments in the table required 
by Sec.  1026.37(c). The final rule also contains additional language 
in Sec.  1026.37(c)(1)(iii)(B) to clarify that changes to periodic 
principal and interest payments that occur during the first year of the 
loan are also combined and disclosed as a range of payments that would 
apply during the year in which the events occur. The Bureau is making 
these changes to the proposed rule in response to commenter requests 
for clarification regarding the disclosure of separate periodic 
payments or ranges of payments that occur during the same year.
    For additional clarity, the Bureau is also adopting comment 
37(c)(1)(iii)(B)-1 to provide guidance to creditors regarding the 
disclosure of separate periodic payments or ranges of payments when 
multiple events occur during a single year. That comment clarifies that 
if changes to periodic principal and interest payments would result in 
more than one separate periodic payment or range of payments in a 
single year, Sec.  1026.37(c)(1)(iii)(B) requires the creditor to 
disclose the range of payments that would apply during the year in 
which the events occur. The comment also provides an example that 
assumes a loan with a 30-year term with a payment that adjusts every 
month for the first 12 months and is fixed thereafter, where mortgage 
insurance is not required, and where no escrow account would be 
established for the payment of charges described in Sec.  
1026.37(c)(4)(ii). Under this example, the creditor discloses as a 
range of payments the initial periodic payment and the periodic payment 
that would apply after each payment adjustment during the first 12 
months and would also disclose, as an additional separate range of 
payments, the periodic principal and interest payment or range of 
payments that would apply after the payment becomes fixed. The comment 
provides a second example that assumes instead a loan with a 30-year 
term with an interest rate that provides for a payment adjustment after 
three months and after six months and is fixed thereafter, where 
mortgage insurance is not required, and where no escrow account would 
be established for the payment of charges described in Sec.  
1026.37(c)(4)(ii). Under this example, the creditor discloses as a 
range of payments the initial periodic payment and the periodic payment 
that would apply after the payment adjustment that occurs after six 
months, which represent the minimum payment and maximum payment, 
respectively, which would apply during the first year of the loan. 
Pursuant to Sec.  1026.37(c)(1)(i)(D), the creditor also discloses as 
an additional separate periodic payment or range of payments, the 
principal and interest payment that would apply after the payment 
adjustment that would apply on the anniversary of the initial periodic 
payment, which is the periodic payment that occurs after the six month 
payment adjustment.
    In addition, the final rule adds Sec.  1026.37(c)(1)(iii)(C). As 
adopted, that section provides that a range of payments is required to 
be disclosed when the periodic principal and interest payment may 
adjust based on index rates at the time an interest rate adjustment may 
occur. This language is adopted from proposed Sec.  1026.37(c)(1)(iii) 
and does not contain substantive changes from the proposed rule.
    The Bureau is not adopting proposed comment 37(c)(1)(iii)-1, which 
would have provided guidance to creditors regarding the disclosure of 
the minimum and maximum principal and interest payments in transactions 
where principal and interest payments are not known at the time the 
disclosure is provided because they are subject to changes based on 
index rates at the time of an interest rate adjustment. For clarity, 
the Bureau is providing this guidance in commentary to Sec.  
1026.37(c)(2), which is discussed below.
37(c)(2) Itemization
    Proposed Sec.  1026.37(c)(2) would have required that each separate 
periodic payment or range of payments included in the table required by 
proposed Sec.  1026.37(c) must be itemized to include the following: 
(1) the amount payable for principal and interest, labeled as 
``Principal & Interest,'' including the term ``only interest'' if the 
payment or range of payments includes any interest only payment; (2) 
the maximum amount payable for mortgage insurance premiums 
corresponding to the principal and interest payment disclosed pursuant 
to proposed Sec.  1026.37(c)(2)(i), labeled ``Mortgage Insurance''; (3) 
the amount payable into an escrow account to pay for some or all of the 
charges described in proposed Sec.  1026.37(c)(4)(ii)(A) through (E), 
labeled ``Estimated Escrow,'' including a statement that the amount 
disclosed can increase over time; and (4) the total periodic payment, 
calculated as the sum of the amounts disclosed pursuant to proposed 
Sec.  1026.37(c)(2)(i) through (iii), labeled ``Total Monthly 
Payment.'' As discussed in the Kleimann Testing Report, the Bureau's 
consumer testing indicated that consumers understand the table and can 
identify the components of their total monthly payment using this 
itemization of payments. See Kleimann Testing Report at 283.
    Proposed comment 37(c)(2)(ii)-1 would have clarified that mortgage 
insurance payments should be reflected on the disclosure required by 
proposed Sec.  1026.37(c) even if no escrow account is established for 
the payment of mortgage insurance premiums. If the consumer is not 
required to purchase mortgage insurance, the creditor would have 
disclosed the mortgage insurance premium as ``0.'' Proposed comment 
37(c)(2)(ii)-2 would have clarified that the creditor must disclose 
mortgage insurance payments pursuant to proposed Sec.  
1026.37(c)(2)(ii) on the same periodic basis that payments for 
principal and interest would have been disclosed pursuant to proposed 
Sec.  1026.37(c)(2)(i), even if mortgage insurance premiums are 
actually paid on some other periodic basis.
    The Bureau proposed to implement TILA sections 128(a)(16) and 
128(b)(4)(A) pursuant to its implementation authority under TILA 
section 105(a) and require creditors to disclose the amount of 
estimated escrow payments, as well as pursuant to its authority under 
Dodd-Frank Act section 1032(a), and, for residential mortgage loans, 
Dodd-Frank Act section 1405(b). As discussed above, TILA section 
128(a)(16) requires that, for variable-rate residential mortgage loans 
for which an escrow account will be established, the creditor must 
disclose the initial total monthly payment, including escrow payments 
for taxes and insurance. The Bureau proposed to modify this requirement 
to cover all transactions

[[Page 79942]]

subject to proposed Sec.  1026.19(e) for which an escrow account will 
be established, including fixed rate loans. Additionally, TILA section 
128(b)(4)(A) requires that, for any consumer credit transaction secured 
by a first lien on the principal dwelling of the consumer for which an 
escrow account will be established, the creditor must take into account 
escrow payments when making the disclosures required by TILA section 
128(a)(6). The Bureau also proposed to modify the scope of this 
requirement to cover all transactions subject to proposed Sec.  
1026.19(e) for which an escrow account will be established. The Bureau 
proposed these modifications pursuant to its authority to implement 
TILA sections 128(a)(16) and 128(b)(4)(A) under TILA section 105(a), as 
well as its authority under Dodd-Frank Act section 1032(a), and, for 
residential mortgage loans, Dodd-Frank Act section 1405(b). The 
proposal stated that these modifications are consistent with the 
purposes of TILA, as they may promote the informed use of credit by 
allowing consumers to more readily compare loans. Further, the proposal 
stated that applying a single disclosure rule to all transactions 
subject to proposed Sec.  1026.19(e) may ease compliance burden for 
creditors. Accordingly, the proposal stated that these modifications 
will improve consumer awareness and understanding of residential 
mortgage loans and are in the interest of consumers and the public, 
consistent with Dodd-Frank Act section 1405(b). In addition, consistent 
with section 1032(a) of the Dodd-Frank Act, the proposal noted that 
this disclosure would ensure that the features of consumer credit 
transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances.
    Further, the Bureau proposed to require creditors to disclose the 
maximum periodic payment for mortgage insurance premiums corresponding 
to the periodic principal and interest payment disclosed pursuant to 
Sec.  1026.37(c)(2)(i), separately from other escrowed amounts, 
pursuant to its authority under TILA section 105(a), Dodd-Frank Act 
section 1032(a), and, for residential mortgage loans, Dodd-Frank Act 
section 1405(b), even if no escrow account is established for the 
payment of such amounts. Current Sec.  1026.18(s) requires creditors to 
include mortgage insurance in the disclosure of the amounts required to 
be paid into escrow. However, Sec.  1026.18(s) does not require 
creditors to separately disclose payments for mortgage insurance. The 
proposal stated that the Bureau believes that consumers would benefit 
from disclosure of the periodic amount of mortgage insurance payments 
required by the creditor, and believes that consumers would benefit 
from the disclosure of any required mortgage insurance payments even if 
no escrow account for the payment of such amounts will be established. 
The proposal also stated that the Bureau believes that requiring such 
disclosure in all cases may facilitate comparison between loans and 
improve overall understanding of credit terms. Accordingly, the 
proposal stated that this requirement promotes the informed use of 
credit, will improve consumer awareness and understanding of 
transactions involving residential mortgage loans, and is in the 
interest of consumers and the public, consistent with the purpose of 
TILA and with Dodd-Frank Act section 1405(b). Further, consistent with 
section 1032(a) of the Dodd-Frank Act, the proposal stated that this 
disclosure would have ensured that the features of consumer credit 
transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances.
    In addition, the Bureau understands that some mortgage insurance 
plans are structured such that periodic mortgage insurance payments 
decrease over time. Accordingly, the Bureau proposed to require 
creditors to disclose the maximum amount payable for mortgage insurance 
premiums, or any functional equivalent, corresponding to the periodic 
principal and interest payment disclosed pursuant to proposed Sec.  
1026.37(c)(2)(i). The proposal stated that the Bureau believes this 
disclosure will enhance consumer understanding of and facilitate 
comparison between loans by more accurately reflecting the amount of 
mortgage insurance payments over time. Proposed comment 37(c)(2)(iii)-1 
would have clarified that the disclosure of taxes and insurance 
described in proposed Sec.  1026.37(c)(2)(iii) is required only if the 
creditor will establish an escrow account for the payment of the 
amounts described in proposed Sec.  1026.37(c)(4)(ii)(A) through (E), 
consistent with TILA section 128(b)(4)(A) and current Sec.  1026.18(s).
    Several industry commenters, including one large national mortgage 
lender, requested that the Bureau eliminate the proposed requirement 
that creditors disclose both the minimum and maximum payment range and, 
instead, require that future payment changes be based on maximum 
interest rates and payments only. These commenters stated that such a 
change would streamline the regulation, such as the rules for 
calculation of the date of termination of mortgage insurance. Several 
industry trade association commenters noted that proposed Sec.  
1026.37(c)(2)(iii) would not have required disclosure of estimated 
escrow if no escrow account would be established, but that the taxes, 
insurance, and assessments disclosure under Sec.  1026.37(c)(4) would 
have been required even in the absence of an escrow account. These 
commenters suggested that the requirements are inconsistent and that 
the ``estimated escrow'' payments should be included even if no escrow 
account is established so that consumers are not misled about their 
costs and can better compare Loan Estimates. Similarly, a title company 
commenter suggested that the two disclosures could be confusing if no 
escrow account is established for the payment of taxes, insurance, and 
assessments. Finally, a large mortgage origination software provider 
commenter requested that the rule specify how the lack of an escrow 
account is to be disclosed to ensure a uniform approach in the 
industry.
    For the reasons discussed in the proposed rule and below, the 
Bureau is adopting Sec.  1026.37(c)(2) and its commentary substantially 
as proposed, with the following revisions and clarifications. First, 
the Bureau is finalizing rules regarding the disclosure of minimum and 
maximum payments in loans with adjustable interest rates and loans with 
adjustable interest rates that also contain a negative amortization 
feature in Sec.  1026.37(c)(2)(i)(A) and (B). As discussed above in the 
section-by-section analysis of Sec.  1026.37(c)(1)(i), a large consumer 
advocacy group commenter stated that if a creditor were to follow the 
proposed rule for the disclosure of adjustable rate loans in the case 
of an adjustable rate loan that permits negative amortization, it would 
produce a payment that is less than the maximum payment. As described 
above, proposed Sec.  1026.37(c)(1)(iii) would have provided that the 
maximum payment amounts are determined by assuming that the interest 
rate in effect throughout the loan term is the maximum possible 
interest rate and comment 37(c)(1)(iii)-1 would have provided that the 
creditor assumes that the interest rate will rise as rapidly as 
possible after

[[Page 79943]]

consummation. The commenter noted that, in an adjustable rate loan that 
contains a negative amortization feature, the requirement in Sec.  
1026.37(c)(1)(iii) would produce a payment that is less than the 
maximum payment permitted under the terms of the legal obligation. The 
commenter argued that, in adjustable rate loans that permit negative 
amortization, the maximum payment depends on the interaction of the 
permissible amount of negative amortization, the highest interest rate, 
and the latest date at which payments become fully amortizing. For such 
loans, the commenter asserted that the maximum payment is triggered 
when the maximum interest rate is applied to the maximum loan balance 
for the shortest amortization period, which will happen when the onset 
of fully amortizing payments is delayed as long as possible. The 
commenter asserted that, for adjustable rate loans that permit negative 
amortization until a contract term triggers a switch to fully 
amortizing payments, the maximum payment should be calculated by 
applying the maximum interest rate to the maximum allowed principal 
balance for the minimum possible number of periodic payments that 
remain at the end of the time when non-amortizing payments are allowed.
    The Bureau has considered this comment and believes that additional 
guidance is necessary regarding the calculation of the maximum payment 
amount in adjustable rate loans with negative amortization features. 
Accordingly, to ensure that consumers are fully informed of the risk of 
payment increases associated with adjustable rate loans that also 
contain a negative amortization feature and to clarify the rules 
regarding the disclosure of maximum payment amounts in such loans, the 
Bureau is adopting Sec.  1026.37(c)(2)(i)(A) and (B). As adopted, Sec.  
1026.37(c)(2)(i)(A) provides that, in the case of a loan that has an 
adjustable interest rate, the maximum principal and interest payment 
amounts are determined by assuming that the interest rate in effect 
throughout the loan term is the maximum possible interest rate, and the 
minimum amounts are determined by assuming that the interest rate in 
effect throughout the loan term is the minimum possible interest rate. 
This provision is adopted from proposed Sec.  1026.37(c)(1)(iii), is 
adopted in Sec.  1026.37(c)(2)(i) for clarifying purposes only, and is 
not intended to be a substantive change to the proposed rule. By 
contrast, Sec.  1026.37(c)(2)(i)(B) provides that, in the case of a 
loan that has an adjustable interest rate and also contains a negative 
amortization feature, the maximum principal and interest payment 
amounts after the negative amortization period ends are determined by 
assuming the maximum principal amount permitted under the terms of the 
legal obligation at the end of the negative amortization period and the 
minimum amounts are determined pursuant to Sec.  1026.37(c)(2)(i)(A).
    The final rule also adopts comments 37(c)(2)(i)-1 and -2 to provide 
additional guidance to creditors on the disclosure of minimum and 
maximum payments in adjustable rate loans and adjustable rate loans 
with negative amortization features. Comment 37(c)(2)(i)-1 is generally 
adopted from proposed comment 37(c)(1)(iii)-3 and is not intended to be 
a substantive change from the proposed rule. As adopted, the comment 
provides that, for adjustable rate loans, in disclosing the maximum 
possible payment for principal and interest under Sec.  1026.37(c), the 
creditor assumes that the interest rate will rise as rapidly as 
possible after consummation, taking into account the terms of the legal 
obligation, including any applicable caps on interest rate adjustments 
and lifetime interest rate cap. The comment also provides that, for a 
loan with no lifetime interest rate cap, the maximum rate is determined 
by reference to other applicable laws, such as State usury law. In 
disclosing the minimum payment for purposes of Sec.  1026.37(c), the 
comment provides that the creditor assumes that the interest rate will 
decrease as rapidly as possible after consummation, taking into account 
any introductory rates, caps on interest rate adjustments, and lifetime 
interest rate floor. For an adjustable rate mortgage based on an index 
that has no lifetime interest rate floor, the minimum interest rate is 
equal to the margin.
    Comment 37(c)(2)(i)-2, in contrast, contains guidance on the 
special rule in Sec.  1026.37(c)(2)(i)(B) for calculation of the 
maximum principal and interest payment in an adjustable rate loan that 
contains a negative amortization feature. The comment notes that Sec.  
1026.37(c)(2)(i)(B) provides that the maximum amounts payable for 
principal and interest after the negative amortization period ends are 
calculated using the maximum principal amount permitted under the terms 
of the legal obligation at the end of the negative amortization period, 
and contains a cross-reference to Sec.  1026.37(c)(1)(i)(A) and 
associated commentary for guidance regarding when the negative 
amortization period ends for purposes of Sec.  1026.37(c). For example, 
if the maximum principal balance for the last payment in the negative 
amortization period is achieved at an interest rate that is not the 
maximum interest rate permitted under the terms of the legal obligation 
before the negative amortization period ends, future events requiring 
disclosure of additional, separate periodic payments or ranges of 
payments assume that the interest rate in effect at the end of the 
negative amortization period was such interest rate, and not the 
maximum possible interest rate. After the end of the negative 
amortization period, the general rule under Sec.  1026.37(c)(2)(i)(A) 
regarding assumptions of interest rate changes for the maximum 
principal and interest payment to be disclosed applies from such 
interest rate. The minimum payment in an adjustable rate loan that 
contains a negative amortization feature is determined pursuant to the 
general rule under Sec.  1026.37(c)(2)(i)(A). The Bureau believes that 
the guidance in comment 37(c)(2)(i)-2 regarding the calculation of the 
maximum payment amount in adjustable rate loans that contain a negative 
amortization feature ensures that consumers are informed of the risks 
of payment shock associated with such loans.
    In addition, the Bureau is adopting comment 37(c)(2)(i)-3, which is 
generally adopted from proposed Sec.  1026.37(c)(1)(i)(B)-1 and not 
intended to be a substantive change from the proposed rule. It provides 
guidance to creditors on the disclosure of balloon payment amounts on 
the table required by Sec.  1026.37(c). As adopted, comment 
37(c)(2)(i)-3 provides that although the existence of a balloon payment 
is determined pursuant to Sec.  1026.37(b)(5) and its commentary, 
balloon payment amounts to be disclosed under Sec.  1026.37(c) are 
calculated in the same manner as periodic principal and interest 
payments under Sec.  1026.37(c)(2)(i). The comment provides an example 
that, for a balloon payment amount that can change depending on 
previous interest rate adjustments that are based on the value of an 
index at the time of the adjustment, the balloon payment amounts are 
calculated using the assumptions for minimum and maximum interest rates 
described in Sec.  1026.37(c)(2)(i) and its commentary, and should be 
disclosed as a range of payments.
    The Bureau is also adopting clarifying changes to comment 
37(c)(2)(ii)-1, regarding the disclosure of mortgage insurance, in 
response to commenter requests for additional clarification. As 
proposed, that comment stated that if the consumer is not required to 
purchase mortgage insurance, the

[[Page 79944]]

creditor discloses the mortgage insurance premium as ``0.'' In response 
to commenter requests for clarification, the Bureau is revising comment 
37(c)(2)(ii)-1 to also provide that the creditor discloses the 
automatic termination of mortgage insurance and the absence of mortgage 
insurance after coverage has terminated as ``--.'' This change from the 
proposed rule is consistent with the proposed model forms in appendix 
H. As adopted, therefore, comment 37(c)(2)(ii)-1 provides that mortgage 
insurance premiums should be reflected on the disclosure required by 
Sec.  1026.37(c) even if no escrow account is established for the 
payment of mortgage insurance premiums, that if the consumer is not 
required to purchase mortgage insurance the creditor discloses the 
mortgage insurance premium as ``0,'' and that if the creditor is 
disclosing the automatic termination or the absence of mortgage 
insurance after coverage has terminated, the creditor discloses the 
mortgage insurance premium as ``--.''
    Finally, the Bureau is amending Sec.  1026.37(c)(2)(iii) and 
comment 37(c)(2)(iii)-1 for consistency with the estimated taxes, 
insurance, and assessments disclosure required by Sec.  
1026.37(c)(4)(ii), described below. As adopted, Sec.  
1026.37(c)(2)(iii) provides that the creditor must disclose the amount 
payable into an escrow account to pay some or all of the charges 
described in Sec.  1026.37(c)(4)(ii), as applicable, labeled 
``Estimated Escrow,'' together with a statement that the amount 
disclosed can increase over time. To increase the clarity of the rule, 
the Bureau is deleting the word ``Estimated'' from the label required 
under Sec.  1026.37(c)(2)(iii) so that the label is revised to 
``Escrow,'' because the word ``Estimated'' is incorporated into the 
label by the rule in Sec.  1026.37(o)(2). The word ``Estimated'' is 
also incorporated into the label by Sec.  1026.38(t)(2) for the table 
required on the Closing Disclosure under Sec.  1026.38(c). Comment 
37(c)(2)(iii)-1 provides that the escrow disclosure described in Sec.  
1026.37(c)(2)(iii) is required only if the creditor will establish an 
escrow account for the payment of some or all of the charges described 
in Sec.  1026.37(c)(4)(ii) and that, if no escrow account for the 
payment of some or all such charges will be established, the creditor 
discloses the mortgage insurance premium as ``0.'' These changes are 
technical, for consistency with the final rule regarding the disclosure 
of estimated taxes, insurance, and assessments required by Sec.  
1026.37(c)(4)(ii), and are not intended to be substantive changes from 
the proposed rule. In addition, the Bureau is modifying the design of 
the statement that the amount can increase over time, required by Sec.  
1026.37(c)(2)(iii) as illustrated by form H-24 of appendix H to 
Regulation Z (discussed in more detail in section-by-section analysis 
of appendix H below). The revised design uses a sentence capitalization 
structure for increased readability. In both the Bureau's pre-proposal 
qualitative consumer testing and the Quantitative Study, consumers were 
able to use the Loan Estimate, including the Projected Payments and 
Loan Terms tables, to understand their transactions and compare loans, 
including information about their monthly payments. See Kleimann 
Testing Report at 277-279 and 282-284; see also Kleimann Quantitative 
Study Report at 55-56.
37(c)(3) Subheadings
    Proposed Sec.  1026.37(c)(3)(i) would have provided that the labels 
required pursuant to Sec.  1026.37(c)(2) must be listed under the 
subheading ``Payment Calculation.'' Proposed Sec.  1026.37(c)(3)(ii) 
would have provided that each separate, itemized periodic payment or 
range of payments to be disclosed under Sec.  1026.37(c) must be 
disclosed under a subheading that states the number of years of the 
loan during which that payment or range of payments will apply and that 
those subheadings must be stated in a sequence of whole years from the 
date that the first such payment is due. Proposed comment 37(c)(3)(ii)-
1 would have provided additional guidance on the disclosure of the 
number of years of the loan during which the payment or range of 
payments will apply, and proposed comment 37(c)(3)(ii)-2 would have 
provided guidance on disclosure of the years of the loan for 
transactions with variable terms, such as transactions where the loan 
term may increase based on an adjustment of the interest rate.
    Several industry commenters requested clarification regarding the 
disclosure of the number of years of the loan during which the payment 
or range of payments will apply. Several industry commenters, including 
industry trade associations and a large credit union, argued that the 
rule should permit creditors to disclose the number of months or months 
and years during which the payment or range of payments will apply, in 
order to accommodate situations where the payments or ranges of 
payments do not equate to whole years. One large provider of mortgage 
origination software suggested that the final rule should provide 
additional guidance on disclosing ``years'' in construction-only loans 
with terms of less than one year.
    Another industry commenter noted the difference between the 
definition of year in proposed Sec.  1026.37(b) and Sec.  1026.37(c). 
That commenter noted that it may be confusing to consumers to see the 
rate and payment adjustment occurring during different years, and that 
keeping track of multiple definitions would increase compliance burden. 
One law firm commenter, on behalf of a mortgage origination software 
provider commenter, noted that proposed form H-24(E) would have used 
the term ``final payment'' in the final column for a loan with a 
balloon payment as a final payment, but that there is no direct 
authorization in proposed rule for such a subheading. That commenter 
requested clarification regarding the use of ``final payment'' as a 
subheading. That commenter also suggested that the rule provide 
specific guidance about subheadings in construction-to-permanent loans. 
That commenter suggested that the construction phase of a construction-
to-permanent loan should be identified using a unique column heading, 
such as ``construction phase.''
    For the reasons discussed in the proposed rule and below, the 
Bureau is adopting Sec.  1026.37(c)(3) and its commentary substantially 
as proposed, with the following revisions and clarifications. First, 
the final rule contains several changes to Sec.  1026.37(c)(3)(ii) in 
response to commenter requests for clarification regarding the 
disclosure of the number of years of the loan during which the payment 
or range of payments will apply. To provide additional clarity to 
creditors and to ensure that consumers receive a disclosure that 
clearly and accurately discloses future changes to their periodic 
payments, Sec.  1026.37(c)(3)(ii), as adopted, provides that, except as 
provided in Sec.  1026.37(c)(3)(iii) (which contains a special rule for 
the subheadings required for the disclosure of balloon payments that 
are final payments), each separate periodic payment or range of 
payments to be disclosed under Sec.  1026.37(c) must be disclosed under 
a subheading that states the years of the loan during which that 
payment or range of payments will apply. The subheadings must be stated 
in a sequence of whole years from the due date of the initial periodic 
payment. As proposed, Sec.  1026.37(c)(3)(ii) would have provided that 
the subheadings must be stated in a sequence of whole years from the 
``date that the first such payment is due.'' Although Sec.  
1026.37(c)(3)(ii), as adopted, would not alter the disclosure

[[Page 79945]]

provided for in the proposed rule when an event requiring disclosure of 
additional separate periodic payments or ranges of payments occurs on 
the anniversary of the due date of the initial periodic payment, the 
final rule does result in a different disclosure when such an event 
occurs on a date other than the anniversary of the due date of the 
initial periodic payment. Under the proposed rule, the periodic payment 
that would have applied after an event requiring disclosure of 
additional separate periodic payments or ranges of payments that 
occurred on a date other than the anniversary of the initial periodic 
payment may not have been fully disclosed to the consumer.
    An example in proposed comment 37(c)(3)(ii)-1 explains this result. 
That comment would have provided, among other examples, that in a loan 
with a 30-year term that requires interest only payments for the first 
54 months then requires fixed fully amortizing payments of principal 
and interest for the duration of the loan and that requires mortgage 
insurance that would automatically terminate under applicable law after 
the 100th month, the creditor would label the first disclosure of 
periodic payments or range of payments as ``Years 1-4,'' the second 
disclosure of periodic payments or range of payments as ``Years 5-8,'' 
and the third disclosure of periodic payments or ranges of payments as 
``Years 9-30.'' Under this formulation of the rule, the consumer's 
required mortgage insurance payments would have continued until month 
100 of the loan, which occurs during the ninth year, but would have 
been disclosed as continuing only until year eight of the loan. Under 
Sec.  1026.37(c)(3)(ii) as adopted, however, the creditor would label 
the first disclosure of periodic payments as ``Years 1-5,'' the second 
disclosure of periodic payments or range of payments as ``Years 6-9,'' 
and the third disclosure of periodic payments or range of payments as 
``Years 10-30.'' Under this formulation of the rule, the consumer's 
required mortgage insurance payments are disclosed as continuing 
through the ninth year of the loan.
    The Bureau believes the approach in the final rule ensures that 
consumers receive a disclosure that clearly and accurately discloses 
future changes to periodic payments, while providing clarity to 
creditors regarding the disclosure rules for events that require 
disclosure of additional separate periodic payments or ranges of 
payments that occur on a date other than the anniversary of the due 
date of the initial periodic payment. The final rule also amends 
comment 37(c)(3)(ii)-1 to provide additional clarity to creditors and 
to conform to amended Sec.  1026.37(c)(3)(ii). As adopted, comment 
37(c)(3)(ii)-1 clarifies that if an event requiring the disclosure of 
an additional separate periodic payment or range of payments occurs on 
a date other than the anniversary of the due date of the initial 
periodic payment, because the previous separate periodic payments or 
range of payments will apply during that year, such event is disclosed 
beginning in the next year in the sequence. The final rule also amends 
the examples in that comment and provides an additional example of 
disclosure of the years of the loan in a fixed rate loan with a term of 
124 months, in response to commenter requests for clarification 
regarding the proper disclosure of a loan with a term that does not end 
on the anniversary of the due date of the initial periodic payment.
    The Bureau has considered the comments requesting that the 
disclosure required by Sec.  1026.37(c) state the months, rather than 
years, of the loan during which the periodic payment or range of 
payments will apply. However, the Bureau believes consumers evaluating 
future payments over the life of their loan would benefit from a 
disclosure that states projected payments in years, which is a time-
horizon that is readily understandable by consumers considering their 
payments over the typical life of a loan, and that disclosing payments 
in months could detract from consumers' ability to fully understand 
future payment changes. The Bureau's consumer testing indicated that 
the Projected Payments table, which stated the changes in a sequence of 
whole years, enabled consumers to evaluate the risks associated with 
payment changes over time. See Kleimann Testing Report at 282-3. In 
addition, the Bureau's Quantitative Study concludes that consumer 
participants using the integrated disclosures performed statistically 
significantly better than consumer participants using the current 
disclosures at answering questions about their monthly payments, 
including questions about how the monthly payment change would change 
over time. See Kleimann Quantitative Study Report at 55-56. The Bureau 
also believes that the final rule provides clear guidance to creditors 
on the disclosure rules for loans where the number of months of the 
loan do not equate to whole years and where an event requiring 
disclosure of additional separate periodic payments or ranges of 
payments occurs on a date other than the anniversary of the due date of 
the initial periodic payment or range of payments.
    The Bureau has also considered commenters' concerns regarding the 
differing disclosure rules that were proposed to apply to the dates of 
future periodic payment and interest rate changes under proposed Sec.  
1026.37(b)(6) and (7) and the rules that would have applied to future 
periodic payment changes under proposed Sec.  1026.37(c). As discussed 
above, proposed Sec.  1026.37(b)(8) would have provided that the dates 
required to be disclosed by Sec.  1026.37(b)(6) (adjustments after 
consummation) and (7) (details about prepayment penalty and balloon 
payments) would have been disclosed as the year in which the date 
occurs, counting from the date that the interest for the first 
scheduled periodic payment begins to accrue after consummation, whereas 
``year,'' for purposes of Sec.  1026.37(c) would have been defined as 
the twelve-month interval beginning on the due date of the first 
periodic payment. The Bureau acknowledges that consistent definitions 
would benefit consumers through a uniform disclosure and would benefit 
creditors by easing compliance burdens. However, the Bureau believes 
that different timing requirements are appropriate for disclosures that 
pertain to the timing of interest rate changes versus periodic payment 
changes. For future interest rate changes, the disclosure is properly 
counted from the date that interest for the first scheduled periodic 
payment begins to accrue after consummation. With respect to the timing 
of future changes to periodic payments, such as the disclosures 
required by Sec.  1026.37(c), however, the Bureau believes the 
disclosure is properly based on the due date of the initial periodic 
payment because the purpose of the disclosure is to provide consumers 
with information about future periodic payment changes, which will not 
take effect until after a future interest rate change takes effect. For 
this reason and for the reasons discussed above in the section-by-
section analysis of Sec.  1026.37(b)(8), the Bureau is revising, for 
consistency with Sec.  1026.37(c)(3), the timing requirement in Sec.  
1026.37(b)(8) with respect to the disclosures required by Sec.  
1026.37(b)(6)(i), (b)(6)(iii), and (b)(7), which pertain to future 
changes to periodic payments for principal and interest, but is 
retaining the timing requirement in Sec.  1026.37(b)(8) with respect to 
the disclosure required by Sec.  1026.37(b)(6)(ii), which pertains to 
the

[[Page 79946]]

timing of future interest rate adjustments.
    Finally, the Bureau has considered the commenter suggestion that 
the construction phase of a construction-to-permanent loan should 
receive a unique column heading. However, the Bureau declines to adopt 
such a requirement in the final rule. The Bureau understands that 
consumers' periodic payments for principal and interest during the 
construction phase of a construction-to-permanent loan generally differ 
from the payment that applies during the permanent phase of the loan, 
because these loans are typically structured as loans with interest 
only introductory periods. The periodic principal and interest change 
that occurs at the time the loan converts from the construction phase 
to the permanent phase of the loan is an event that requires disclosure 
of additional separate periodic payments or ranges of payments pursuant 
to Sec.  1026.37(c)(1)(i)(A). Therefore, the different payment amounts 
will be disclosed to consumers as two separate periodic payments or 
ranges of payments. The purpose of the projected payments table is to 
provide consumers with a broad understanding of how their periodic 
payments will change over time, and is not designed to provide 
consumers with details about the reasons for those changes, so the 
Bureau does not believe it is appropriate to provide special 
subheadings for the construction phase of a construction-to-permanent 
loan in the table required by Sec.  1026.37(c). Providing such 
additional information in the projected payments table could result in 
information overload for consumers. Furthermore, the transaction will 
be disclosed as a ``construction'' loan under the ``General 
Information'' portion of the Loan Estimate pursuant to Sec.  
1026.37(a)(9)(iii), discussed above.
37(c)(4) Taxes, Insurance, and Assessments
    As discussed above, the Bureau proposed to require creditors in 
transactions subject to proposed Sec.  1026.19(e) to disclose estimated 
payments to escrow accounts, implementing TILA sections 128(a)(16), 
128(b)(4)(A) pursuant to its implementation authority under TILA 
section 105(a), and pursuant to its authority under Dodd-Frank Act 
section 1032(a), and, for residential mortgage loans, Dodd-Frank Act 
section 1405(b). The Bureau also proposed Sec.  1026.37(c)(4) pursuant 
to this authority. Proposed Sec.  1026.37(c)(4)(i) would have provided 
that creditors must disclose the label ``Estimated Taxes, Insurance & 
Assessments.'' Proposed Sec.  1026.37(c)(4)(ii) would have required 
creditors to disclose the sum of property taxes, mortgage-related 
insurance premiums required by the creditor other than amounts payable 
for mortgage insurance premiums, homeowner's association, condominium 
or cooperative fees, ground rent or leasehold payments, and special 
assessments, as applicable, expressed as a monthly amount. The creditor 
would have been required to disclose this amount even if no escrow 
account for the payment of some or any such charges will be 
established. Proposed comments 37(c)(4)(ii)-1 and -2 would have 
provided guidance to creditors on the meaning of mortgage-related 
insurance premiums and special assessments.
    Proposed Sec.  1026.37(c)(4)(iii) would have required creditors to 
state that the amount disclosed pursuant to Sec.  1026.37(c)(4)(ii) can 
increase over time. Proposed Sec.  1026.37(c)(4)(iv) would have 
required creditors to state whether the amount disclosed pursuant to 
Sec.  1026.37(c)(4)(ii) includes payments for property taxes, hazard 
insurance, and other amounts described in proposed Sec.  
1026.37(c)(4)(ii), along with a description of any such amounts, and an 
indication of whether such amounts will be paid by the creditor using 
escrow account funds. Proposed Sec.  1026.37(c)(4)(v) would have 
required creditors to provide a statement that the consumer must pay 
separately any amounts described in proposed Sec.  1026.37(c)(4)(ii) 
that are not paid by the creditor using escrow funds. Finally, proposed 
Sec.  1026.37(c)(4)(vi) would have required creditors to provide a 
reference to the information disclosed pursuant to Sec.  1026.37(g)(3).
    Under proposed Sec.  1026.37(c)(4), the disclosure of estimated 
taxes, insurance, and assessments would have been required even where 
no escrow account will be established for the payment of some or any 
such amounts. The Bureau proposed this requirement pursuant to its 
authority under TILA section 105(a), Dodd-Frank Act section 1032(a), 
and, for residential mortgage loans, Dodd-Frank Act section 1405(b). As 
discussed in the Kleimann Testing Report, consumer testing indicates 
that consumers view the total monthly payment amount as a key piece of 
information and look for this amount when shopping for mortgage loans. 
See Kleimann Testing Report at xxiv, 282, and 285. The proposal noted 
that, even when no escrow account is established for the payment of 
taxes and insurance, the Bureau believes that this is an important 
measure of the consumer's ability to afford the transaction. For this 
reason, the proposal stated that the Bureau believes that consumers 
would benefit from the disclosure of the amounts that will be required 
to be paid for taxes, insurance, and assessments, even if no escrow 
account will be established for the payment of such amounts. Absent 
such a disclosure, consumers may not fully comprehend the cost of their 
home loan on a periodic basis, and may not be as readily able to 
compare credit terms and make an informed decision about whether to 
proceed with the transaction. Accordingly, the proposal stated that the 
Bureau believes this modification is consistent with the purpose of 
TILA to promote the informed use of credit, and will improve consumer 
awareness and understanding of residential mortgage loans and is in the 
interest of consumers and the public, consistent with Dodd-Frank Act 
section 1405(b). In addition, consistent with section 1032(a) of the 
Dodd-Frank Act, the proposal noted that this disclosure would ensure 
that the features of consumer credit transactions secured by real 
property are fully, accurately, and effectively disclosed to consumers 
in a manner that permits consumers to understand the costs, benefits, 
and risks associated with the product or service, in light of the facts 
and circumstances.
    One large consumer advocacy commenter stated that the proposal to 
require creditors to disclose the amount payable for estimated taxes, 
insurance, and assessments even if no escrow account for the payment of 
such amounts would be established is an extremely important disclosure 
for consumers. That commenter noted that, without this information, it 
would be difficult to assess whether a transaction is affordable and 
that disreputable creditors have, in the past, used the absence of such 
a requirement to deceive consumers into believing a new loan was more 
affordable than existing loans or to confuse comparison of competing 
offers. Several industry commenters requested clarification on certain 
requirements of Sec.  1026.37(c)(4). For example, several industry 
trade association commenters requested clarification regarding whether 
``mortgage-related insurance premiums required by the creditor, other 
than amounts payable for mortgage insurance'' under proposed Sec.  
1026.37(c)(4)(ii)(B) has the same meaning as ``homeowner's insurance'' 
under proposed Sec.  1026.37(c)(4)(iv). Similarly, a title company 
commenter suggested that the word ``assessments'' has different 
meanings and may cause confusion for consumers. Several

[[Page 79947]]

industry trade association commenters also requested additional 
guidance regarding the requirement under proposed Sec.  
1026.37(c)(4)(iv) that the creditor disclose a description of amounts 
required to be disclosed by Sec.  1026.37(c)(4)(ii). Industry trade 
associations also requested clarification regarding the type and 
amounts of charges that should be disclosed Sec.  1026.37(c)(4)(iv).
    A national trade association representing community associations 
requested that the rule limit the information creditors request 
regarding assessment and other association-related information for 
purposes of filling out the Loan Estimate, due to concerns that 
requests for complete information on assessments and related charges 
could result in additional costs to buyers and sellers and additional 
liability for community associations. Alternatively, that commenter 
suggested that the rule permit creditors to rely on information 
regarding homeowner's association assessments and other charges 
provided by the buyer or seller when preparing the Loan Estimate. 
Several industry commenters suggested that the rule not require 
disclosure of amounts required to be paid to homeowner's associations.
    Several industry commenters also requested specific guidance on the 
disclosure of estimated taxes, insurance, and assessments in the case 
of subordinate liens, noting that escrow accounts are rarely 
established for subordinate liens and that requiring disclosure of 
estimated taxes, insurance, and assessments would duplicate the 
information disclosed for a first lien. Finally, a large mortgage 
origination software provider and a large bank commenter requested 
further guidance on how a creditor would disclose amounts required to 
be disclosed by proposed Sec.  1026.37(c)(4)(ii) other than payments 
for property taxes and homeowner's insurance if some items would be 
paid using escrow account funds and others would be paid directly by 
the consumer.
    For the reasons discussed in the proposed rule and below, the 
Bureau is adopting Sec.  1026.37(c)(4) and its commentary substantially 
as proposed, with the revisions and clarifications described below. The 
Bureau is revising Sec.  1026.37(c)(4)(ii) to provide that the creditor 
must disclose the sum of the charges described in Sec.  1026.43(b)(8), 
other than amounts identified in Sec.  1026.4(b)(5), expressed as a 
monthly amount, even if no escrow account for the payment of some or 
any such charges will be established. As described above, the proposed 
rule contained a list of specific types of charges in Sec.  
1026.37(c)(ii)(A)-(E), the sum of which the creditor should disclose 
pursuant to Sec.  1026.37(c)(4)(ii), and specifically excluded amounts 
payable for mortgage insurance premiums. The Bureau's proposed Sec.  
1026.37(c)(4)(ii) was substantially similar to the proposed definition 
of ``mortgage-related obligations'' in the Board's 2011 ATR Proposal, 
except that proposed Sec.  1026.37(c)(4)(ii) would not have included 
amounts payable for mortgage insurance premiums. To address concerns 
and feedback, the Bureau's 2013 ATR Final Rule adopted a modified 
definition of mortgage-related obligations in Sec.  1026.43(b)(8) by 
referring to premiums and similar charges identified in Sec.  
1026.4(b)(5), (7), (8), or (10), if required by the creditor, instead 
of the proposed language, which referred to ``mortgage-related 
insurance.'' The Bureau determined that referencing components of the 
definition of the finance charge in Sec.  1026.4, rather than adopting 
a new definition of ``mortgage-related insurance,'' would facilitate 
compliance for creditors, since the definition of the finance charge is 
a long-standing part of Regulation Z. As adopted, Sec.  1026.43(b)(8) 
defined mortgage-related obligations to mean property taxes, premiums 
and similar charges identified in Sec.  1026.4(b)(5), (7), (8), or (10) 
that are required by the creditor; fees and special assessments imposed 
by a condominium, cooperative, or homeowner's association; ground rent; 
and leasehold payments. The Bureau's 2013 ATR Final Rule also 
significantly expanded the commentary regarding the definition of 
``mortgage-related obligations'' to provide additional clarification 
and guidance.
    To ease compliance burden and avoid regulatory complexity, Sec.  
1026.37(c)(4)(ii) cross-references the definition of mortgage-related 
obligations in Sec.  1026.43(b)(8), rather than adopting a separate 
definition of the term. Like proposed Sec.  1026.37(c)(4)(ii), however, 
amounts payable for mortgage insurance premiums are excluded because 
they are disclosed separately in the projected payments table. 
Therefore, as adopted, Sec.  1026.37(c)(4)(ii) provides that the 
creditor must disclose the sum of the charges described in Sec.  
1026.43(b)(8), other than amounts identified in Sec.  1026.4(b)(5), 
expressed as a monthly amount, even if no escrow account for the 
payment of some or any such charges will be established. The Bureau 
believes these adjustments address concerns expressed by some industry 
commenters regarding the meaning of the phrase ``mortgage-related 
insurance premiums required by the creditor, other than amounts payable 
for mortgage insurance'' and the term ``assessments'' in the proposed 
rule and will simplify compliance for creditors. The Bureau believes 
these revisions are clarifying in nature and do not alter the substance 
of the rule as proposed.
    In addition, to increase clarity of the rule, the Bureau is 
deleting the word ``Estimated'' from the label in the regulatory text 
of Sec.  1026.37(c)(4)(i) so that the label in the regulatory text is 
revised to ``Taxes, Insurance & Assessments, '' because the word 
``Estimated'' is incorporated into the label by the rule in Sec.  
1026.37(o)(2). The word ``Estimated'' is also incorporated into the 
label by Sec.  1026.38(t)(2) for the table required on the Closing 
Disclosure under Sec.  1026.38(c).
    As discussed above, proposed comments 37(c)(4)(ii)-1 and -2 would 
have provided guidance to creditors regarding the requirement to 
disclose mortgage-related insurance premiums and special assessments. 
The Bureau is not finalizing these comments as proposed due to the 
final rule's cross-reference to the definition of mortgage-related 
obligations in Sec.  1026.43(b)(8). Instead, the Bureau is adopting a 
new comment 37(c)(4)(ii)-1 which provides that creditors should see the 
commentary under Sec.  1026.43(b)(8) for guidance on the charges that 
are included in taxes, insurance, and assessments for purposes of Sec.  
1026.37(c)(4)(ii), except that commentary related to amounts identified 
in Sec.  1026.4(b)(5) (mortgage insurance premiums) is inapplicable to 
the disclosure required by Sec.  1026.37(c)(4)(ii).
    The Bureau is also adopting additional commentary to Sec.  
1026.37(c)(4) to address requests for clarification raised by 
commenters. As noted above, commenters requested additional guidance 
regarding the descriptive statements to be used for amounts other than 
property taxes and homeowner's insurance. To address commenter 
concerns, the Bureau is adopting comment 37(c)(4)(iv)-1, which provides 
that, if the amount disclosed pursuant to Sec.  1026.37(c)(4)(ii) 
requires the creditor to disclose a description of more than one amount 
other than amounts for payment of property taxes or homeowner's 
insurance, the creditor may disclose a descriptive statement of one 
such amount along with an indication that additional amounts are also 
included, such as by using the phrase ``and additional costs.''
    As described above, commenters requested further guidance on how a

[[Page 79948]]

creditor would reflect the amounts required to be disclosed by proposed 
Sec.  1026.37(c)(4)(ii), other than payments for property taxes and 
homeowner's insurance, if some items would be paid using escrow account 
funds and others would be paid directly by the consumer. As proposed, 
neither Sec.  1026.37(c)(4)(ii) nor its commentary specifically 
addressed this issue. To provide clarity and to ease compliance burden, 
the Bureau is adopting comment 37(c)(4)(iv)-2, which provides that if 
the amount disclosed pursuant to Sec.  1026.37(c)(4)(ii) requires the 
creditor to disclose a description of more than one amount other than 
amounts for payments of property taxes or homeowner's insurance and 
only some of those amounts will be paid by the creditor using escrow 
account funds, the creditor may indicate that only some of those 
amounts will be paid using escrow account funds, such as by using the 
word ``some.''
    As previously noted, the Bureau also received comments requesting 
clarification as to whether the disclosure of estimated taxes, 
insurance, and assessment amounts applied to subordinate liens. These 
commenters suggested that the estimated taxes, insurance, and 
assessments disclosure would not be appropriate for subordinate liens 
because creditors do not typically establish escrow accounts for 
subordinate liens and because the disclosed amounts would already be 
disclosed with respect to the first lien. The Bureau acknowledges these 
commenters' concerns but, as noted above and in the proposed rule, the 
Bureau's consumer testing indicates that consumers view the total 
monthly payment amount as a key piece of information and look for this 
amount when shopping for mortgages. Therefore, as noted in the 
proposal, even when no escrow account is established for the payment of 
taxes and insurance, the Bureau believes that this is an important 
measure of the consumer's ability to afford the transaction. For this 
reason, the Bureau believes that consumers will benefit from the 
disclosure of the amounts that will required to be paid for taxes, 
insurance, and assessments, even if no escrow account will be 
established for the payment of such amounts. Although subordinate liens 
do not typically require escrow accounts under current industry 
practice, taxes, insurance, and assessment payments may make up a 
significant part of consumers' loan-related expenses. Absent such a 
disclosure, consumers may not fully comprehend the cost of their home 
loan on a periodic basis, and may not be as readily able to compare 
credit terms and make an informed decision about whether to proceed 
with the transaction. The Bureau does not believe that the fact that 
estimated taxes, insurance, and assessment information would be 
disclosed for both first and subordinate liens creates a risk of 
consumer confusion that outweighs these benefits for consumers.
    Nor does the Bureau believe it is appropriate to adopt specific 
guidance in the final rule with respect to the information creditors 
request from community associations for assessment and other costs. The 
rule requires that creditors make good faith estimates of the 
disclosures on the Loan Estimate required by Sec.  1026.37(c), see 
Sec.  1026.19(e)(1)(i) and associated commentary above, and that the 
Loan Estimate contains a number of disclosure requirements related to 
third-party costs, including information related to community 
association costs and assessments. The Bureau believes that creditors 
will determine appropriate methods to make good faith estimates of such 
amounts, and that it is not appropriate to prescribe by rule the exact 
method that creditors must use to make such estimates. For this reason, 
the Bureau is not adopting a provision in the rule that would dictate 
how creditors will make good faith estimates of community association 
assessments and other costs.
    The Bureau is modifying the design of the statements that the 
disclosed amount can increase over time, required by Sec.  
1026.37(c)(4)(iii) as illustrated by form H-24 of appendix H to 
Regulation Z (discussed in more detail in section-by-section analysis 
of appendix H below). The revised design uses a sentence capitalization 
structure for increased readability. Indeed, in both the Bureau's pre-
proposal qualitative consumer testing and the Quantitative Study, 
consumers were able to use the Loan Terms and Projected Payments tables 
on page 1 of the Loan Estimate to understand their transactions and 
compare loans, including information about their total monthly costs 
and estimated taxes and insurance. See Kleimann Testing Report at 282-
286; Kleimann Quantitative Study Report at 42-45 and 52-53.
37(c)(5) Calculation of Taxes and Insurance
    As previously discussed, section 1465 of the Dodd-Frank Act added 
to TILA new section 128(b)(4)(A), which provides that, in the case of 
any consumer credit transaction secured by a first mortgage on the 
principal dwelling of the consumer, other than an open-end credit plan 
or reverse mortgage, for which an escrow account has been or will be 
established in connection with the transaction for the payment of 
property taxes, homeowner's (also referred to and including hazard) and 
flood insurance premiums, as applicable, or other periodic payments 
with respect to the property, the disclosures required by TILA section 
128(a)(6) must take into account the amount of any monthly payment to 
such account, in accordance with section 10(a)(2) of RESPA. In 
addition, new TILA section 128(b)(4)(B) requires that the amount taken 
into account under TILA section 128(b)(4)(A) for the payment of 
property taxes, hazard or flood insurance premiums, or other periodic 
payments or premiums with respect to the property shall reflect the 
taxable assessed value of the real property securing the transaction 
after consummation of the transaction. That amount must include the 
value of any improvements on the property or to be constructed on the 
property, if known, even if such construction costs are not financed 
from the proceeds of the transaction, and the replacement costs of the 
property for hazard insurance, in the initial year after the 
transaction.
    Pursuant to the Bureau's implementation authority under TILA 
section 105(a), proposed Sec.  1026.37(c)(5) would have implemented 
this requirement for transactions subject to proposed Sec.  1026.19(e) 
and required that the estimated escrow and estimated taxes, insurance, 
and assessments disclosures required pursuant to proposed Sec.  
1026.37(c)(2)(iii) and (4)(ii), respectively, reflect (1) the taxable 
assessed value of the real property securing the transaction after 
consummation, including the value of any improvements on the property 
or to be constructed on the property, whether or not such construction 
will be financed from the proceeds of the transaction, if known, for 
property taxes; and (2) the replacement costs of the property during 
the initial year after the transaction, for hazard and flood insurance.
    Pursuant to its authority under TILA section 105(a) and Dodd-Frank 
Act sections 1032(a) and 1405(b), the Bureau proposed to expand the 
requirements of TILA section 128(b)(4)(A) and (B) to cover all 
transactions subject to proposed Sec.  1026.19(e), including 
transactions where no escrow account will be established for the 
payment of property taxes or hazard insurance, transactions that are 
secured by real property that does not include the principal dwelling 
of the consumer, and

[[Page 79949]]

transactions secured by subordinate liens. The proposal noted that 
these modifications are consistent with the purposes of TILA, as they 
may promote the informed use of credit by allowing consumers to more 
readily compare loans. Further, applying a single disclosure rule to 
all transactions subject to proposed Sec.  1026.19(e) may ease 
compliance burden for creditors. Accordingly, the proposal noted that 
these modifications will improve consumer awareness and understanding 
of residential mortgage loans and are in the interest of consumers and 
the public, consistent with Dodd-Frank Act section 1405(b). In 
addition, consistent with section 1032(a) of the Dodd-Frank Act, the 
proposal noted that the proposed disclosure would ensure that the 
features of consumer credit transactions secured by real property are 
fully, accurately, and effectively disclosed to consumers in a manner 
that permits consumers to understand the costs, benefits, and risks 
associated with the product or service, in light of the facts and 
circumstances.
    One large consumer advocacy commenter suggested that the 
requirements of Sec.  1026.43(c)(5) be supplemented with a requirement 
that creditors calculate the estimated taxes based on what the consumer 
will pay after consummation, rather than what the seller pays. The 
commenter noted that, in many states, homeowners may be eligible for 
exemptions or abatements that reduce their property taxes, but for 
which the buyer may be ineligible. The commenter noted that, if a 
creditor bases the estimate for property taxes on what the seller is 
paying, the estimate may be too low. The commenter noted a similar 
problem with loans that fund construction that will increase the value 
of the property. Several industry commenters expressed concern 
regarding the proposed requirement that estimated property taxes 
reflect the taxable assessed value of the real property securing the 
transaction after consummation, including the value of any improvements 
to the property or to be constructed on the property, if known, even if 
such construction would not be financed from the proceeds of the 
transaction. Several industry trade associations expressed concern over 
the ``if known'' requirement in the proposed rule, stating that 
creditors would need to protect themselves against future claims that 
they knew about the improvements and should have projected higher 
taxes. Several industry commenters suggested that creditors should be 
able to rely on a statement from the consumer that no improvements are 
planned for the property. A large bank commenter expressed similar 
concerns, and suggested that the better course would be for the rule to 
provide that, for refinancings, the disclosures should be based on 
current taxes and insurance costs and that, with regard to purchase and 
construction loans, the disclosures should be based on the best known 
actual taxes and insurance costs.
    For the reasons discussed in the proposed rule, the Bureau is 
adopting Sec.  1026.37(c)(5) as proposed, except that the reference to 
homeowner's insurance in Sec.  1026.37(c)(5)(ii) is revised for 
consistency with Sec.  1026.37(c)(4)(ii). As described above, Sec.  
1026.37(c)(5) implements the requirement in TILA section 128(b)(4)(B), 
which requires that the amount taken into account under TILA section 
128(b)(4)(A) for the payment of property taxes, hazard or flood 
insurance premiums, or other periodic payments or premiums with respect 
to the property shall reflect the taxable assessed value of the real 
property securing the transaction after consummation of the 
transaction. Under the statute, that amount must include the value of 
any improvements on the property or to be constructed on the property, 
if known, even if such construction costs are not financed from the 
proceeds of the transaction, and the replacement costs of the property 
for hazard insurance, in the initial year after the transaction.
    The Bureau recognizes industry commenters' concerns regarding the 
requirement that the disclosure of estimated property taxes be based on 
the taxable assessed value of the real property securing the 
transaction after consummation, including the value of any improvements 
on the property or to be constructed on the property, if known, whether 
or not such construction will be financed from the proceeds of the 
transaction. However, the requirement is statutory, and the Bureau 
believes that the purpose of the statutory provision is to provide 
consumers with reliable estimates of their future property taxes when 
comparing and assessing the affordability of their loans. The Bureau 
believes that consumers would benefit from a disclosure that accounts 
for planned future improvements on the property, even if the 
improvements will not be financed with the loan proceeds. Further, the 
Loan Estimate requires only that creditors disclose a good faith 
estimate of the disclosures required by Sec.  1026.37 (see Sec.  
1026.19(e)(1)(i) and associated commentary), that such estimates are 
based on the best information reasonably available to the creditor at 
the time of the disclosure, and that the ``reasonably available'' 
standard requires the creditor, acting in good faith, to exercise due 
diligence in obtaining the information. See comments 17(c)(2)(i)-1 and 
19(e)(1)(i)-1.
    The Bureau believes that creditors will determine appropriate and 
efficient methods to make good faith estimates of such amounts based on 
the best information reasonably available, and that it is not 
appropriate to prescribe by rule the exact method that creditors must 
use to make such estimates.
37(d) Costs at Closing
    The Bureau proposed Sec.  1026.37(d) which would have required the 
disclosure of an estimate of the cash needed from the consumer at 
consummation of the transaction, with a breakdown of the amounts of 
loan costs, other costs, and lender credits associated with the 
transaction. The Bureau did receive comments regarding the calculation 
of these amounts in response to proposed paragraphs (f), (g) and (h), 
which are discussed below in connection with the respective paragraphs.
    Several commenters stated that the cash to close amount should not 
be listed on the first page of the Loan Estimate, or at all, as the 
amount should not be a basis by which consumers analyze loans. To the 
contrary, consumer testing conducted by the Bureau prior to issuing the 
proposal indicated that consumers are able to use the cash to close 
amount, together with the other disclosed information on the first page 
of the Loan Estimate, to evaluate the affordability of a transaction, 
and to make sophisticated trade-offs among closing costs, interest 
rate, and payments based on personal situations. See Kleimann Testing 
Report at 277-80.
    As more fully discussed in the section-by-section analysis of 
Sec. Sec.  1026.37(h) and 1026.38(d) and (e), below, several industry 
and consumer advocacy group commenters stated that the cash to close 
amount would be difficult for consumers to understand, especially in 
the case of a cash-out refinance where the cash to close amount 
disclosed under proposed Sec.  1026.37(d)(1) would have been negative. 
These commenters stated that consumers would have difficulty in 
understanding negative numbers in this context. In response to these 
comments, the Bureau conducted consumer testing after issuance of the 
proposal on an alternative method of disclosing the total cash to close 
amount and the calculation of the cash to close amount

[[Page 79950]]

for transactions without a seller to remove the possibility of a 
negative disclosure in cash-out refinance transactions. This consumer 
testing focused on the cash to close disclosure on page 1 of the Loan 
Estimate, as required by Sec.  1026.37(d), as well as other related 
parts of the Loan Estimate and Closing Disclosure. The testing 
consisted of three rounds of qualitative testing of revised Loan 
Estimates and Closing Disclosures for refinance transactions, and 
included 21 consumers. See Kleimann Post-Proposal Testing Report at 51-
72. The results indicated that consumers were able to readily and 
easily understand the nature of the transaction using the revised cash 
to close disclosure specifically designed for transactions without 
sellers being finalized under Sec.  1026.37(d)(2), especially in the 
context of a cash-out refinance. See Kleimann Post-Proposal Testing 
Report at 58, 71.
    Some industry commenters also stated that consumers using the cash 
to close table on page 1 of the proposed Loan Estimate could experience 
confusion between the amount of closing costs associated with their 
loan and the amount of cash that the consumer would have to pay at 
closing In addition, based on the results from the Bureau's 
Quantitative Study with respect to consumers' ability to identify the 
amount of the estimated total closing costs, the Bureau determined that 
this area of the Loan Estimate could be improved to enable consumers to 
identify their total closing costs more readily. For almost all of the 
questions in the Bureau's Quantitative Study, consumer participants 
using the Bureau's integrated disclosures performed statistically 
significantly better than those who used the current disclosures under 
TILA and RESPA. For only one question out of the 39 key questions of 
the study did consumers using the current disclosures perform 
statistically significantly better than those who used the integrated 
disclosures. This one question asked respondents using the current 
early TILA disclosure and RESPA GFE: ``How much are your settlement 
charges?'' and asked respondents using the Bureau's integrated 
disclosures: ``How much are your closing charges?'' For respondents 
using the current disclosures, 86.2 percent answered this question 
correctly, but only 46.3 percent of respondents using the integrated 
disclosure answered this question correctly. However, for the 
integrated disclosures, 51.6 percent of the respondents provided the 
cash to close amount, meaning that only 2.1 percent of respondents 
provided an answer other than the cash to close or total closing costs. 
See Kleimann Quantitative Study Report at 74. The Bureau believes from 
these results that the respondents were using the proper location on 
the integrated disclosure, but provided the amount that the disclosure 
design emphasized, instead of reviewing the text to the right of the 
cash to close number to identify the total closing costs (the amount of 
the total closing costs was embedded within the text to the right of 
the cash to close amount on the proposed Loan Estimate).\270\
---------------------------------------------------------------------------

    \270\ In contrast, the RESPA GFE places emphasis on the amount 
of settlement charges on page 1, but does not include the amount of 
cash the consumer needs to close the transaction.
---------------------------------------------------------------------------

    In light of the comments received regarding the cash to close table 
and the above-mentioned results from the Bureau's Quantitative Study, 
the Bureau determined to develop a revised format of the cash to close 
table for all transactions. The Bureau revised the table to place more 
emphasis on the total closing costs, so that equal emphasis is placed 
on the cash to close with this revision the Bureau believed consumers 
can more readily identify the estimated total closing costs. The Bureau 
tested the revised table with consumers at its qualitative consumer 
testing conducted after issuance of the proposal (see part III.G above) 
and found that the table enabled consumers to identify readily the 
estimated closing costs as well as use the estimated cash to close to 
evaluate the affordability of the transaction.
    Accordingly, the Bureau is revising Sec.  1026.37(d) to reflect the 
new heading for the table, ``Costs at Closing,'' in the heading of the 
section. The Bureau also is revising the format of the Costs at Closing 
table to contain two rows underneath the new heading, as illustrated by 
form H-24 of appendix H to Regulation Z. The first row, under final 
Sec.  1026.37(d)(1)(i), will contain the estimated closing costs, 
including separate disclosures of the total loan costs, other costs, 
and lender credits associated with the transaction, as well as a 
reference to the closing costs details required by Sec.  1026.37(f) and 
(g) (disclosed on page 2 of the Loan Estimate). The second row, under 
final Sec.  1026.37(d)(1)(ii), will contain the estimated cash to 
close, a statement that the amount includes closing costs, and a 
reference to the calculating cash to close table required by Sec.  
1026.37(h) (disclosed on page 2 of the Loan Estimate). The table 
required under Sec.  1026.37(d)(1) will be required for all 
transactions subject to Sec.  1026.19(e) and (f) and use cross-
references from the provisions of Sec.  1026.37(h)(1) for the amounts 
to be disclosed.
    As noted above, the Bureau also is revising Sec.  1026.37(d) to 
provide for an optional alternative cash to close disclosure under 
Sec.  1026.37(d)(2) to address commenters' concerns regarding 
disclosure of a negative cash to close number in cash-out refinances. 
The revisions provide an optional alternative cash to close disclosure 
for transactions without a seller under Sec.  1026.37(d)(2), which will 
use cross-references from the provisions of Sec.  1026.37(h)(2) for the 
amounts to be disclosed. The Bureau also is adopting comments 37(d)(2)-
1, which clarifies that the use of the alternative table under Sec.  
1026.37(d)(2) must be used in conjunction with the alternative 
calculating cash to close table under Sec.  1026.37(h)(2); and 
37(d)(2)-2, which provides an example of how to disclose whether the 
cash is due from or to the consumer with the use of check boxes as 
shown in form H-24(D) of appendix H to Regulation Z.
    Pursuant to its authority under TILA section 105(a), RESPA section 
19(a), and Dodd-Frank Act section 1032(a), the Bureau is requiring 
creditors to provide the estimated total closing costs imposed upon the 
consumer and the estimated amount of cash needed at consummation from 
the consumer under Sec.  1026.37(d). This disclosure will effectuate 
the purposes of TILA by promoting the informed use of credit and will 
ensure the features of the mortgage transaction are fully, accurately 
and effectively disclosed to consumers in a manner that permits 
consumers to understand the costs, benefits, and risks associated with 
the mortgage transaction, in light of the facts and circumstances, 
because it will indicate to the consumer the amount the consumer will 
have to pay at consummation of the credit transaction and closing of 
the real estate transaction.
37(e) Web Site Reference
    The Bureau proposed Sec.  1026.37(e) which would have required 
creditors to include a statement on the Loan Estimate notifying the 
consumer that additional information and tools regarding mortgage loans 
may be found at the Bureau's Web site and a reference to the link or 
uniform resource locator (URL) address for the Bureau's Web site. 
Appendix C to Regulation X includes a statement in the RESPA GFE that 
directs consumers to HUD's Web site and other sources of additional 
information, stating the following, ``For more information, see HUD's 
Special

[[Page 79951]]

Information Booklet on settlement charges, your Truth-in-Lending 
Disclosures, and other consumer information at www.hud.gov/respa.'' 
Regulation Z does not contain a similar provision for the early TILA 
disclosure. The Bureau believed that a disclosure in the Loan Estimate 
directing consumers to additional information and tools on its Web site 
may help consumers understand the mortgage process and the various loan 
products in the market, and consequently better understand their loan 
transaction and make informed decisions about whether to enter into a 
loan transaction or which loan product best meets their needs. At the 
Bureau's consumer testing of the proposed language directing consumers 
to the Web site for general information and tools, consumers stated 
that they would access the Bureau's Web site address disclosed at the 
bottom of page 1 of the Loan Estimate. See Kleimann Testing Report at 
149. The Bureau did not receive comments concerning the information 
disclosed pursuant to proposed Sec.  1026.37(e). Accordingly, the 
Bureau is adopting Sec.  1026.37(e) as proposed, with a technical 
change to state the full term ``uniform resource locator'' instead of 
the abbreviation of ``URL'' in the regulatory text to provide greater 
clarity, and to change the address of the Web site, because the Bureau 
will publish a dedicated Web site for information relating to the Loan 
Estimate and the mortgage application and shopping process generally.
    The Bureau is using its authority under TILA section 105(a), RESPA 
section 19(a), and Dodd-Frank Act section 1032(a) to require disclosure 
of the Bureau's Web site in proposed Sec.  1026.37(e). As stated above, 
the Bureau believes that a disclosure in the Loan Estimate directing 
consumers to additional information and tools on its Web site may help 
consumers understand the mortgage process and the various loan products 
in the market, and consequently better understand their loan 
transaction and make informed decisions about whether to enter into a 
loan transaction or which loan product best meets their needs. 
Accordingly, this disclosure will effectuate the purposes of TILA and 
RESPA by promoting the informed use of credit and more effective 
advance notice of settlement costs, consistent with TILA section 105(a) 
and RESPA section 19(a), and will ensure that the features of the 
mortgage transactions are fully, accurately, and effectively disclosed 
to consumers in a manner that permits consumers to better understand 
the costs, benefits, and risks associated with mortgage transactions, 
in light of the facts and circumstances, consistent with Dodd-Frank Act 
section 1032(a).
37(f) Closing Cost Details; Loan Costs
    Under section 5(c) of RESPA creditors must provide applicants for 
federally related mortgage loans with a good faith estimate of the 
amount or range of charges for specific settlement services the 
applicant is likely to incur in connection with the settlement of the 
loan. 12 U.S.C. 2604(c). Section 1024.7 of Regulation X currently 
implements this mandate by requiring creditors and mortgage brokers to 
provide the RESPA GFE, which must be completed in accordance with the 
instructions in appendix C to Regulation X. Appendix C sets out 
specific instructions for the information that must be disclosed on the 
RESPA GFE, including the loan costs that must be included and how to 
identify those costs on the disclosure.
    As discussed above, Dodd-Frank Act section 1032(f) requires that 
the Bureau propose rules to combine these RESPA disclosures with the 
disclosures required by TILA. In addition to existing TILA disclosure 
requirements, section 1419 of the Dodd-Frank Act amended TILA section 
128(a) to require, in the case of a residential mortgage loan, 
disclosure of the aggregate amount of settlement charges for all 
settlement services provided in connection with the loan and the 
aggregate amount of other fees or required payments in connection with 
the loan. 15 U.S.C. 1638(a)(17).
    The Bureau proposed to require creditors to provide the loan costs 
and other costs imposed upon the consumer in tables as part of the 
integrated Loan Estimate. Proposed Sec.  1026.37(f) and (g) would have 
implemented these early disclosure requirements of TILA and RESPA by 
setting out details relating to the costs for consummating the mortgage 
loan, separated into two categories: loan costs and other costs. Based 
on its consumer testing, the Bureau believed that early disclosure of 
estimated loan costs and other costs, as set forth in proposed Sec.  
1026.37(f) and (g), would have improved consumer understanding of the 
credit and property transactions. The Bureau believed that these 
disclosures would have effectuated the purpose of TILA by promoting the 
informed use of credit and assuring a meaningful disclosure to 
consumers. The Bureau believed that the disclosures also would have 
satisfied the RESPA requirement to provide a consumer with a good faith 
estimate of the amount or range of charges for specific settlement 
services the consumer is likely to incur in connection with the 
settlement. In addition, these disclosures would have ensured that the 
features of the mortgage loan transactions are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
mortgage loan transaction, in light of the facts and circumstances, 
consistent with Dodd-Frank Act section 1032(a).
    In particular, proposed Sec.  1026.37(f) would have required the 
creditor to itemize, as ``Loan Costs,'' its fees and other charges to 
the consumer for extending the credit or that compensate a mortgage 
broker for originating the transaction. The creditor would have been 
required to disclose the individual itemized charges, including charges 
to third parties for services required by the creditor or mortgage 
broker for consummation, along with subtotals for prescribed categories 
of those itemized charges, and the total of all such itemized charges. 
In general, these charges are currently required to be disclosed--as 
itemized or aggregate charges and amounts--on the RESPA GFE, the RESPA 
settlement statement, or both.\271\
---------------------------------------------------------------------------

    \271\ The Bureau acknowledged in the proposal that, on June 20, 
2012, HUD's Office of Policy Development and Research and the Urban 
Institute released a study entitled ``What Explains Variation in 
Title Charges? A Study of Five Large Markets,'' available at http://www.huduser.org/portal/publications/hsgfin/title_charges_2012.html, which observed a positive association between the number 
of items listed and net service fees was statistically significant 
after taking home prices into account. See Id. at 29. The study was 
based on RESPA settlement statements of FHA loans originated in 
2001. See Id. at 13. However, the report could not determine whether 
this indicates additional value to the consumer or additional costs 
to the settlement agent due to limitations of the data. Id. The 
study states that ``there is no way to ascertain from the data 
whether an itemized cost is an attempt to confuse consumers or the 
provision of an additional, valuable service that the homebuyer is 
willing to pay for. Both interpretations are plausible.'' Id. Under 
the proposal, itemization would have been permitted on the Loan 
Estimate, but highly visible subtotals in gray shading and bold font 
are displayed above the itemized charges for specific categories of 
costs. Based on its consumer testing, the Bureau believed that the 
highly visible subtotals, along with the highly visible ``Services 
You Can Shop For'' subcategory of Closing Costs on the Loan 
Estimate, would inform consumers that they can shop for their own 
service providers and provide them with readily comparable cost 
categories to shop for between creditors and service providers. Such 
shopping for settlement service providers, according to the study, 
could provide ``significant benefits to consumers.'' See Id. at 28. 
At the Bureau's Quantitative Study, the Bureau's integrated 
disclosure performed better than the current RESPA GFE and early 
TILA disclosures at informing consumers that they can shop for 
certain settlement service providers. See Kleimann Quantitative 
Study Report at 68.
---------------------------------------------------------------------------

    Proposed comment 37(f)-1 would have explained that the items 
disclosed as Loan Costs pursuant to Sec.  1026.37(f)

[[Page 79952]]

are those that the creditor or mortgage broker require for 
consummation. Proposed comment 37(f)-2 would have provided a cross-
reference to the commentary under proposed Sec.  1026.19(e)(1)(ii), 
which would have discussed the requirements and responsibilities of 
mortgage brokers that provide the disclosures required under Sec. Sec.  
1026.19(e) and 1026.37(f).
    Commenters had three general comments related to the itemization of 
cost for services provided by or required to be obtained by or for the 
creditor in Sec.  1026.37(f). First, two national trade associations 
and some other industry commenters stated that settlement charges that 
are offset by lender credits or rebates, either from an increased 
interest rate or as a matter of accommodation, should not be required 
to be itemized on the Loan Estimate at all. However, section 1419 of 
the Dodd-Frank Act amended TILA section 128(a) to require, in the case 
of a residential mortgage loan, disclosure of the aggregate amount of 
settlement charges for all settlement services provided in connection 
with the loan and the aggregate amount of other fees or required 
payments in connection with the loan. 12 U.S.C. 1638(a)(17). If any 
settlement charges are not included on the Loan Estimate because they 
are paid from an increased interest rate or from a contractually 
provided credit or rebate from the creditor, then the aggregate amount 
of settlement charges for all settlement services provided in 
connection with the loan would not be disclosed on the Loan Estimate, 
thereby frustrating the requirement of section 1419 of the Dodd-Frank 
Act. Eliminating some settlement charges from the Loan Estimate also 
would reduce the ability of consumers to identify the settlement 
services that they could shop for, to negotiate the charges, and to 
compare such services and charges between creditors. See Kleimann 
Testing Report at 288. The Bureau believes that, to improve consumer 
understanding of the nature and charges associated with the 
transaction, consumers should be provided information on the services 
required by the creditor, and the cost of those services, even if the 
creditor is providing credits to offset the cost of those required 
services.
    Second, one national trade association suggested that the layout of 
proposed Sec.  1026.37(f) should track the categories established by 
proposed Sec.  1026.19(e)(3) to determine whether a charge is disclosed 
in good faith on the Loan Estimate. The Bureau believes that these 
categories can only be determined by an analysis of whether or not a 
consumer shopped for a particular service in the category of service 
for which the consumer is permitted to shop. This can be determined 
only at the end of the underwriting process. See the section-by-section 
analysis of Sec.  1026.19(e)(3)(i) and (ii), above. Determining the 
placement of charges on the Loan Estimate by reference to criteria that 
can be established only by events occurring after the Loan Estimate is 
disclosed would be unworkable. In addition, the Bureau's consumer 
testing and Quantitative Study established that consumers are able to 
determine the charges that they can shop for and negotiate other fees 
using the layout as proposed. See Kleimann Testing Report at 85, 104, 
126, 134, and 240; Kleimann Quantitative Study Report at 45.
    Lastly, a title insurance company commenter stated that additional 
lines should be provided for the itemization under the respective 
subparagraphs of proposed Sec.  1026.37(f) because creditors, secondary 
market participants, and others will want to see more itemization than 
the proposed Loan Estimate permits. The comment, however, focused on 
itemization of charges on the Closing Disclosure, which does not 
contain the limitations on itemization that are present on the Loan 
Estimate. The limitations on itemization present under proposed Sec.  
1026.37(f) were designed to prevent information overload for consumers, 
as well as to provide consumers with a detailed list of their closing 
costs on a single page, to aid consumers' understanding of their 
transactions, and to enable consumers to easily compare the fees and 
charges of different loans between one creditor or multiple creditors. 
Accordingly, the Bureau is adopting the general requirement that an 
itemized list of fees and charges be disclosed and Sec.  1026.37(f) and 
its accompanying commentary generally as proposed, except to the extent 
that amendments are made to the subparagraphs and accompanying 
commentary as described below.
37(f)(1) Origination Charges
    Under the Bureau's proposed Sec.  1026.37(f)(1), charges that would 
have been included on the Loan Estimate under the subheading of 
``Origination Charges'' are those that the consumer will pay to the 
creditor and any loan originator for originating and extending the 
credit. In addition, proposed Sec.  1026.37(f)(1) would have required 
the creditor to include under the subheading ``Origination Charges'' 
the points that the consumer will pay to reduce the interest rate 
separately itemized as both the percentage of the loan amount, and the 
resulting calculation of the dollar amount. The line's label would have 
read: ``-- % of Loan Amount (Points),'' and the blank before the 
percentage sign would have been filled in with the applicable number.
    Proposed comment 37(f)(1)-1 would have clarified that charges that 
are included under the subheading ``Origination Charges'' pursuant to 
Sec.  1026.37(f)(1) are those charges paid by the consumer for which 
the amount is paid to the creditor or loan originator for originating 
and extending the mortgage credit. The comment would have included 
cross-references to Sec.  1026.37(o)(4) for rules on rounding amounts 
disclosed, comment 19(e)(3)(i)-2 for a discussion of when a fee is 
considered to be ``paid to'' a person, and comment 36(a)-1 for a 
discussion of the meaning of ``loan originator.'' Proposed comment 
37(f)(1)-2 would have clarified that only loan originator charges paid 
directly by the consumer are included in the items listed pursuant to 
Sec.  1026.37(f)(1), but states that charges paid by the creditor 
through the interest rate are disclosed on the Closing Disclosure 
pursuant to Sec.  1026.38(f)(1). Proposed comment 37(f)(1)-3 would have 
provided examples of the items that might be disclosed under the 
subheading ``Origination Charges'' on the Loan Estimate. Proposed 
comment 37(f)(1)-4 would have explained that if the consumer is not 
charged any points for the loan, the creditor may leave blank the 
percentage of points required by Sec.  1026.37(f)(1)(i), but must 
disclose the dollar amount of ``$0.'' Proposed comment 37(f)(1)-5 would 
have clarified that the creditor may decide the level of itemization of 
origination charges that is appropriate, subject to the limitations in 
Sec.  1026.37(f)(1)(ii) on the number of lines.
    The Bureau noted in the proposal that TILA section 128(a)(18), as 
added by Dodd-Frank Act section 1419, requires the creditor to 
disclose, for residential mortgage loans, the aggregate amount of fees 
paid to the mortgage originator in connection with the loan, the amount 
of such fees paid directly by the consumer, and any additional amount 
received by the originator from the creditor. In the discussion of 
proposed Sec.  1026.37(l) in the proposal, the Bureau noted that 
research regarding consumer comprehension and behavior and the results 
of the Bureau's consumer testing suggest that an effective disclosure 
regime minimizes the risk of consumer distraction and information 
overload by providing only information that will assist most consumers. 
The Bureau

[[Page 79953]]

evaluated the usefulness to consumers and others at early stages of the 
loan process of the disclosures required by TILA section 128(a)(18), as 
added by Dodd-Frank Act section 1419. Based on that evaluation, and as 
discussed further below, the Bureau proposed to use its authority under 
TILA section 105(a) and (f), RESPA section 19(a), and, for residential 
mortgage loans, Dodd-Frank Act section 1405(b), to exempt transactions 
subject to proposed Sec.  1026.19(e) from certain of the itemized 
disclosures required by TILA section 128(a)(18). In particular, for 
transactions subject to proposed Sec.  1026.19(e), proposed Sec.  
1026.37(f)(1) would have required the creditor to disclose the amounts 
of origination fees paid by the consumer to creditors and loan 
originators in connection with the loan, but not any amounts received 
by a loan originator from the creditor. However, as discussed in the 
proposal with respect to proposed Sec.  1026.38(f)(1), the full 
disclosure required by TILA section 128(a)(18) would have been included 
in the disclosure requirements for transactions subject to proposed 
Sec.  1026.19(f). In other words, although certain TILA section 
128(a)(18) disclosures would not have been included in the Loan 
Estimate, they would have been provided in the Closing Disclosure.
    The RESPA GFE currently required by Regulation X aggregates all 
compensation paid to all loan originators and includes a separate item 
that reflects as a ``credit'' to the consumer fees received by mortgage 
brokers from the creditor rather than the consumer. A major goal of the 
RESPA GFE disclosure requirements was to provide consumers with a clear 
disclosure of any interest rate-based payments being made by creditors 
to mortgage brokers who may be working with the consumer. Regulation X 
provides generally that lender and mortgage broker origination charges 
are to be included on page 2 of the RESPA GFE, in Block 1 (``Our 
origination charge''), Block 2 (``Your credit or charge (points) for 
the specific interest rate chosen''), and Line A (``Your Adjusted 
Origination Charges''). See 12 CFR part 1024, appendix C (instructions 
for ``Your Adjusted Origination Charges''). Under the disclosure 
requirements in Regulation X, all charges for services related to the 
creation of the mortgage loan are to be included on the RESPA GFE in 
the single amount stated in Block 1 and the single amount in Block 2, 
as applicable. The RESPA GFE disclosure requirements prohibit creditors 
and mortgage brokers from separately charging any fees for originating 
the loan that are in addition to the amounts included in Blocks 1 and 
2. Id. (instructions for ``Block 1'').
    The requirements related to the disclosures in Blocks 1 and 2 of 
the RESPA GFE have been a source of uncertainty for creditors, mortgage 
brokers, and consumers. HUD provided informal guidance to address some 
of the uncertainty in a number of its HUD RESPA FAQs and HUD RESPA 
Roundups, much of which involved where and how to disclose compensation 
paid directly and indirectly to mortgage brokers.
    In 2010, subsequent to the issuance of HUD's 2008 RESPA Final Rule, 
the Board established by regulation in Sec.  1026.36 of Regulation Z 
restrictions on the compensation of loan originators, including 
mortgage brokers. See 75 FR 58509 (Sept. 24, 2010). The Board adopted 
these restrictions only after concluding that disclosure of creditor-
paid compensation did not provide sufficient protection for 
consumers.\272\ The Bureau noted in the proposal that it believes 
consumers may not benefit from any disclosure of interest rate-based 
compensation, citing the Board's Regulation Z restrictions on the 
compensation of loan originators. The Bureau's proposal also noted that 
it was engaged in six other rulemakings (i.e., the Title XIV 
Rulemakings) that related to mortgage credit and intended that the 
rulemakings function collectively as a whole, and that the Bureau may 
have to modify aspects of the proposed rule to maintain consistency 
with final determinations made after opportunity for public comment in 
the other, related rulemakings. See 77 FR 51116, 51209 (August 23, 
2012). Specifically, Dodd-Frank Act section 1403 amended TILA section 
129B(c)(2) to prohibit an origination fee or charge that is paid to a 
mortgage originator by any person other than the consumer, unless the 
mortgage originator does not receive compensation directly from the 
consumer and the consumer does not make an upfront payment of discount 
points, origination points, or fees (other than certain third-party 
fees). 15 U.S.C. 1639b(c)(2)(B). TILA section 129B(c)(2) as amended 
also provides the Bureau with the authority to waive or create 
exemptions from this prohibition with respect to the clause against the 
consumer making an upfront payment of discount points, origination 
points, or fees, where doing so is in the interest of consumers and in 
the public interest. In the 2013 Loan Originator Final Rule, the Bureau 
exercised its authority under TILA section 129B(c)(2) and created an 
exemption from the upfront payment of discount points, origination 
points or fees (other than third-party fees). See 78 FR 11280, 11370 
(February 15, 2013). Therefore, the disclosure of discount points under 
proposed Sec.  1026.37(f)(1) has not been rendered moot by the Title 
XIV Rulemakings.
---------------------------------------------------------------------------

    \272\ The Board's 2010 Compensation Final Rule discussed the 
history of efforts by the Board to address concerns regarding 
consumers' understanding of fees received by mortgage brokers from 
creditors. Before issuing that final rule, the Board considered 
proposed disclosures of such compensation, but had withdrawn the 
proposed disclosures because of concern that they could confuse 
consumers and undermine their decisionmaking rather than improve it. 
75 FR 58509, 58511 (Sept. 24, 2013). A 2008 study referenced in the 
Board's 2010 Compensation Final Rule indicated additional 
disclosures may not help consumers understand and avoid financial 
incentives for loan originators that may be contrary to consumer 
interests. Id. The study found that consumers were confused by, and 
in some cases did not appropriately apply, the information provided 
in disclosures about mortgage broker compensation arrangements. 
Macro Int'l Inc., Consumer Testing of Mortgage Broker Disclosures 
(July 10, 2008), available at http://www.federalreserve.gov/newsevents/press/bcreg/20080714regzconstest.pdf.
---------------------------------------------------------------------------

    The Bureau sought comment on how, in light of amended TILA section 
129B(c)(2), the Bureau should refine or modify the way in which 
origination charges are disclosed under proposed Sec.  1026.37(f)(1). 
The Bureau did not receive comments on issue. The Bureau also sought 
comment on whether the final rule should require that fees received by 
loan originators from the creditor be included in the Loan Estimate. In 
addition, the Bureau sought comment on whether other limits on 
itemization, as well as the proposed limits on the number of charges 
that may be itemized pursuant to proposed Sec.  1026.37(f)(1), should 
be included in the final rule and, if so, what those limits should be.
    In response, commenters generally sought clarification related to 
where certain charges and credits would be disclosed pursuant to 
proposed Sec.  1026.37(f)(1). Many of the comments questioned the 
degree to which the proposal deviated from current regulation, 
specifically the current instructions for completing a GFE pursuant to 
appendix C to Regulation X relating to the aggregation of origination 
charges. Proposed Sec.  1026.37(f)(1) only limited the itemization for 
charges paid to each creditor and loan origination for originating and 
extending the credit on the Loan Estimate to thirteen total itemized 
charges under proposed Sec.  1026.37(f)(1)(ii). Creditors themselves 
could determine the level of itemization they wished to provide, except 
that the first itemized charge must be for any charge to reduce the 
interest rate under

[[Page 79954]]

proposed Sec.  1026.37(f)(1)(i). The last itemized line could be used 
to disclose an aggregate of the remaining itemized charges with the 
label ``Additional Charges'' when the itemized charges exceeded the 
thirteen permitted under proposed Sec.  1026.37(f)(6)(i). One large 
bank commenter sought clarity on ``negative discount points,'' or 
offsetting credits associated with an interest rate. Under the 
proposal, only charges would have been disclosed under proposed Sec.  
1026.37(f)(1), and lender credits would have been disclosed pursuant to 
proposed Sec.  1026.37(g)(6). A national trade association commenter 
queried whether services related to origination, but that were provided 
by third parties, would be included in the itemization under proposed 
Sec.  1026.37(f)(1). These charges would have been disclosed pursuant 
to proposed Sec.  1026.37(f)(2), as services required by the creditor 
but provided by third parties that the consumer could not shop for 
unless the creditor does, in fact, permit the consumer to shop for the 
third-party services, which the Bureau understands would be extremely 
rare. A GSE commenter stated that the extent of the itemization 
permitted under Sec.  1026.37(f)(1), especially in relation to the 
itemization of payments made directly by a consumer to a loan 
originator, was unclear.
    Two GSE commenters stated in comment letters and in an ex parte 
meeting that the proposal was silent as to how to disclose loan-level 
pricing adjustments or delivery fees paid by creditors to the GSE 
commenters, and requested guidance regarding the disclosure of such 
fees. They stated that the creditor sometimes will require these 
amounts to be paid upfront by consumers, rather than adjusting the 
interest rate to be charged in relation to the mortgage loan 
transaction, and the amounts are disclosed to consumers as third-party 
charges, discount points, or as an adjustment to the creditor's 
origination charge. The GSE commenters stated that, under the proposed 
rule, it would seem that these fees could be disclosed pursuant to 
proposed Sec.  1026.37(f)(2), but they sought clarification of the 
location of these charges and stated that there should be consistency 
among creditors with relation to disclosure of these charges.\273\ To 
the extent that these third-party charges are passed onto the consumer, 
the loan-level pricing adjustments and delivery fees would be properly 
disclosed under Sec.  1026.37(f)(1) of the final rule and the Bureau is 
providing an example in comment 35(f)(1)-5 of the final rule regarding 
the disclosure of such fees on the Loan Estimate to provide additional 
clarity.
---------------------------------------------------------------------------

    \273\ The GSE commenters also stated that loan-level pricing 
adjustments or delivery fees are not viewed as third-party charges 
under the 2013 ATR Final Rule in relation to the definition of 
points and fees, rather they are considered as part of the interest 
rate pricing for the loan. The determination of points and fees is 
required to determine if a mortgage is considered to be a qualified 
mortgage pursuant to Sec.  1026.43(e). However, many of the charges 
that are required to be disclosed under Sec.  1026.37(f) and (g) are 
not included in the points and fees test for various reasons, 
including to avoid double-counting of charges in relation to the 
maximum amount of points and fees for a qualified mortgage. The 
items listed on the Loan Estimate and Closing Disclosure must also 
be used for all mortgage loan transactions, not just for qualified 
mortgages. Therefore, the manner in which the loan-level pricing 
adjustments or delivery fees are considered in the definition of 
points and fees under Sec.  1026.32(b)(1), used for Sec.  
1026.43(e), is not relevant to how they are disclosed on the Loan 
Estimate under Sec.  1026.37 or the Closing Disclosure under Sec.  
1026.38.
---------------------------------------------------------------------------

    Accordingly, the Bureau is adopting Sec.  1026.37(f)(1) and its 
accompanying commentary substantially as proposed, except for certain 
modifications for clarity and consistency with form H-24 of appendix H 
to Regulation Z. The Bureau is modifying Sec.  1026.37(f)(1)(i) to 
require that the disclosures required by Sec.  1026.37(f)(1)(i) be left 
blank if no points are to be charged to the consumer in order to obtain 
the interest rate disclosed on the Loan Estimate, and is modifying 
comment 37(f)(1)-5 to indicate expressly the limits to a creditor's 
discretion to itemize charges under Sec.  1026.37(f)(1). The Bureau 
believes that requiring that the disclosure of points to be left blank 
if no points are being charged to the consumer for the interest rate 
disclosed will reduce the potential of information overload for 
consumers. In addition, the Bureau is revising Sec.  1026.37(f)(1)(i) 
to delete references to the points required to be disclosed under that 
paragraph as being paid by the consumer. The disclosure must reflect 
the terms of the legal obligation, and if a seller paid points to 
reduce the interest that the consumer was obligated to pay under the 
terms of the legal obligation, the disclosure required by Sec.  
1026.37(f)(1)(i) is the amount of points the consumer is obligated to 
pay under the terms of the legal obligation, including those paid by 
the seller. The seller's payment of the points under a separate 
contractual agreement with the consumer would be disclosed as a 
seller's credit under Sec.  1026.37(h), to the extent known by the 
creditor, consistent with the good faith requirement under Sec.  
1026.19(e). See comments 17(c)(1)-1 and -3. The Bureau also is revising 
comment 37(f)(1)-5 to provide additional examples of origination 
charges, including loan-level pricing adjustments, in response to 
commenters' requests for additional guidance.
    The Bureau is adopting the requirements in Sec.  1026.37(f)(1) 
pursuant to its implementation authority under TILA section 105(a) and 
RESPA section 19(a) because disclosure of the points, component 
charges, and total origination charges will promote the informed use of 
credit and more effective advance disclosure of settlement costs, which 
are purposes of TILA and RESPA, respectively. Dodd-Frank Act sections 
1032(a) and 1405(b) are also sources of authority for the requirements 
in Sec.  1026.37(f)(1). The information disclosed under Sec.  
1026.37(f)(1) will enable consumers to understand and negotiate fees, 
shop for origination services, and compare the Loan Estimate with any 
revised Loan Estimate and the Closing Disclosure, thereby ensuring that 
the features of the mortgage transactions are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
mortgage transaction, in light of the facts and circumstances, 
consistent with Dodd-Frank Act section 1032(a).
    In adopting Sec.  1026.37(f)(1) substantially as proposed, the 
Bureau is using its authority under TILA section 105(a) and (f), RESPA 
section 19(a), and, for residential mortgage loans, Dodd-Frank Act 
section 1405(b), to exempt transactions subject to Sec.  1026.19(e) 
from the itemized disclosures required by TILA section 128(a)(18), as 
added by Dodd-Frank Act section 1419, of the aggregate amount of fees 
paid to the mortgage originator in connection with the loan, and the 
amount paid to the mortgage originator by the creditor. In particular, 
for transactions subject to Sec.  1026.19(e), Sec.  1026.37(f)(1) 
requires the creditor to disclose the amounts of origination fees paid 
by the consumer to creditors and loan originators in connection with 
the loan, but not any amounts received by a loan originator from the 
creditor. However, as discussed below with respect to Sec.  
1026.38(f)(1), the full disclosure required by TILA section 128(a)(18) 
is included in the disclosure requirements for transactions subject to 
Sec.  1026.19(f). Accordingly, although certain TILA section 128(a)(18) 
disclosures are not included in the Loan Estimate, they are included in 
the Closing Disclosure.
    Consistent with Dodd-Frank section 1405(b), disclosure of only the 
direct charges the consumer will pay will reduce both consumer 
confusion and the possibility of information overload,

[[Page 79955]]

improve consumer understanding of the Loan Estimate, and make it easier 
for creditors or mortgage brokers to complete the estimates of closing 
costs, which is in the interest of consumers and in the public 
interest. In addition, consistent with TILA section 105(a) and RESPA 
section 19(a), the disclosure will effectuate the purposes of TILA and 
RESPA by promoting the informed use of credit and more effective 
disclosure of settlement costs by allowing consumers to focus only on 
the amounts they will pay. Furthermore, consistent with section 1032(a) 
of the Dodd-Frank Act, Sec.  1026.37(f)(1) will ensure that the 
origination costs for consumer credit transactions secured by real 
property are fully, accurately, and effectively disclosed to consumers 
in a manner that permits consumers to understand the costs, benefits, 
and risks associated with the product or service, in light of the facts 
and circumstances.
    As stated above, Sec.  1026.37(f)(1) is being adopted pursuant to 
the Bureau's exemption authority under TILA section 105(f) to exempt 
the creditor from the disclosure of loan originator compensation from 
the creditor, as required by TILA section 128(a)(18). The Bureau has 
considered the factors in TILA section 105(f) and determined that, for 
the reasons discussed above, an exception is appropriate under that 
provision. Specifically, the Bureau believes that the exemption is 
appropriate for all affected borrowers, regardless of their other 
financial arrangements and financial sophistication and the importance 
of the loan to them. Similarly, the Bureau believes that the exemption 
is appropriate for all affected loans, regardless of the amount of the 
loan and whether the loan is secured by the principal residence of the 
consumer. Furthermore, the Bureau believes that, on balance, the 
exemption will simplify the credit process without undermining the goal 
of consumer protection or denying important benefits to consumers. 
Accordingly, the Bureau is exempting the disclosures required pursuant 
to Sec.  1026.19(e) from the requirement in TILA section 128(a)(18) to 
itemize fees received by loan originators from the creditor.
37(f)(2) Services You Cannot Shop for
    Currently, Regulation X provides that third-party services required 
by the creditor and for which the creditor does not permit the consumer 
to shop are to be included, as applicable, in Blocks 3 (``Required 
services that we select'') and 4 (``Title services and lender's title 
insurance'') on the RESPA GFE. Regulation X also provides that charges 
for title services, like charges for origination services, are not 
itemized on the RESPA GFE, but are disclosed only as a total. See 
appendix C to Regulation X (instructions for Blocks 3, 4 ``all fees for 
title searches, examinations, and endorsements, for example, would be 
included in this total,'' and 6).
    Under the Bureau's proposal, the fees and charges listed under the 
subheading ``Services You Cannot Shop For'' pursuant to proposed Sec.  
1026.37(f)(2) would have been for services that the creditor requires 
in connection with the transaction, but that would be provided by 
persons other than the creditor or mortgage broker. Only items for 
which the creditor does not permit the consumer to shop in accordance 
with Sec.  1026.19(e)(1)(vi)(A) would have been listed under this 
subheading. As discussed above, Sec.  1026.19(e)(3)(ii) would have 
applied the same criterion in determining whether a creditor is 
considered to permit the consumer to shop for the particular service.
    Pursuant to Sec.  1026.37(f)(2), each item that would have been 
disclosed under the subheading ``Services You Cannot Shop For'' must 
include a descriptive name and the estimated charge, and the creditor 
must provide a subtotal of all such items. All items for which the 
charges relate to the provision of title insurance and the handling of 
the closing would have been required to be identified beginning with 
``Title -.'' The creditor would have been able to use up to 13 lines to 
itemize charges under the subheading for ``Services You Cannot Shop 
For.''
    Proposed comment 37(f)(2)-1 would have cross-referenced comments 
19(e)(1)(iv)-1, 19(3)(i)-1, and 19(e)(3)(iv)-1 through -3 for 
discussions of the factors relevant to determining whether a consumer 
is permitted to shop and whether a creditor has exercised good faith in 
providing estimates of charges. Proposed comment 37(f)(2)-2 would have 
provided examples of the services that might be listed under ``Services 
You Cannot Shop For.'' Proposed comment 37(f)(2)-3 would have provided 
examples of services that would be listed using a phrase beginning with 
``Title--.'' Proposed comment 37(f)(2)-4 would have clarified that the 
amount listed for the lender's title insurance coverage is the amount 
of the premium without any adjustment that might be made for the 
simultaneous purchase of an owner's title insurance policy, and cross-
referenced comment 37(g)(4)-1 for the disclosure of the premium for 
owner's title insurance.
    The Bureau sought comment on whether other limits on itemization, 
in addition to the proposed limits on the number of charges that may be 
itemized pursuant to Sec.  1026.37(f)(2), should be included in the 
final rule and, if so, what those limits should be. The Bureau did not 
receive comments on the information sought by the Bureau, but did 
receive comments that sought clarification related to where and the 
manner in which certain charges would be disclosed pursuant to proposed 
Sec.  1026.37(f)(2). Several national trade association commenters 
representing real property appraisers, as well as a number of 
individual appraiser commenters, stated that any charge for an 
appraisal management company (AMC) should be required to be separately 
itemized in Sec.  1026.37(f)(2). As noted in the Bureau's proposal, 
section 1475 of the Dodd-Frank Act permits the optional disclosure of 
the charges made by an AMC, but does not require separate itemization. 
See 77 FR 51116, 51134 (August 23, 2012). These commenters stated that 
the AMC charges should be mandated to be disclosed separately, instead 
of permitting the creditor to determine whether the AMC charge is 
disclosed separately. These commenters argued that consumers should be 
made aware that the amount paid to the appraiser is different than the 
charge for the appraisal on the disclosure forms. These commenters 
stated that they believe that the Bureau has the authority to mandate 
this disclosure. These commenters stated that failure to mandate such 
disclosure would perpetuate existing practices where consumers are 
deprived of crucial information that would open up options available to 
them if they understood the differences in the range of costs of a 
professional appraisal as well as the range of qualifications and depth 
of experience of the individuals performing the appraisal, depending on 
whether the appraisal is or is not ordered through an AMC. It is 
unclear from these comments, however, that a breakout of the AMC's 
charge from the appraisal would or could lead to the stated result 
sought by the commenters: that a consumer would utilize the different 
charges to question and seek an appraisal directly from an appraiser, 
rather than through the use of an AMC. The Bureau is not aware of any 
data or information supporting the commenters' belief that this 
disclosure would achieve their desired results, nor did the commenters 
supply any such data or information.
    Appraisals are third-party reports prepared for the benefit of the 
creditor as part of an evaluation of the value of the collateral being 
secured by the

[[Page 79956]]

property. RESPA recognizes that creditors are the parties that are 
obtaining the service, and explicitly provides an exemption from 
constraints on requiring the use of an affiliate for appraisals. 12 
U.S.C. 2607(c). In addition, many of the concerns identified by 
commenters have been the subject of other rulemakings directly 
concerning disclosures and information provided to the consumer in 
relation to appraisals, namely the 2013 ECOA Appraisals Final Rule and 
the 2013 Interagency Appraisals Final Rule. See 78 FR 7215 (January 31, 
2013) and 78 FR 10367 (February 13, 2013). The Bureau believes that, 
absent data or other information supporting the commenters' beliefs, it 
would be inappropriate to use its authority to modify the statutory 
disclosure provision of Dodd-Frank Act section 1475, because requiring 
breakouts of such charges to be disclosed in all cases may tend to 
produce information overload.\274\
---------------------------------------------------------------------------

    \274\ See Julie Agnew and Lisa Szykman, ``Annuities, Financial 
Literacy and Information Overload,'' in Financial Literacy: 
Implications for Retirement Security and the Financial Marketplace, 
Oxford University Press, 2011, available at http://ssrn.com/abstract=1707659.
---------------------------------------------------------------------------

    One national trade association commenter stated that there are some 
charges that cannot be viewed logically as ``shoppable'' or ``not 
shoppable'' and that they should, rather, be disclosed pursuant to 
proposed Sec.  1026.37(g). The charges listed were subordination or 
release fees charged in connection with a prior loan, or fees charged 
by a homeowner's association, condominium, or co-operative, the 
provider of which cannot be selected by the consumer. However, the 
charges discussed by the commenter are not related to other aspects of 
a residential real estate transaction, such as homeowner's association 
dues, but rather charges that are being incurred and passed along to 
the consumer based on services or reports being requested by the 
creditor during the underwriting process. For example, the referenced 
subordination charge is the result of a creditor's requirement that the 
loan being originated receive priority in relation to the loan being 
subordinated. Thus, the charge is not a result of other services 
requested or required to be paid by the consumer pursuant to State law 
or contract, but rather due to the creditor's requirements. Likewise, a 
charge from a homeowner's association for the service of providing 
documents and financial reports related to the homeowner's association 
to the creditor for its review is directly the result of the creditor's 
requirements, and not based on a service requested by the consumer or 
required to be paid by the consumer pursuant to State law or contract. 
If charges from the subordinating lender or the homeowner's association 
are unrelated to the creditor's requirements to originate the loan, 
such as outstanding homeowner's dues on the property, they would be 
disclosed under Sec.  1026.37(g) to the extent they are known to the 
creditor. For Sec.  1026.37(f)(2), regardless of the identity of the 
third party, the items disclosed are for charges incurred due to a 
creditor's requirements for which a consumer cannot select the provider 
of the service. Charges from a creditor associated with its preparing 
or negotiating a subordination agreement with a junior lienholder would 
be disclosed under Sec.  1026.37(f)(1).
    As discussed in connection with respect to Sec.  1026.37(f)(1), 
consumer testing performed on the Loan Estimate indicated that 
itemization related to improved performance of the participants in 
understanding both the services provided and the charges imposed for 
those services. Participants appeared more likely to negotiate fees and 
shop for services when provided additional details that helped them to 
understand the nature of the services and the potential value of 
shopping for a particular service. See Kleimann Testing Report at 287-
97.
    Other commenters stated that other types of lender's title 
insurance policies, which have rates different from those of the basic 
lender's title policy premium, should be permitted to be listed on the 
Loan Estimate. The commenters stated that some creditors will require 
that the consumer will obtain an ``enhanced'' lender's title insurance 
policy. The Bureau believes that flexibility to address the possibility 
that a lender may require a policy other than a basic lender's title 
insurance policy is appropriate and is modifying comment 37(f)(2)-4 to 
address this possibility.
    Two GSE commenters in an ex parte communication also stated that 
the proposal appeared to permit the disclosure of government program 
funding fees and upfront mortgage insurance charges that were not 
associated with a specific timeframe of coverage either under proposed 
Sec.  1026.37(f)(2) or proposed Sec.  1026.37(g)(4). These commenters 
sought clarification in order for creditors to disclose these items 
consistently. The Bureau believes that both the government program 
funding fees and upfront mortgage insurance charges referred to by the 
two commenters are services that the consumer must pay for and which 
are required by the creditor in connection with the loan program, and 
do not correlate to the provisions of Sec.  1026.37(g)(4), as discussed 
below. Therefore, the Bureau is amending comment 37(f)(2)-2 to include 
explicitly these charges as examples of charges disclosed pursuant to 
Sec.  1026.37(f)(2).
    Accordingly, the Bureau is adopting Sec.  1026.37(f)(2) and 
comments 37(f)(2)-1 and -3 as proposed. The Bureau is revising proposed 
comment 37(f)(2)-2 to reflect additional examples of services disclosed 
pursuant to Sec.  1026.37(f)(2) to provide greater clarity in light of 
the comments received. The Bureau is revising proposed comment 
37(f)(2)-4 to clarify that the creditor discloses under Sec.  
1026.37(f)(2) the premium of the type of lender's title insurance 
policy that it requires for the loan. The Bureau is adopting the 
requirements in Sec.  1026.37(f)(2) pursuant to its authority under 
TILA section 105(a) and RESPA section 19(a) because disclosure of 
third-party services required by a creditor for consummation of the 
loan, their component and total charges, and the fact that the creditor 
will limit the choice of providers for those services will promote the 
informed use of credit and more effective advance disclosure of 
settlement costs, which are purposes of TILA and RESPA, respectively. 
Dodd-Frank Act sections 1032(a) and 1405(b) are also sources of 
authority for the proposed requirements in Sec.  1026.37(f)(2). The 
information disclosed under Sec.  1026.37(f)(2) will enable consumers 
to understand and negotiate fees, shop for a mortgage loan, and compare 
the Loan Estimate with any revised Loan Estimate and the Closing 
Disclosure, thereby ensuring that the features of the mortgage 
transactions are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to understand the costs, 
benefits, and risks associated with the mortgage transaction, in light 
of the facts and circumstances, consistent with Dodd-Frank Act section 
1032(a). Furthermore, for the reasons stated above in relation to 
residential mortgage loans, the disclosure is in the interest of 
consumers and in the public interest, consistent with Dodd-Frank Act 
section 1405(b).
37(f)(3) Services You Can Shop for
    Currently, Regulation X provides that third-party services required 
by the creditor but for which the creditor permits the consumer to shop 
are to be included, as applicable, in Blocks 4 (``Title services and 
lender's title insurance'') and 6 (``Required services that you can 
shop for'') on the RESPA

[[Page 79957]]

GFE. Regulation X also provides that charges for title services, like 
charges for origination services, are not itemized on the RESPA GFE, 
but are disclosed only as a total. See appendix C to Regulation X 
(instructions for Blocks 3, 4 (``all fees for title searches, 
examinations, and endorsements, for example, would be included in this 
total''), and 6).
    Under the Bureau's proposal, the fees and charges listed under the 
subheading ``Services You Can Shop For'' pursuant to proposed Sec.  
1026.37(f)(3) would have been for services that the creditor would 
require in connection with its decision to make the loan, but that 
would be provided by persons other than the creditor or mortgage 
broker. Only items for which the creditor permits the consumer to shop 
in accordance with Sec.  1026.19(e)(1)(vi)(A) would have been listed 
under this subheading. Thus, all Loan Costs that are not paid to the 
creditor or mortgage broker would have been itemized exclusively under 
either this subheading or the subheading ``Services You Cannot Shop 
For.''
    As described below in the section-by-section analysis of Sec.  
1026.37(f)(5), each item disclosed under the subheading ``Services You 
Can Shop For'' would have been required to include a descriptive name 
and the estimated charge, and the creditor would have been required to 
provide a subtotal of all such items. All items for which the fees and 
charges relate to the provision of title insurance and the handling of 
the closing would have been required to be identified beginning with 
``Title--.'' The creditor would have been able to use up to 14 lines to 
itemize charges under this subheading.
    Proposed comment 37(f)(3)-1 would have provided cross-references to 
comments 19(e)(3)(ii)-1 through -3, 19(e)(3)(iii)-2, and 19(e)(3)(iv)-1 
through -3 for discussions of determining good faith in estimating the 
costs for required services when the consumer is permitted to choose 
the provider of those services. Proposed comment 37(f)(3)-2 would have 
provided examples of the services that might be listed under ``Services 
You Can Shop For.'' Proposed comment 37(f)(3)-3 would have provided 
cross-references to comments 37(f)(2)-3 and -4 for guidance on services 
that would be labeled beginning with ``Title--'' and on calculating the 
amount disclosed for lender's title insurance, and provided cross-
references to comment 37(g)(4)-1 for the disclosure of the premium for 
owner's title insurance.
    As discussed in connection with proposed Sec.  1026.37(f)(1) and 
(2), consumer testing performed on Loan Estimate forms indicated that 
itemization related to improved performance of the participants in 
understanding both the services charged and the costs of those 
services. Participants appeared more likely to negotiate fees and shop 
for services when provided additional details that helped them to 
understand the nature of the services and the potential value of 
shopping for a particular service.
    The Bureau sought comment on whether other limits on itemization, 
in addition to the proposed limits on the number of charges that may be 
itemized pursuant to Sec.  1026.37(f)(3), should be included in the 
final rule and, if so, what those limits should be. The Bureau did not 
receive comments concerning the information sought or otherwise related 
to proposed Sec.  1026.37(f)(3).
    Accordingly, the Bureau is adopting Sec.  1026.37(f)(3) and its 
accompanying commentary as proposed. The Bureau is adopting the 
requirements in Sec.  1026.37(f)(3) pursuant to its authority under 
TILA section 105(a) and RESPA section 19(a) because disclosure of 
third-party services required by a creditor for consummation of the 
loan, their component and total charges, and the fact that the creditor 
will permit the consumer to choose the providers for those services 
will promote the informed use of credit and more effective advance 
disclosure of settlement costs, which are purposes of TILA and RESPA 
respectively. Dodd-Frank Act sections 1032(a) and 1405(b) are also 
sources of authority for the proposed requirements in Sec.  
1026.37(f)(3). The information disclosed under Sec.  1026.37(f)(3) will 
enable consumers to understand and negotiate fees, shop for a mortgage 
loan, and compare the Loan Estimate with any revised Loan Estimate and 
the Closing Disclosure, thereby ensuring that the features of the 
mortgage transactions are fully, accurately, and effectively disclosed 
to consumers in a manner that permits consumers to understand the 
costs, benefits, and risks associated with the mortgage transaction, in 
light of the facts and circumstances, consistent with Dodd-Frank Act 
section 1032(a). Furthermore, for the reasons stated above in relation 
to residential mortgage loans, the disclosure is in the interest of 
consumers and in the public interest, consistent with Dodd-Frank Act 
section 1405(b).
37(f)(4) Total Loan Costs
    The Bureau's proposed Sec.  1026.37(f)(4) would have required the 
creditor to disclose, with the label ``Total Loan Costs,'' the sum of 
the subtotals disclosed under proposed Sec.  1026.37(f)(1) through (3) 
for Origination Charges, Services You Cannot Shop For, and Services You 
Can Shop For, respectively. This total would have generally represented 
all costs that the creditor and mortgage broker impose in connection 
with the transaction.
    Although a comparable total is not required to be stated on the 
current RESPA GFE, the same costs are included in other subtotals on 
the RESPA GFE. The Bureau believed that grouping and subtotaling these 
items in this way would have provided better information to the 
consumer about costs that are specific to obtaining the mortgage loan 
from the creditor. Other costs that the consumer may encounter as part 
of the transfer of ownership of the property are generally related to 
items and requirements for which the amounts are controlled by other 
entities or persons, including governmental jurisdictions and the 
consumer, and were addressed in proposed Sec.  1026.37(g).
    The Bureau did not receive comments in relation to proposed Sec.  
1026.37(f)(4). Accordingly, the Bureau is adopting Sec.  1026.37(f)(4) 
as proposed. The Bureau believes that grouping and subtotaling these 
items in this way will provide better information to the consumer about 
costs that are specific to obtaining the mortgage loan from the 
creditor. Other costs that the consumer may encounter as part of the 
transfer of ownership of the property are generally related to items 
and requirements for which the amounts are controlled by other entities 
or persons, including governmental jurisdictions and the consumer, and 
are addressed in proposed Sec.  1026.37(g). Accordingly, disclosure of 
this information will promote the informed use of credit and more 
effective advance notice of settlement costs, consistent with TILA 
section 105(a) and RESPA section 19(a). It will also ensure that the 
features of the mortgage transactions are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to better understand the costs, benefits, and risks associated with 
mortgage transactions, in light of the facts and circumstances, 
consistent with Dodd-Frank Act section 1032(a). Furthermore, for the 
reasons stated above in relation to residential mortgage loans, the 
proposed disclosure is in the interest of consumers and in the public 
interest, consistent with Dodd-Frank Act section 1405(b).
37(f)(5) Item Descriptions and Ordering
    The Bureau's proposed Sec.  1026.37(f)(5) would have required the 
creditor to use terminology that briefly and clearly

[[Page 79958]]

describes each item disclosed under Sec.  1026.37(f). Except for the 
item for points that the consumer will pay, which would have been 
required to be listed as the first item under the subheading 
``Origination Charges,'' all items would have been required to be 
listed in alphabetical order under the applicable subheading. The 
proposal would have required the creditor to use consistent 
descriptions and list the charges in the same sequential order on the 
Closing Disclosure pursuant to proposed Sec.  1026.38(h)(4). The 
current RESPA GFE and early TILA disclosure do not include a similar 
requirement. The Bureau believed that a consistent listing of the costs 
that appear on the Loan Estimate and the Closing Disclosure will 
facilitate the consumer's comparison of the two disclosure documents 
and understanding of the transaction as a whole.
    Commenters generally did not prefer the requirement to list the 
items in alphabetical order under the applicable subheading, and 
instead stated that an alternative method of ordering the items by hard 
coding the location of each item should be used, similar to how some 
items are hard coded on the current RESPA settlement statement. Since 
the descriptions can vary from jurisdiction to jurisdiction and 
creditor to creditor, while still meeting the requirement that each 
item be described, there does not appear to be any method to order the 
items without defining every service provided in residential real 
estate transactions and requiring a specific description of such 
service on the disclosures. Some commenters stated that the Bureau 
should define these services and mandate standard descriptions. 
However, the Bureau did not propose any such definitions and does not 
believe it would be appropriate to finalize standard descriptions for 
real estate settlement services in this final rule. One large bank 
commenter requested additional clarity on whether abbreviations are 
permitted under proposed Sec.  1026.37(f)(5). As long as the 
abbreviation is consistent with the requirements of Sec.  1026.37(f)(5) 
and the abbreviation describes that item, an abbreviation could be 
utilized by the creditor in completing the Loan Estimate.
    Accordingly, the Bureau is adopting Sec.  1026.37(f)(5) 
substantially as proposed. The final provision does not contain the 
proposed requirement to describe the disclosed items briefly and 
clearly, because the Bureau believes that the clear and conspicuous 
standard in Sec.  1026.17(a)(1) is sufficient to provide clarity 
concerning how to describe the items on the Loan Estimate. The Bureau 
also believes the additional clarity regarding compliance with this 
requirement would facilitate compliance, satisfying one of the purposes 
of the integrated disclosures under sections 1098 and 1100A of the 
Dodd-Frank Act, and thus, is adopting new comment 37(f)(5)-1, which 
provides guidance regarding the requirement to label items with 
terminology that describes each item. The Bureau believes that a 
consistent listing of the costs that appear on the Loan Estimate and 
the Closing Disclosure will facilitate the consumer's comparison of the 
two disclosure documents and the consumer's understanding of the 
transaction as a whole. Accordingly, this requirement will effectuate 
the purposes of TILA and RESPA by promoting the informed use of credit 
and more effective advance notice of settlement costs, consistent with 
TILA section 105(a) and RESPA section 19(a), and will ensure that the 
features of the mortgage transactions are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to better understand the costs, benefits, and risks associated with 
mortgage transactions, in light of the facts and circumstances, 
consistent with Dodd-Frank Act section 1032(a).
37(f)(6) Use of Addenda
    The Bureau's proposed Sec.  1026.37(f)(6) would have provided that 
addenda may not be used to itemize disclosures required by Sec.  
1026.37(f)(1) or (2). If the creditor is not able to itemize all of the 
charges required to be disclosed in the number of lines provided under 
Sec.  1026.37(f)(1)(ii) and (f)(2)(ii), the remaining charges would 
have been required to be disclosed as an aggregate amount in the last 
line permitted under the applicable paragraph. An addendum would have 
been permitted to be used to itemize disclosures required by Sec.  
1026.37(f)(3), or alternatively a creditor would have been permitted to 
disclose any remaining charges as an aggregate amount in the last line 
permitted under Sec.  1026.37(f)(3).
    Proposed comment 37(f)(6)-1 would have clarified that a creditor is 
permitted to provide additional disclosures that are required by State 
law, as long as those disclosures are provided on a document whose 
pages are separate from, and are not presented as part of, the 
disclosures provided in accordance with Sec.  1026.37(f). Proposed 
comment 37(f)(6)-2 would have provided an example of a label that may 
be used to reference an addendum as permitted under Sec.  
1026.37(f)(6)(ii).
    Commenters generally stated that the Loan Estimate did not provide 
enough lines for entries in the subparagraphs of proposed Sec.  
1026.37(f). Examples of additional charges that were provided by 
commenters included many charges that would be likely disclosed 
pursuant to proposed Sec.  1026.37(f)(3), which permits the use of an 
addendum to itemize additional charges, reducing the need for more 
lines pursuant to the subparagraphs of proposed Sec.  1026.37(f). In 
addition, the Bureau is concerned about the potential for information 
overload on the Loan Estimate. See Kleimann Testing Report at 7. The 
Bureau believes that the number of itemized charges permitted under 
proposed Sec.  1026.37(f) is sufficient to aid consumer understanding 
of the services required by the creditor to obtain the mortgage loan, 
and to enable consumer negotiation. In addition, permitting the use of 
an addendum for services for which the consumer can shop for the 
service provider enables consumers to shop for and to negotiate the 
costs and quality of such services. However, because the consumer 
cannot shop for the services providers for the costs disclosed under 
Sec.  1026.37(f)(1) and (2), the Bureau believes that it is 
appropriate, in light of its concern regarding information overload, 
that those charges in excess of the 13 permitted for each section be 
disclosed as an aggregate number.
    Accordingly, the Bureau is adopting Sec.  1026.37(f)(6) and its 
accompanying commentary as proposed. The Bureau is adopting the 
requirements in Sec.  1026.37(f)(6) pursuant to its authority under 
TILA section 105(a) and RESPA section 19(a) because standardization of 
the information provided on the disclosures required under Sec.  
1026.19(e) will provide consistent information that consumers will be 
able to use to better understand the mortgage transaction, shop for 
loans, and compare the Loan Estimate with any revised Loan Estimate and 
the Closing Disclosure, thereby promoting the informed use of credit 
and more effective advance disclosure of settlement costs, which are 
purposes of TILA and RESPA, respectively. This standardization also 
will ensure that the features of the mortgage transactions are fully, 
accurately, and effectively disclosed to consumers in a manner that 
permits consumers to more readily understand the costs, benefits, and 
risks associated with the mortgage transaction, in light of the facts 
and circumstances, consistent with Dodd-Frank Act section 1032(a), 
which is also a source of authority for the proposed requirements.

[[Page 79959]]

37(g) Closing Cost Details; Other Costs
    Under section 5(c) of RESPA, lenders must provide applicants for 
federally related mortgage loans with a good faith estimate of the 
amount or range of charges for specific settlement services the 
applicant is likely to incur in connection with the settlement of the 
loan. 12 U.S.C. 2604(c). Section 1024.7 of Regulation X currently 
implements this mandate by requiring lenders and mortgage brokers to 
provide the RESPA GFE, which must be completed in accordance with the 
instructions in appendix C to Regulation X. Appendix C sets out 
specific instructions for the information that must be disclosed on the 
RESPA GFE, including which loan costs must be included and how to 
identify those costs on the RESPA GFE.
    As discussed above, Dodd-Frank Act section 1032(f) requires the 
Bureau to propose rules to combine these RESPA disclosures with the 
pre-consummation disclosures required by TILA. In addition to existing 
TILA disclosure requirements, section 1419 of the Dodd-Frank Act 
amended TILA section 128(a) to require, in the case of a residential 
mortgage loan, disclosure of the aggregate amount of settlement charges 
for all settlement services provided in connection with the loan and 
the aggregate amount of other fees or required payments in connection 
with the loan. 15 U.S.C. 1638(a)(17).
    The Bureau's proposed Sec.  1026.37(g) would have required 
creditors to disclose as ``Other Costs'' on the Loan Estimate certain 
items that are in addition to the Loan Costs that are specifically 
required by the creditor before consummation of a credit transaction 
and are disclosed pursuant to Sec.  1026.37(f). The ``Other Costs'' 
disclosed pursuant to Sec.  1026.37(g) generally would have been those 
necessary to complete the real estate closing. These items usually 
concern payments for governmental requirements, insurance premiums, and 
items that are charged by parties involved in the property transaction 
other than the creditor. The creditor would have been required to 
disclose under four subheadings individual itemized charges, along with 
subtotals for categories of those itemized charges.
    Proposed comment 37(g)-1 would have described the kinds of charges 
that are disclosed under Sec.  1026.37(g). Proposed comment 37(g)-2 
would have clarified that items that are paid at or before closing 
under the real estate contract are not disclosed on the Loan Estimate, 
except to the extent the creditor is aware of those charges at the time 
the Loan Estimate is issued. These items would have been required to be 
disclosed, however, in the Closing Disclosure pursuant to proposed 
Sec.  1026.38(f), (g), (j) and (k).
    The Bureau did not receive comments on proposed Sec.  1026.37(g) in 
general, but did receive comments concerning the specific items 
disclosed pursuant to the subparagraphs of Sec.  1026.37(g), which are 
discussed below. Accordingly, the Bureau is adopting Sec.  1026.37(g) 
and its accompanying commentary generally as proposed, except to the 
extent that modifications are made to the subparagraphs and 
accompanying commentary, as described below.
    Pursuant to its authority under Dodd-Frank Act section 1032(f), 
TILA section 105(a), and RESPA section 19(a), the Bureau is requiring 
creditors to disclose the loan costs and other costs imposed upon the 
consumer in tables as part of the integrated Loan Estimate. Section 
1026.37(f) and (g) implement the early disclosure requirements in TILA 
and RESPA by requiring disclosure of costs associated with the consumer 
credit transaction, including loan costs and other costs. Based on its 
consumer testing, the Bureau believes that early disclosure of 
estimated loan costs and other costs, as set forth in Sec.  1026.37(f) 
and (g), will improve consumer understanding of the credit and property 
transactions. See Kleimann Testing Report at 277-80, Kleimann Post-
Proposal Testing Report at 71, Kleimann Quantitative Study at 51-52. 
The Bureau believes that these disclosures will effectuate the purpose 
of TILA by promoting the informed use of credit and assuring a 
meaningful disclosure to consumers. The Bureau believes that the 
disclosures also will satisfy the RESPA requirement to provide a 
consumer with a good faith estimate of the amount or range of charges 
for specific settlement services the consumer is likely to incur in 
connection with the closing. Dodd-Frank Act sections 1032(a) and 
1405(b) are also sources of authority for Sec.  1026.37(f) and (g). 
These disclosures will ensure that the features of the mortgage 
transaction are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to understand the costs, 
benefits, and risks associated with the mortgage transaction, in light 
of the facts and circumstances, consistent with Dodd-Frank Act section 
1032(a). Furthermore, for the reasons stated above in relation to 
residential mortgage loans, the rule is in the interest of consumers 
and in the public interest, consistent with Dodd-Frank Act section 
1405(b).
    As discussed in more detail below in the section-by-section 
analysis of Sec.  1026.37(g)(5) and (6), the final rule requires 
creditors to disclose under the heading ``Other Costs'' the totals of 
other costs, the total of loan costs plus other costs, lender credits, 
and the total closing costs. Consumer feedback from the Bureau's 
consumer testing indicated that clear amounts for the total costs of 
the loan and real estate closing were also important to consumers' 
understanding of the complete transaction. In general, all of these 
charges are currently required to be disclosed--as itemized or 
aggregate charges and amounts--on the RESPA GFE, the RESPA settlement 
statement, or both. Combining these charges and totals into the 
disclosures required by Sec.  1026.19(e) will enable consumers to 
understand the services and charges related to the credit and real 
estate transactions, shop for the settlement services in connection 
with the transaction, and more easily compare the Loan Estimate with 
any revised Loan Estimate and the Closing Disclosure, thereby ensuring 
that the features of the mortgage transactions are fully, accurately, 
and effectively disclosed to consumers in a manner that permits 
consumers to understand the costs, benefits, and risks associated with 
the mortgage transaction, in light of the facts and circumstances, 
consistent with Dodd-Frank Act section 1032(a).
37(g)(1) Taxes and Other Government Fees
    The Bureau's proposed Sec.  1026.37(g)(1) would have required the 
disclosure of taxes and other government fees for recording of 
documents and transfer taxes assessed against the purchase price of a 
real estate contract or the loan amount under the subheading ``Taxes 
and Other Government Fees.'' Proposed Sec.  1026.37(g)(1)(i) would have 
required the disclosure of the sums of all recording fees and other 
government fees and taxes, except transfer taxes, using the label 
``Recording Fees and Other Taxes.'' Proposed Sec.  1026.37(g)(1)(ii) 
would have required the disclosure of the sum of all transfer taxes 
using the label ``Transfer Taxes.''
    Proposed comment 37(g)(1)-1 would have clarified that recording 
fees are assessed by a government authority in order to record and 
index documents related to property transfers under State or local law. 
Proposed comment 37(g)(1)-2 would have clarified that government 
charges that are not transfer taxes are disclosed with recording fees 
under Sec.  1026.37(g)(1)(i). Proposed comment 37(g)(1)-3 would have 
explained that, in general, transfer taxes

[[Page 79960]]

are State and local government fees on mortgages and home sales that 
are based on the loan amount or sales price. Proposed comment 37(g)(1)-
4 would have clarified that the only transfer taxes disclosed under 
Sec.  1026.37(g)(1) are transfer taxes imposed on the consumer, as 
determined under State or local law, and that if unpaid transfer taxes 
can result in a lien being placed on the property of the consumer, the 
transfer tax is disclosed under Sec.  1026.37(g)(1). The comment 
further clarifies that if State or local law is unclear, or does not 
specifically attribute the transfer tax, the creditor may use common 
practice in the locality of the property to apportion the amount of the 
transfer tax disclosed as paid by the consumer under Sec.  
1026.37(g)(1). Proposed comment 37(g)(1)-5 would have explained that 
although transfer taxes paid by the seller in a purchase transaction 
are not disclosed pursuant to Sec.  1026.37(g), they are disclosed on 
the Closing Disclosure under Sec.  1026.38(g)(1)(ii). Proposed comment 
37(g)(1)-6 would have clarified that the lines and labels required 
under Sec.  1026.37(g)(1) may not be deleted, and that additional items 
may not be listed under the subheading.
    Commenters specifically provided information on the disclosure of 
transfer taxes. Two national industry trade associations stated that 
the allocation of transfer taxes between a consumer and a seller can 
vary based on State law and local custom, and that applicable laws 
often permit the consumer and seller to allocate the payment of 
transfer taxes between themselves during the real estate settlement 
process through negotiation and modification of their contract. The 
commenters stated that this could lead to differing approaches by 
creditors. These commenters raised a concern that many creditors would 
disclose transfer taxes if the consumer could possibly pay them, while 
less risk-adverse creditors would not disclose these transfer taxes. 
The commenters stated that this could make it more difficult to 
comparison shop, since the amount paid by the consumer at closing will 
depend on negotiations between the consumer and seller, which may 
change at any time prior to consummation. Thus, the commenters stated 
that it would be preferable to disclose always the transfer taxes if 
the consumer possibly could pay them, and if the real estate sales 
contract later confirms that the seller has agreed to pay some or all 
of those taxes, a revised disclosure can be provided under Sec.  
1026.19(e)(3)(iv).
    Other industry commenters suggested that the method of disclosure 
of transfer taxes required under the current Regulation X on the RESPA 
GFE should be used, without any discussion of how that would differ 
from proposed Sec.  1026.37(g)(1). One industry commenter suggested 
deleting the example in proposed comment 37(g)(1)-4 of State law 
attaching a lien on the consumer's acquired property if the transfer 
tax is not paid, as an example of a situation where the State law 
places responsibility on the consumer to pay the transfer tax.
    The Bureau believes that the effect of proposed Sec.  1026.37(g)(1) 
would have been to require creditors to disclose the amount of transfer 
taxes for which the consumer is liable, either from State or local law, 
or the real estate sales contract. Only if State or local law were 
unclear would common practice be used by creditors to determine the 
amounts to be disclosed. The Bureau believes this result is 
appropriate, because RESPA section 5(c) requires disclosure of good 
faith estimates of the charges ``the borrower is likely to incur in 
connection with the settlement . . . .'' 12 U.S.C. 2604(c). If State or 
local law, or the real estate contract is unclear, the Bureau believes 
the common practice in the locality of the property is an appropriate 
measure of the charge the consumer is likely to pay.
    Accordingly, the Bureau is adopting Sec.  1026.37(g)(1) and its 
accompanying commentary as proposed, except with a minor modification 
to require the amounts not charged to be left blank instead of 
disclosed as a zero dollar amount, to reduce the amount of numbers on 
the page and the potential for information overload. The Bureau is 
adopting the requirements in Sec.  1026.37(g)(1) pursuant to its 
authority under TILA section 105(a) and RESPA section 19(a) because 
disclosure of taxes and government fees required to be paid in the real 
estate closing will educate consumers about costs they must be prepared 
to pay in the transaction, thereby promoting the informed use of credit 
and more effective advance disclosure of settlement costs, which are 
purposes of TILA and RESPA respectively. Dodd-Frank Act sections 
1032(a) and 1405(b) are also sources of authority for the requirements 
in Sec.  1026.37(g)(1). This information also ensures that the features 
of the mortgage transaction are fully, accurately, and effectively 
disclosed to consumers in a manner that permits consumers to understand 
the costs, benefits, and risks associated with the mortgage 
transaction, in light of the facts and circumstances, consistent with 
Dodd-Frank Act section 1032(a). Furthermore, for the reasons stated 
above in relation to residential mortgage loans, the disclosure is in 
the interest of consumers and in the public interest, consistent with 
Dodd-Frank Act section 1405(b).
37(g)(2) Prepaids
    The Bureau's proposed Sec.  1026.37(g)(2) would have required the 
disclosure under the subheading ``Prepaids'' of prepaid charges for 
real estate property taxes, insurance premiums, and other items that 
must be paid to insure the property or satisfy real estate tax 
obligations, as well as other charges that must be satisfied before 
consummation of the credit transaction and the real estate closing. 
Proposed Sec.  1026.37(g)(2) also would have prescribed some of the 
items, and additional information about those items, that must be 
included under the subheading ``Prepaids.'' Proposed Sec.  
1026.37(g)(2)(i)-(iv) would have required the first four items to be 
disclosed with the labels of ``Homeowner's Insurance Premium (----
months),'' ``Mortgage Insurance Premium (----months),'' ``Prepaid 
Interest (------per day for ----days @ ----%),'' and ``Property 
Taxes,'' respectively, together with the corresponding total dollar 
amount to be paid.
    Proposed comment 37(g)(2)-1 would have provided examples of other 
periodic charges that are required to be paid at consummation and are 
disclosed under Sec.  1026.37(g)(2). Proposed comment 37(g)(2)-2 would 
have clarified that the interest rate disclosed under Sec.  
1026.37(g)(2)(iii) is the same interest rate that is disclosed under 
Sec.  1026.37(b)(2). Proposed comment 37(g)(2)-3 would have clarified 
that the terms ``property taxes,'' ``homeowner's insurance,'' and 
``mortgage insurance'' have the same meaning as those terms are used 
under Sec.  1026.37(c) and its commentary. Proposed comment 37(g)(2)-4 
would have clarified that the lines and labels required under Sec.  
1026.37(g)(2) may not be deleted.
    Commenters stated that the subheading ``Prepaids'' could be 
confusing to consumers. Specifically, they were concerned that 
consumers could confuse the items disclosed under the subheading 
required by proposed Sec.  1026.37(g)(2) with items included as the 
prepaid finance charge in the calculation of the finance charge and the 
APR under TILA. Prior studies conducted by other Federal agencies as 
well as consumer testing conducted by the Bureau, however, indicate 
that consumers do not readily understand the disclosures of the finance 
charge and APR on the current disclosures required under TILA or on 
some of the early prototypes of the integrated

[[Page 79961]]

disclosures. See Board-HUD Joint Report at 10; Board's 2009 Closed-End 
Proposal, 74 FR 43232, 43296-97; Kleimann Testing Report at 61, 84, 
101. The Bureau does not believe that consumers will confuse the items 
charged pursuant to Sec.  1026.37(g)(2) with the regulatory defined 
term finance charge, prepaid finance charge, or APR.
    Several industry and national trade group commenters stated that 
the requirement to disclose any prepaid interest based on a fully-
indexed rate pursuant to proposed Sec.  1026.37(g)(2)(iii) would result 
in the amount disclosed to be inaccurate for all adjustable rate 
mortgages, in some cases too high and in others too low. Instead, they 
stated that the initial interest rate should be used instead of the 
fully-indexed rate for the amount of prepaid interest pursuant to 
proposed Sec.  1026.37(g)(2)(iii). Several commenters were confused 
regarding the requirement to disclose the initial interest rate under 
proposed Sec.  1026.37(b)(2). As discussed in the section-by-section 
analysis for proposed Sec.  1026.37(b)(2), that provision would have 
required disclosure of the fully-indexed interest rate, if applicable, 
only if the initial interest rate were not known at consummation for an 
adjustable rate loan. Accordingly, proposed Sec.  1026.37(g)(2)(iii) 
would have required the prepaid interest disclosure to be based on an 
introductory interest rate if one applied to the transaction in an 
adjustable rate loan. Several commenters, in response to Sec.  
1026.37(g)(2) as well as Sec. Sec.  1026.37(g)(3) and 1026.38(g)(2) and 
(3), stated that the terms ``mortgage insurance,'' ``homeowner's 
insurance,'' and ``property taxes'' were unclear and that creditors may 
have difficulty in properly disclosing these amounts due to a general 
reference to other sections of the proposed rule.
    Accordingly, the Bureau is adopting Sec.  1026.37(g)(2) and 
comments 37(g)(2)-1, -2, and -4 as proposed. The Bureau is not 
modifying comment 37(g)(2)-2 because the Bureau is modifying Sec.  
1026.37(b)(2) to provide greater clarity regarding the interest rate to 
be disclosed. Comment 37(g)(2)-3 is being modified to provide more 
precise references to definitions of the terms ``mortgage insurance,'' 
``homeowner's insurance,'' and ``property taxes'' in response to 
commenters' requests for more precise definitions.
    The Bureau is adopting the requirements in Sec.  1026.37(g)(2) 
pursuant to its authority under TILA section 105(a) and RESPA section 
19(a) because disclosure of charges that must be satisfied as part of 
the mortgage transaction will educate consumers about costs they must 
be prepared to pay, thereby promoting the informed use of credit and 
more effective advance disclosure of settlement costs, which are 
purposes of TILA and RESPA respectively. Dodd-Frank Act sections 
1032(a) and 1405(b) are also sources of authority for this requirement. 
This information ensures that the features of the mortgage transactions 
are fully, accurately, and effectively disclosed to consumers in a 
manner that permits consumers to understand the costs, benefits, and 
risks associated with the transaction, in light of the facts and 
circumstances, consistent with Dodd-Frank Act section 1032(a). 
Furthermore, for the reasons stated above in relation to residential 
mortgage loans, the disclosure is in the interest of consumers and in 
the public interest, consistent with Dodd-Frank Act section 1405(b).
37(g)(3) Initial Escrow Payment at Closing
    Disclosure of the initial payment for the establishment of an 
escrow account currently is required under Sec. Sec.  1024.7 and 
1024.17 of Regulation X, and the items and amounts must be disclosed in 
Block 9 of the RESPA GFE. The Bureau's proposed Sec.  1026.37(g)(3) 
would have required the disclosure of the initial payments to establish 
an escrow account to pay for future recurring charges. Proposed Sec.  
1026.37(g)(3) also would have prescribed some of the items, and 
additional information about those items, that must be included under 
the subheading ``Initial Escrow Payment at Closing.''
    Proposed comment 37(g)(3)-1 would have clarified that, for any item 
required to be listed that is not charged to the consumer, the monthly 
payment amount and time period may be left blank, but the dollar amount 
for the item must be shown as zero. Proposed comment 37(g)(3)-2 would 
have clarified that the aggregate escrow account adjustment required 
for the RESPA settlement statement under Regulation X Sec.  
1024.17(d)(2) is not included on the Loan Estimate, but is included on 
the Closing Disclosure under Sec.  1026.38(g)(3). Proposed comment 
38(g)(3)-3 would have clarified that ``property taxes,'' ``homeowner's 
insurance,'' and ``mortgage insurance'' have the same meaning as those 
terms are used under Sec.  1026.37(c) and its commentary. Proposed 
comment 37(g)(3)-4 would have clarified that the lines and labels 
required under Sec.  1026.37(g)(3) may not be deleted.
    Very few commenters provided comments on this subparagraph. A large 
bank commenter requested more clarity of when an amount is disclosed as 
prepaid under Sec.  1026.37(g)(2) versus when it would be included 
under Sec.  1026.37(g)(3), since the initial escrow payment will also 
be made in advance of the first payment due, as are prepaids under 
Sec.  1026.37(g)(2). However, prepaids are payments made to the entity 
that imposes the charge, such as county governments for county-imposed 
real estate property taxes. The initial escrow payment to be made at 
closing pursuant to Sec.  1026.37(g)(3) would be for payments made to 
the creditor, or its successor in interest, to establish an escrow or 
impound account for future payment of such charges pursuant to 
Regulation X in Sec.  1024.17. A document preparation/software 
commenter stated that it believed that not enough lines were provided 
for the initial escrow account disclosure. However, the commenter did 
not provide any further reasons why three preprinted lines for the most 
common charges included in an escrow account: homeowner's insurance, 
mortgage insurance, and property taxes, together with five additional 
permissible lines for other charges included in an escrow or impound 
account, would be insufficient. The commenter also seemed to be under 
the impression that only three items were permitted to be disclosed 
under Sec.  1026.37(g)(3), which does not take into account the five 
additional lines permitted under Sec.  1026.37(g)(3)(v).
    Another document preparation/software commenter stated that the 
aggregate adjustment required under Regulation X in Sec.  1024.17(d)(2) 
also should be disclosed pursuant to Sec.  1026.37(g)(3). However, the 
requirements of Regulation X in Sec.  1024.17(d)(2) presuppose 
knowledge about the timing and amount of payments that may not be known 
to and verified by the creditor when the Loan Estimate is issued. An 
industry commenter stated that some jurisdictions have multiple taxes 
assessed against real property. In some cases, the commenter stated the 
dates of these taxes cover differing dates and are due at different 
times. The commenter stated that the proper way to address these 
occurrences would be to itemize the taxes separately pursuant to 
proposed Sec.  1026.37(g)(3)(v). The Bureau acknowledges this issue and 
believes a separate itemization for taxes assessed for different 
periods would be necessary to perform an initial escrow account 
analysis pursuant to Regulation X

[[Page 79962]]

Sec.  1024.17(c)(2). The Bureau believes that proposed Sec.  
1026.37(g)(3) permits this itemization. However, for additional 
clarity, comment 37(g)(3)-5 is revised to explain expressly that this 
practice is permitted. Several commenters, in response to Sec.  
1026.37(g)(3) as well as Sec. Sec.  1026.37(g)(2) and 1026.38(g)(2) and 
(3), stated that the terms ``mortgage insurance,'' ``homeowner's 
insurance,'' and ``property taxes'' were unclear and that creditors may 
have difficulty in properly disclosing these amounts due to a general 
reference to other sections of the proposed rule.
    Accordingly, the Bureau is adopting Sec.  1026.37(g)(3) and its 
comments 37(g)(3)-1, -2 and -4 as proposed, except with a minor 
modification to require the amount not charged to be left blank instead 
of disclosed as a zero dollar amount, to reduce the amount of numbers 
on the page. The Bureau is adopting comment 37(g)(3)-3 with 
modifications to provide more precise references to definitions of the 
terms ``mortgage insurance,'' ``homeowner's insurance,'' and ``property 
taxes'' in response to commenters' requests for more precise 
definitions. In addition, the Bureau is adopting comment 37(g)(3)-5, 
which clarifies that, when more than one tax is assessed on the real 
property that secures the loan and the taxes are not paid at the same 
time, the additional property tax may be separately itemized under 
Sec.  1026.37(g)(3), in accordance with Sec.  1024.17, as applicable.
    The Bureau is adopting the requirements in Sec.  1026.37(g)(3) 
pursuant to its authority under TILA section 105(a) and RESPA section 
19(a) because disclosure of initial payments that consumers are 
required to make to establish escrow accounts for future recurring 
charges will educate consumers about costs they must be prepared to pay 
in the mortgage transaction, thereby promoting the informed use of 
credit and more effective advance disclosure of settlement costs, which 
are purposes of TILA and RESPA, respectively. Dodd-Frank Act sections 
1032(a) and 1405(b) are also sources of authority for the proposed 
requirements. This information ensures that the features of the 
mortgage transactions are fully, accurately, and effectively disclosed 
to consumers in a manner that permits consumers to understand the 
costs, benefits, and risks associated with the transaction, in light of 
the facts and circumstances, consistent with Dodd-Frank Act section 
1032(a). Furthermore, for the reasons stated above in relation to 
residential mortgage loans, the disclosure is in the interest of 
consumers and in the public interest, consistent with Dodd-Frank Act 
section 1405(b).
37(g)(4) Other
    Currently, the only other disclosure required by Regulation X for 
closing costs not addressed under proposed Sec.  1026.37(f) and (g)(1), 
(2), or (3) would be a disclosure for an owner's title insurance policy 
under the instructions in appendix C for Block 5. The Bureau's proposed 
Sec.  1026.37(g)(4) would have required the disclosure of any other 
items that the consumer has become legally obligated to pay in 
connection with the transaction, to the extent that the existence of 
these items is known by the creditor at the time the Loan Estimate is 
issued. The label for any item that is a component of title insurance 
would have required the inclusion of the description ``Title--'' at the 
beginning. The label for all items for which the amounts disclosed are 
premiums for separate optional insurance, warranty, guarantee, or 
event-coverage products would have required the inclusion of the 
parenthetical ``(optional)'' at the end. The items that would have been 
disclosed under proposed Sec.  1026.37(g)(4) are not required by the 
creditor. These items would not have included additional coverage or 
endorsements added to products required by the creditor. Accordingly, 
they would not have been disclosed under other paragraphs of proposed 
Sec.  1026.37(f) or (g) and are disclosed under the subheading 
``Other.'' These items are voluntary products that the consumer may be 
likely or may have already elected to purchase, and of which the 
creditor knows or is aware.
    Proposed comment 37(g)(4)-1 would have clarified that any owner's 
title insurance policy premium disclosed under Sec.  1026.37(g)(4) is 
based on a basic rate, and not an ``enhanced'' premium. Proposed 
comment 37(g)(4)-1 would have provided an example of a label for 
owner's title insurance and would have cross-referenced comment 
37(f)(2)-4 for disclosure of the premium for lender's title insurance. 
Proposed comment 37(g)(4)-2 would have clarified that any title 
insurance policy disclosed on the Loan Estimate based on a simultaneous 
issuance calculation must be disclosed by adding the full owner's title 
insurance premium plus the simultaneous issuance premium, and then 
deducting the amount of the lender's title insurance at the full 
premium rate. Proposed comment 37(g)(4)-3 would have provided examples 
of products to which the description ``(optional)'' applies and cross-
referenced comments 4(b)(7) and (b)(8)-1 through -3 and comments 
4(b)(10)-1 and -2 for descriptions and guidance concerning disclosure 
of premiums for credit life, debt suspension, and debt cancellation 
coverage. Proposed comment 37(g)(4)-4 would have provided examples of 
other items that are disclosed under Sec.  1026.37(g)(4) if known by 
the creditor at the time the Loan Estimate is issued and would have 
referred to comment 19(e)(3)(iii)-3 concerning application of the good 
faith requirement for services that are not required by the creditor.
Notation of an Owner's Title Insurance Policy Premium as ``(Optional)''
    Many industry commenters stated that the disclosure under Sec.  
1026.37(g)(4) and Sec.  1026.38(g)(4) of owner's title insurance 
premiums should not contain the notation ``(optional)'' and provided 
several reasons. Many stated that HUD and State governments have 
generally determined that an owner's title insurance policy is 
beneficial to the consumer. Others also stated that the notation may be 
confusing to consumers, and may even encourage consumers to forego 
obtaining an owner's title insurance policy and instead mistakenly rely 
on the lender's title insurance policy to provide coverage to the 
consumer. A law firm commenter stated that the owner's title insurance 
policy is the only product disclosed on the Loan Estimate that provides 
insurance for a consumer's interest in the real property. One commenter 
stated that the notation may require settlement agents to provide legal 
advice about the optional nature of an owner's title insurance policy, 
possibly in contravention of State laws related to the unauthorized 
practice of law.
    One credit union commenter supported the notation. One State trade 
association commenter suggested that the owner's title insurance 
premium should be required to be disclosed on the Loan Estimate only 
when a creditor requires a consumer to obtain it. Another industry 
commenter indicated that the proposed notation of ``(optional)'' was 
preferable to ``(not recommended).'' Commenters did suggest 
alternatives to the ``(optional)'' notation, which included 
``(recommended)'' or ``(optional--decline at your own risk).'' These 
suggested alternatives were only submitted with respect to the owner's 
title insurance premium, and not other optional insurance products.
    Based on these comments, in particular the comment by the State 
trade association suggesting that

[[Page 79963]]

owner's title insurance be disclosed when required by the creditor, the 
Bureau considered removing any requirement to disclose a non-required 
owner's title insurance premium on the Loan Estimate for purchase 
transactions rather than merely revising the proposed notation 
associated with the owner's title insurance premium. This, however, 
would remove a sizeable cost from the Loan Estimate that a consumer may 
be likely to pay and thereby reduce the accuracy of the Loan Estimate. 
Additionally, if not disclosed on the Loan Estimate, the cost of an 
owner's title insurance policy would not be subject to any tolerance 
level under Sec.  1026.19(e)(3), making the consumer protections 
related to the tolerance levels in applicable to a charge that 
frequently is a large dollar amount. Accordingly, the Bureau concludes 
that the owner's title insurance premium should be disclosed on the 
Loan Estimate in a purchase transaction if a consumer is likely to pay 
for it, regardless of whether the policy is required by the creditor.
    Many commenters opposed to the proposed ``(optional)'' designation 
for the owner's title insurance premium were concerned that the 
``(optional)'' designation is a signal to consumers that they do not 
need the service, and can safely reduce costs by declining the service. 
Commenters seemed to have assumed that the only information that 
consumers receive when obtaining a purchase money mortgage loan is the 
Loan Estimate. However, this view does not take into account the myriad 
sources of information related to the purchase of residential real 
estate. Other information, such as the special information booklet 
under Sec.  1026.19(g) of this final rule, State disclosure 
requirements,\275\ and marketing materials from title insurance agents 
and underwriters, all will provide consumers with additional 
information concerning an owner's title insurance policy that can lead 
a consumer to choose to obtain this insurance product. The rule only 
requires the ``(optional)'' designation for the purpose of informing 
the consumer that the creditor is not requiring that particular 
service, distinguishing such from the services required by the creditor 
under Sec.  1026.37(f) and (g). Providing a stronger signal to 
consumers, whether by a notation of ``(recommended)'' or ``(decline at 
your own risk)'' would essentially amount to the Loan Estimate 
marketing this product to the consumer. However, the Bureau believes 
that the consumer should make a decision to obtain owner's title 
insurance coverage based on available information, and that an informed 
consumer should decide whether it is in his or her best interest. 
Accordingly, the Bureau is finalizing this aspect of the regulation as 
proposed.
---------------------------------------------------------------------------

    \275\ Twenty-two States have disclosure requirements with 
respect to an owner's title insurance policy. See, e.g., Ala. Code 
Sec.  27-25-7; Ark. Code Ann. Sec.  23-103-413; Cal. Civ. Sec.  
1057.6; Conn. Gen. Stat. Sec.  38A-423; DC Code Sec.  31-5031.12; 
Fla. Stat. Ann. Sec.  627.798; La. Rev. Stat. Ann. Sec.  22:531; Md. 
Code Ann., Ins. Sec.  22-102; Mo. Ann. Stat. Sec.  381.015; Mont. 
Code Ann. Sec.  33-25-216; Neb. Rev. Stat. Sec.  44-1992; Nev. Rev. 
Stat. Ann. Sec.  692A-210; N.M Admin. Code tit. 13, Sec.  13.14.7.8; 
N.Y. Real Property Law Journal, Winter 2009, Vol. 37, No. 1, at page 
42; Ohio Rev. Code Ann. Sec.  3953.30; 31 Pa. Code Sec.  126.1; R.I. 
Gen. Laws Ann. Sec.  27-2.6-12; S.C. Code Ann. Regs. 69-
18(2)(B)(1)(I); Tenn. Code Ann. Sec.  56-35-133; Tex. Ins. Code Ann. 
Sec. Sec.  2704.051 and 2704.052; Va. Code Ann. Sec.  38.2-4616; 
Wyo. Stat. Ann. Sec.  26-23-331.
---------------------------------------------------------------------------

Disclosing Title Insurance Policies Issued Simultaneously
    A number of commenters objected to proposed comment 37(g)(4)-2, 
which would have clarified that any title insurance policy disclosed on 
the Loan Estimate based on a simultaneous issuance calculation must be 
disclosed by adding the full owner's title insurance premium plus the 
simultaneous issuance premium for lender's title insurance coverage, 
and then deducting the amount of a full premium rate for lender's title 
insurance coverage that would be charged in a transaction when a 
consumer declines the purchase of an owner's title insurance policy. 
The commenters generally raised concerns that this manner of disclosing 
the title insurance premiums would produce consumer confusion, as the 
amounts disclosed on the Loan Estimate would not correlate to the title 
insurance rates quoted by title insurance agents in accordance with 
State law or the common practice in a particular geographic area. 
However, as discussed below, the manner in which the simultaneous 
issuance calculation is made in some States can result in confusion to 
the consumer. If the simultaneous issuance calculations are disclosed, 
the amount disclosed for a lender's title insurance policy would be 
negligible or zero. In an instance where the consumer declines an 
owner's title insurance policy, the lender's title insurance policy 
premium can increase substantially, resulting in a higher total amount 
of closing costs than can be anticipated by the consumer. Consumers may 
thus be led to believe that the incremental cost of the owner's title 
insurance is much higher than disclosed on the Loan Estimate.
    A national trade association commenter representing abstractors, 
title insurance agents, and title insurance underwriters stated that 
the proposed calculation methodology when a simultaneous issuance rate 
is utilized to calculate the owner's title insurance and lender's title 
insurance premiums would violate some State laws. Commenters 
recommended that title insurance policies should be disclosed on the 
Loan Estimate only in accordance with how they are to be quoted by 
title insurance agents pursuant to State law. A State trade association 
commenter stated that the amounts quoted should be in accordance with 
the purchase and sale agreement between the consumer and seller or 
common practice in a particular geographic area. A title insurance 
company commenter stated that there should be two Loan Estimate 
disclosures, one with the owner's title insurance policy and lender's 
title insurance policy simultaneous rates, and one with only the 
lender's title insurance policy rate.
    Commenters' concerns related to the calculation of the owner's 
title insurance and lender's title insurance premiums under the 
proposed rule generally were that the calculation would not accord with 
State law or custom, leading to confusion for consumers, settlement 
agents, internal auditors, and State auditors. State laws may prohibit 
a title agent from quoting the costs in a manner different than ones 
prescribed by State law. However, the manners prescribed by State law 
vary based on differing State regulatory models as well as differing 
pricing systems employed by title insurance underwriters, sometimes in 
the same State. These differences can prevent the disclosure of those 
prices in a manner that can be readily understood by consumers, 
especially when the consumer obtains more than one Loan Estimate from 
different creditors to shop for mortgage loans in States where the 
pricing systems differ between title insurance underwriters.
    The use of State law and custom introduces two issues. Ten States 
do not regulate, in any fashion, the rates charged for title insurance. 
A review of three title insurance underwriters \276\ in

[[Page 79964]]

these States indicates that there is no standard calculation method 
used, which also appears to be the case in approximately 14 States that 
regulate title insurance. In some States, each underwriter uses a 
different method to calculate the owner's title insurance and lender's 
title insurance premiums. Accordingly, there is no verifiable way to 
determine the cost of either the owner's title insurance or lender's 
title insurance in these jurisdictions other than from the information 
provided by the underwriters themselves. Second, approximately 26 
States, either by promulgated rates or by rates created and used by 
title underwriters, calculate the cost of lender's title insurance 
policy differently when a simultaneous owner's title insurance policy 
is issued.\277\ A standard rate applies to the lender's title insurance 
policy when purchased alone, but is only an additional flat cost when 
an owner's title insurance policy is issued simultaneously. When a 
consumer only obtains a lender's title insurance policy, there are 
changes to two separately disclosed title insurance premiums that are 
used to determine the amounts disclosed on the Loan Estimate. This 
results in a potential aggregate decrease in settlement costs when a 
consumer declines to purchase an owner's title insurance policy, but it 
may appear to a consumer as an increase in the cost a lender's title 
insurance policy.\278\
---------------------------------------------------------------------------

    \276\ The rates of three title insurance underwriters reviewed 
were from associated families of title insurance underwriters 
associated with Fidelity National Financial, First American Title 
Insurance Company, and Old Republic Title Insurance Company. These 
families of companies underwrote 73.73 percent of the total coverage 
amount of title insurance policies issued in the United States in 
2012. See American Land Title Association, 2012 Market Share Data, 
available at: http://www.alta.org/industry/12-04/2012_MarketShare_Family-CompanySummary.xls. The title insurance policy rates were 
found at http://www.oldrepublictitle.com/newnational/resources/locations.asp, http://tfc.firstam.com/Calculator, and http://ratecalculator.fnf.com/.
    \277\ The other manners in which title insurance rates are 
calculated include a proportional discount on both policy premiums, 
rates that do not include simultaneous issuance calculations, no 
additional premium for a lender's title insurance policy when an 
owner's title insurance policy is issued, and no additional premium 
for an owner's title insurance policy when a lender's title 
insurance policy is issued.
    \278\ While the aggregate amount paid for title insurance 
premiums would decrease when an owner's title policy is not 
purchased, the amount charged for the lender's title insurance can 
increase substantially from the amount disclosed when a simultaneous 
issuance rate is used. As an example, the lender's title insurance 
premium would increase by an amount between $15 and $1,455 in a 
transaction with a purchase price of $240,000 and with a purchase 
money loan of $211,000. These amounts assume that the title 
insurance policies obtained would be standard ALTA Loan and Owner 
policies without endorsements (or jurisdictional equivalents), 
excluding any applicable taxes and fees or other discounts. The 
amounts were determined by a review of publicly available title 
insurance rates from national title insurance underwriters, found at 
http://www.oldrepublictitle.com/newnational/resources/locations.asp, 
http://tfc.firstam.com/Calculator, and http://ratecalculator.fnf.com/.
---------------------------------------------------------------------------

    Title insurance is governed by the individual States, which can 
regulate the providers of insurance products. As noted above, there is 
a great range of State regulations and pricing models in relation to 
title insurance. However, this final rule mandates the disclosures made 
by creditors to consumers pursuant to TILA. Thus, the commenters' 
points related to State law prohibitions and regulation of insurance 
are inapposite in a situation where the party providing the Loan 
Estimate, the creditor, is not subject to the legal requirements of 
State insurance laws. See McCarran-Ferguson Act, 15 U.S.C. 1012(b). The 
Bureau believes that a standard method of disclosing lender's and 
owner's title insurance premium amounts on the Loan Estimate under 
Regulation Z that shows consumers the incremental cost of purchasing an 
owner's title insurance policy in addition to a lender's title 
insurance policy will aid consumer understanding of the transaction, 
which is one of the purposes of the integrated disclosures set for by 
the Dodd-Frank Act in TILA and RESPA. See Dodd-Frank Act sections 1098 
and 1100A.
    To address these issues, proposed Sec.  1026.37(g)(4) and its 
accompanying commentary would have required the calculation of owner's 
title insurance and lender's title insurance premiums to ensure that 
the lender's title insurance premium would not increase if the consumer 
declined an owner's title insurance premium. The calculation would have 
required that the lender's title insurance premium be disclosed at its 
full rate, and the owner's title insurance premium be disclosed as the 
difference between the owner's title insurance premium plus any 
additional flat simultaneous issuance rate, and the disclosed lender's 
title insurance premium.
    For approximately 25 States,\279\ this calculation methodology 
would result in disclosure of owner's title insurance and lender's 
title insurance premiums that would not be in accordance with the 
actual pricing; that is, the owner's title insurance and lender's title 
insurance premiums listed on the integrated disclosures always would be 
different than the actual rates charged. However, the calculation would 
result in providing every consumer in the United States with an 
accurate reflection of the incremental additional cost associated with 
obtaining an owner's title insurance policy at consummation. With this 
disclosure, consumers can determine if the additional cost for 
insurance to protect themselves from losses that result from a title 
defect and to provide a legal defense from challenges to their legal 
ownership of the property they are acquiring would be appropriate. 
There is no indication on the Loan Estimate that the owner's title 
insurance premium disclosed is an incremental cost to the consumer, and 
not the full rate. However, the creditor can communicate to those 
consumers who are confused that the total amount of the title insurance 
premiums shown on the Loan Estimate are the same as the total amount of 
the title insurance premiums calculated under State law or common 
practice that are disclosed or advertised by title underwriters and 
title agents.
---------------------------------------------------------------------------

    \279\ Maryland requires that title insurance agents provide a 
disclosure of the owner's title insurance premium and the lender's 
title insurance premium consistent with the manner that would have 
been mandated by proposed comment 37(g)(4)-2. See Md. Code Ann., 
Ins. Sec.  22-102.
---------------------------------------------------------------------------

    The Bureau finds that the clear disclosure of the required cost for 
the lender's title insurance alone, and the additional incremental cost 
to be paid by the consumer for the optional owner's title insurance 
premium outweighs the benefit of a technical disclosure of the owner's 
and lender's title insurance premiums; such a technical disclosure can 
result in confusion about what the consumer actually may pay if the 
consumer does not obtain an owner's title insurance policy, as well as 
removing any need to provide two Loan Estimates, as one commenter 
suggested. The Bureau intends to address issues surrounding title 
insurance, including the differing technical manners in which title 
insurance premiums are calculated, as part of updates to the special 
information booklet prescribed by RESPA that the Bureau intends to 
revise prior to the effective date of this final rule. See the section-
by-section analysis of Sec.  1026.19(g) for more information about the 
special information booklet. The Bureau also may provide additional 
guidance to consumers about the nature of title insurance, its 
potential benefits and costs, and the manner in which premiums are 
calculated in other ways as part of its ongoing efforts to empower 
consumers to make financial choices that are in their best short- and 
long-term interests.
    Other commenters stated that other types of owner's title insurance 
policies, which have rates different from those of the basic owner's 
title policy premium, should be permitted to be listed on the Loan 
Estimate. The commenters stated that some real estate sales contracts 
will designate that the consumer or seller will obtain an ``enhanced'' 
owner's title insurance policy. The Bureau believes that more 
flexibility to address the variation of residential real estate 
contracts is appropriate and is revising comment 37(g)(4)-1 to address 
this possibility.

[[Page 79965]]

Final Rule
    Accordingly, the Bureau is adopting Sec.  1026.37(g)(4) and its 
comments 37(g)(4)-2, -3, and -4 as proposed. Comment 37(g)(4)-1 is 
being modified to permit the disclosure of an ``enhanced'' owner's 
title insurance policy premium when the creditor knows that an 
``enhanced'' owner's title insurance policy is required by the real 
estate sales contract. The Bureau is adopting the requirements in Sec.  
1026.37(g)(4) pursuant to its authority under TILA section 105(a) and 
RESPA section 19(a) because disclosure of payments that consumers are 
likely to pay in a mortgage transaction will educate consumers about 
costs they must be prepared to pay at closing, thereby promoting the 
informed use of credit and more effective advance disclosure of 
settlement costs, which are purposes of TILA and RESPA, respectively. 
Dodd-Frank Act sections 1032(a) and 1405(b) are also sources of 
authority for this requirement. This information ensures that the 
features of the mortgage transactions are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
transaction in light of the facts and circumstances, consistent with 
Dodd-Frank Act section 1032(a). Furthermore, for the reasons stated 
above in relation to residential mortgage loans, the disclosure is in 
the interest of consumers and in the public interest, consistent with 
Dodd-Frank Act section 1405(b).
37(g)(5) Total Other Costs
    The Bureau's proposed Sec.  1026.37(g)(5) would have required 
disclosure under the subheading ``Total Other Costs'' of the sum of the 
subtotals disclosed pursuant to Sec.  1026.37(g)(1) through (g)(4). The 
Bureau did not receive comments related to proposed Sec.  
1026.37(g)(5). Accordingly, the Bureau is adopting Sec.  1026.37(g)(5) 
as proposed. The Bureau is adopting the requirements in Sec.  
1026.37(g)(5) pursuant to its authority under TILA section 105(a) and 
RESPA section 19(a) because disclosure of the total of the charges 
consumers must pay, in addition to charges for consummating the loan, 
will promote the informed use of credit and more effective advance 
disclosure of settlement costs, which are purposes of TILA and RESPA, 
respectively. Dodd-Frank Act sections 1032(a) and 1405(b) are also 
sources of authority for this requirement. This information ensures 
that the features of the mortgage transaction are fully, accurately, 
and effectively disclosed to consumers in a manner that permits 
consumers to understand the costs, benefits, and risks associated with 
the mortgage transaction in light of the facts and circumstances, 
consistent with Dodd-Frank Act section 1032(a). Furthermore, for the 
reasons stated above in relation to residential mortgage loans, the 
disclosure is in the interest of consumers and in the public interest, 
consistent with Dodd-Frank Act section 1405(b).
37(g)(6) Total Closing Costs
    The Bureau's proposed Sec.  1026.37(g)(6) would have required the 
disclosure under the subheading ``Total Closing Costs'' of a subtotal 
of the items disclosed as ``Total Loan Costs'' and ``Total Other 
Costs'' pursuant to Sec.  1026.37(f)(4) and (g)(5); the amount of any 
generalized lender credits to be provided at consummation, stated as a 
negative number; and the sum of the subtotal of loan and other costs 
and the negative amount of lender credits. Proposed comment 
37(g)(6)(ii)-1 would have clarified that generalized lender credits not 
associated with a particular service are disclosed under Sec.  
1026.37(g)(6)(ii), but lender credits for specific items disclosed on 
the Loan Estimate are disclosed as paid by others on the Closing 
Disclosure under Sec.  1026.38(f) and (g), as applicable.
    Commenters had varying suggestions related to how to show lender 
credits on the Loan Estimate. One large bank commenter, along with 
other commenters, stated that these lender credits should be able to be 
itemized on the Loan Estimate, to indicate which charge under Sec.  
1026.37(f) and (g) would be offset by the lender credit. Other 
commenters suggested that the lender credits should offset the total of 
the loan costs disclosed under Sec.  1026.37(f). A regional trade 
association commenter stated that there is no value in disclosing a 
cost and then providing an offsetting credit for the same amount if the 
creditor intends to cover the entire cost of the service. Rather, the 
regional trade association commenter stated it would be better if the 
charge for that service was omitted from the items disclosed under 
Sec.  1026.37(f) or (g). A different State trade association stated 
that the disclosure of lender credits is much improved under Sec.  
1026.37. Some commenters questioned how what they described as ``no-
cost'' loans, referring to loans for which the creditor provides a 
general credit to offset closing costs (which is typically recouped by 
the creditor with a higher interest rate), should be disclosed.
    The disclosure of lender credits on the Loan Estimate points to a 
tension between having an accurate and comprehensive disclosure of the 
costs associated with the extension of credit and the fact that the 
Loan Estimate is disclosed early enough in the real estate settlement 
process that the exact extent of the services required, and services 
that may not be required, is not completely known by the creditor at 
the time the Loan Estimate is issued. To merely ignore services that 
are most likely going to be obtained if a creditor intends to pay for 
the service would be an unreliable standard for a consumer. Information 
regarding the services for which the consumer will be likely to pay, 
either directly or through a higher interest rate, may be useful to 
consumers when comparison shopping or understanding the nature of the 
mortgage loan transaction. The lack of specific credits on the Loan 
Estimate also facilitates comparison shopping, since a consumer would 
have to analyze the extent that specific credits are being utilized by 
the creditor to offset charges in the aggregate. Allowing specific 
credits on the Loan Estimate also could lead creditors to include 
charges with an offsetting credit even when the creditor does not 
require a specific service, increasing information overload and 
reducing the ability of consumers to identify loans with terms that are 
better for their particular situation. Ignoring specific credits for 
services the creditor intends to pay also can reduce the accuracy of 
the cash to close amount disclosed under Sec.  1026.37(h).
    Accordingly, the Bureau is adopting Sec.  1026.37(g)(6) and its 
accompanying commentary substantially as proposed, except with minor 
modifications to provide clarity and to indicate that if there is no 
amount for lender credits disclosed under Sec.  1026.37(g)(6), the 
disclosure should be left blank, to reduce the amount of numbers on one 
page and the potential for information overload. In addition, the 
Bureau is adopting additional comment 37(g)(6)(ii)-2 to clarify that 
any credit disclosed pursuant to Sec.  1026.37(g)(6)(ii) should be 
sufficient to cover the total amount of closing costs disclosed under 
Sec.  1026.37(f) and (g) that the creditor has represented to the 
consumer are covered by the credit under the terms of the loan.
    The Bureau is adopting the requirements in Sec.  1026.37(g)(6) 
pursuant to its authority under TILA section 105(a) and RESPA section 
19(a) because disclosure of the total amounts consumers must pay to 
consummate the loan and close the property transaction will promote the 
informed use of credit and more effective advance disclosure of 
settlement costs, which are purposes

[[Page 79966]]

of TILA and RESPA respectively. Dodd-Frank Act sections 1032(a) and 
1405(b) are also sources of authority for this requirement. This 
information ensures that the features of mortgage transactions are 
fully, accurately, and effectively disclosed to consumers in a manner 
that permits consumers to understand the costs, benefits, and risks 
associated with the mortgage transaction in light of the facts and 
circumstances, consistent with Dodd-Frank Act section 1032(a). 
Furthermore, for the reasons stated above in relation to residential 
mortgage loans, the disclosure is in the interest of consumers and in 
the public interest, consistent with Dodd-Frank Act section 1405(b).
37(g)(7) Item Descriptions and Ordering
    The Bureau's proposed Sec.  1026.37(g)(7) would have required the 
creditor, in identifying the items listed as Other Costs, to use 
terminology that briefly and clearly describes the item. All items 
would have been required to be listed in alphabetical order following 
the items prescribed to be included under the subheading.
    As with proposed Sec.  1026.37(f)(6), commenters generally objected 
to the requirement to list the items in alphabetical order under the 
applicable subheading, but did not propose an alternative method of 
ordering the items. Since the descriptions can vary from jurisdiction 
to jurisdiction and creditor to creditor, while still meeting the 
requirement that each item be described, there does not appear to be 
any method to order the items without defining the services provided in 
residential real estate transactions. Some commenters stated that the 
Bureau should define these services. However, the Bureau did not 
propose any such definitions or standardized descriptions. Accordingly, 
as discussed above in the section-by-section analysis of Sec.  
1026.37(f)(6), the Bureau believes it would not be appropriate to 
finalize any such definition or standard descriptions in this final 
rule. The Bureau believes that the requirement as proposed will enable 
consumers to understand the charges, and locate charges more easily. At 
the Bureau's consumer testing, consumers were able to use the 
descriptions and order of the charges to identify and compare charges 
between Loan Estimates. See Kleimann Testing Report at 280-83.
    Accordingly, the Bureau is adopting Sec.  1026.37(g)(7) 
substantially as proposed, but as with Sec.  1026.37(f)(5), is not 
adopting the requirement to briefly and clearly describe the disclosed 
items, because the Bureau believes that the clear and conspicuous 
standard in Sec.  1026.17(a)(1) is sufficient to provide clarity 
concerning how to describe the items on the Loan Estimate. The Bureau 
is adopting the requirements in Sec.  1026.37(g)(7) pursuant to its 
authority under TILA section 105(a) and RESPA section 19(a) because a 
consistent listing of the costs that appear on the Loan Estimate and 
the Closing Disclosure will facilitate the consumer's comparison of the 
two disclosure documents and understanding of the transaction as a 
whole, thereby promoting the informed use of credit and more effective 
advance disclosure of settlement costs, which are purposes of TILA and 
RESPA, respectively. This requirement also will ensure that the 
features of mortgage transactions are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
mortgage transaction in light of the facts and circumstances, 
consistent with Dodd-Frank Act section 1032(a). The Bureau is also 
adopting new comment 37(g)(7)-1 to refer to comment 37(f)(5)-1 for 
guidance.
37(g)(8) Use of Addenda
    The Bureau's proposed Sec.  1026.37(g)(8) would have provided that 
addenda may not be used to itemize disclosures required by Sec.  
1026.37(g). If the creditor is not able to itemize all of the charges 
required to be disclosed in the number of lines provided under a 
subheading, the remaining charges would have been required to be 
disclosed as an aggregate amount in the last line permitted using the 
label ``Additional Charges'' under the applicable subheading. Proposed 
comment 37(g)(8)-1 would have clarified that a creditor is permitted to 
provide additional disclosures that are required by State law, as long 
as those disclosures are provided on a separate document whose pages 
are physically separate from, and are not presented as part of, the 
disclosures provided in accordance with Sec.  1026.37.
    The Bureau did not receive comments related to proposed Sec.  
1026.37(g)(8). Accordingly the Bureau is adopting Sec.  1026.37(g)(8) 
and its accompanying commentary as proposed. The Bureau is adopting the 
requirements in Sec.  1026.37(g)(8) pursuant to its authority under 
TILA section 105(a) and RESPA section 19(a) because standardization of 
the information provided on the disclosures required under Sec.  
1026.19(e) will provide consistent information that consumers will be 
able to use to better understand the mortgage transaction, shop for 
loans, and compare the Loan Estimate with any revised Loan Estimate and 
the Closing Disclosure, thereby promoting the informed use of credit 
and more effective advance disclosure of settlement costs, which are 
purposes of TILA and RESPA, respectively. This standardization will 
also ensure that the features of the mortgage transaction are fully, 
accurately, and effectively disclosed to consumers in a manner that 
permit consumers to more readily understand the costs, benefits, and 
risks associated with the mortgage transaction in light of the facts 
and circumstances, consistent with Dodd-Frank Act section 1032(a), 
which is also a source of authority for the proposed requirements.
37(h) Calculating Cash To Close
    The Bureau's proposed Sec.  1026.37(h) would have required the 
disclosure of the calculation of an estimate of the cash needed from 
the consumer at consummation of the transaction using the heading 
``Calculating Cash To Close.'' Proposed comment 37(h)-1 would have 
clarified that the labels to be used on the Loan Estimate for each 
amount must match its description in proposed Sec.  1026.37(h)(1) to 
(7) and would have referred to form H-24(A) of appendix H for 
illustrations.
    Several commenters generally said that the Calculating Cash To 
Close table disclosed under Sec.  1026.37(h) was difficult to apply in 
a transaction that did not include a seller and provided several 
suggested alternatives to address the differing nature of these types 
of transactions. Several commenters also stated that the estimated cash 
to close would appear as a negative number for transactions where a 
consumer was receiving cash at consummation and stated that consumers 
generally have difficulty in understanding negative numbers. Two 
national industry trade association commenters provided examples of 
suggested replacement tables for transactions without a seller, both of 
which started with the loan amount and then deducted payoffs and 
closing costs from the loan amount.
    Based on these comments and a review of the differing nature of 
transactions that do not include a seller, the Bureau developed an 
alternative table for these types of transactions that starts with the 
loan amount and then deducts closing costs and payoffs from the loan 
amount to determine the amount of cash to or from the consumer. The 
alternative Calculating Cash To Close table reduced the number of 
variables to only three in the calculation of the estimated cash to or 
from the consumer at consummation and used check boxes to indicate 
whether the amount would be paid to or from the consumer at 
consummation. The Bureau tested this alternative Calculating Cash To 
Close table in three rounds of

[[Page 79967]]

qualitative testing using a refinance transaction in which the consumer 
was receiving cash from the transaction, as well as a refinance 
transaction in which the consumer had to pay cash at consummation, to 
examine whether the shorter table was clearer to consumers. The testing 
compared the proposed table with the alternative table in such 
transactions. The testing established that consumers did understand the 
alternative table more readily in refinance transactions. While some 
consumers did realize that a negative number indicated the amount of 
cash that a consumer would receive at consummation in the proposed 
table, the alternative table provided the same information in a format 
that consumers more readily understood. See Kleimann Post-Proposal 
Testing Report at 54-55. The Bureau recognizes that either Calculating 
Cash To Close table can accurately disclose the amount of cash due to 
or from the consumer at consummation, and as such, is finalizing the 
alternative table as an option that a creditor can choose to provide, 
so long as it also provides the optional alternative disclosure under 
Sec.  1026.37(d)(2), as well. In order to provide the optional 
disclosure, the Bureau is modifying the numbering of the provisions of 
proposed Sec.  1026.37(h) to add for this optional alternative 
Calculating Cash To Close table under Sec.  1026.37(h)(2).
    One large bank commenter stated that it was unreasonable to require 
the creditor to know the amount of the deposit, payments to others, and 
funds that the consumer will have to pay at consummation. However, 
these amounts only have to be disclosed to the extent that the creditor 
knows the information at the time the Loan Estimate is delivered 
provided the creditor complies with the good faith requirement under 
Sec.  1026.19(e)(1)(i). In addition, as discussed in the section-by-
section analysis of Sec.  1026.19(f), the cash to close can change 
before consummation.
    The Bureau is adopting Sec.  1026.37(h) as modified to add an 
optional calculation of cash to close for transactions that do not have 
a seller, as noted above, and described in further detail below. The 
Bureau is adopting the requirements in Sec.  1026.37(h) pursuant to its 
authority under TILA section 105(a) and Dodd-Frank Act section 1032(a) 
because this disclosure will ensure that the features of the 
transaction are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to understand the costs, 
benefits, and risks associated with the product, in light of the facts 
and circumstances.
37(h)(1) For All Transactions
37(h)(1)(i) Total Closing Costs
    The Bureau's proposed Sec.  1026.37(h)(1) would have required that 
the total closing costs be disclosed as calculated under Sec.  
1026.37(g)(6) as a positive number. Commenters did not provide any 
specific response to the inclusion of the total closing costs in the 
cash to close table. Accordingly, the Bureau is adopting proposed Sec.  
1026.37(h)(1) as Sec.  1026.37(h)(1)(i).
37(h)(1)(ii) Closing Costs To Be Financed
    The Bureau's proposed Sec.  1026.37(h)(2) would have required that 
the amount of the closing costs to be paid from mortgage loan proceeds 
would be disclosed as a negative number. Commenters stated that 
proposed Sec.  1026.37(h)(2) did not specify a method to calculate the 
amount of closing costs to be paid from mortgage loan proceeds. 
Accordingly, the Bureau is adopting proposed Sec.  1026.37(h)(2) as 
Sec.  1026.37(h)(1)(ii) and adopting comment 37(h)(1)(ii)-1 to clarify 
that the amount of closing costs financed is determined by subtracting 
the estimated total amount of payments to third parties not otherwise 
disclosed pursuant to Sec.  1026.37(f) and Sec.  1026.37(g) from the 
total loan amount. If the result of the calculation is positive, that 
amount is disclosed under Sec.  1026.37(h)(1)(ii), but only to the 
extent that it does not exceed the total amount of closing costs 
disclosed under Sec.  1026.37(g)(6). For example, assume that a 
mortgage loan amount is $250,000, the estimated amount of all 
outstanding mortgage loans secured by the real property total $200,000, 
and the total estimated closing costs disclosed under Sec.  
1026.37(g)(6) are $10,000; the amount disclosed under Sec.  
1026.37(h)(1)(ii) is -$10,000, since the result of the difference 
between the mortgage loan amount and the estimated amount of all 
outstanding mortgage loans secured by the real property is positive 
$50,000, but since there are only $10,000 in closing costs, the amount 
disclosed is limited to -$10,000.
37(h)(1)(iii) Downpayment and Other Funds From Borrower
    The Bureau's proposed Sec.  1026.37(h)(3) would have required 
disclosure of the amount of the downpayment and other funds from the 
consumer at consummation to be disclosed as a positive number. In a 
purchase transaction the downpayment would have been calculated as the 
difference between the purchase price of the property and the principal 
amount of the credit. In all other transactions, the funds from the 
consumer would have been calculated pursuant to proposed Sec.  
1026.37(h)(5).
    One non-depository lender commenter supported the inclusion of the 
downpayment in the table. Other commenters did not comment on proposed 
Sec.  1026.37(h)(3), except to the extent that any amount disclosed 
under proposed Sec.  1026.37(h)(3) is based on the calculation provided 
under 1026.37(h)(5), as discussed below. Accordingly, the Bureau is 
adopting proposed Sec.  1026.37(h)(3) as Sec.  1026.37(h)(1)(iii) and 
also comment 37(h)(1)(iii)-1 to clarify that in the case of a 
transaction where the loan amount exceeds the purchase price of the 
property (other than a construction loan), the amount of the 
downpayment disclosed must be $0.
37(h)(1)(iv) Deposit
    The Bureau's proposed Sec.  1026.37(h)(4) would have required that 
the amount that is paid to the seller or held in trust or escrow by a 
third party pursuant to the terms of a contract for sale of real estate 
be disclosed as a negative number. Proposed comment 37(h)(4)-1 would 
have clarified that in any transaction other than a purchase 
transaction, the amount disclosed under proposed Sec.  1026.37(h)(4) 
must be $0.
    Two GSE commenters stated that the deposit disclosed under proposed 
Sec.  1026.37(h)(4) should provide additional information concerning 
the source of funds that the consumer utilized to pay the seller or 
place in trust or escrow by a third party pursuant to the terms of a 
contract for sale of real estate. However, the source of funds is not a 
required disclosure under TILA or RESPA. It appears that the commenters 
proposed additional disclosures to establish a certification of the 
source of funds for the purpose of establishing compliance with their 
own requirements or enabling identification of fraudulent transactions 
more easily. The Bureau believes that the primary interest in a 
disclosure to a consumer is to disclose the transaction to the consumer 
and not to be a document to assist with the procedures of market 
participants. If the interests align or a modification can be made to 
align the interests without confusing consumers or making the 
disclosures more difficult to understand, the Bureau will consider such 
a modification. However, the Bureau believes any modification of this 
line of the Calculating Cash to Close table to indicate the source of 
funds likely would result in the need for

[[Page 79968]]

additional pages and information overload for consumers. Alternative 
information can be provided by the consumer in the course of the 
underwriting of the transaction to demonstrate compliance with 
secondary market requirements. Accordingly, the Bureau is adopting 
Sec.  1026.37(h)(1)(iv) and comment 37(h)(4)-1 as proposed, but 
redesignating them Sec.  1026.37(h)(1)(iv) and comment 37(h)(1)(iv)-1, 
respectively.
37(h)(1)(v) Funds for Borrower
    The Bureau's proposed Sec.  1026.37(h)(5) would have required that 
the amounts to be disclosed under both proposed Sec.  1026.37(h)(3) and 
proposed Sec.  1026.37(h)(5) are calculated by subtracting the amount 
of debt being satisfied by the real estate transaction from the amount 
of the credit extended by the new loan, excluding any amount under 
proposed Sec.  1026.37(h)(2) because that amount of the credit extended 
already has been accounted for in the cash to close calculation by 
inclusion in proposed Sec.  1026.37(h)(2). ``Funds for Borrower'' was 
intended to represent generally the amount anticipated to be disbursed 
to the consumer or used at the consumer's discretion at consummation of 
the transaction, such as in cash-out refinance transactions. The 
determination of whether the transaction will result in ``Funds for 
Borrower'' would have been made under proposed Sec.  1026.37(h)(5). 
When the result of the calculation would have been positive, that 
amount would have been disclosed under proposed Sec.  1026.37(h)(3), 
and $0 would have been disclosed under proposed Sec.  1026.37(h)(5). 
When the result of the calculation would have been negative, that 
amount would have been disclosed under proposed Sec.  1026.37(h)(5), 
and $0 would have been disclosed under proposed Sec.  1026.37(h)(3). 
When the result would have been $0, $0 would have been disclosed in 
both proposed Sec.  1026.37(h)(3) and proposed Sec.  1026.37(h)(5).
    Two national industry trade association commenters stated that they 
were confused concerning proposed Sec.  1026.37(h)(5) when comparing 
the requirements to the examples provided in the forms and comments in 
appendix H to Regulation Z of the proposed rule. These commenters 
appear to have misunderstood that the calculation under proposed Sec.  
1026.37(h)(5) would apply only to the amounts disclosed under proposed 
Sec.  1026.37(h)(3) in a transaction that is not disclosed as a 
``purchase'' transaction under proposed Sec.  1026.37(a)(9)(i). The 
confusion arose when the commenters applied the calculation under 
proposed Sec.  1026.37(h)(5) to determine the amount disclosed under 
proposed Sec.  1026.37(h)(3) in a sample purchase transaction, which 
would have been inconsistent with proposed Sec.  1026.37(h)(3)(i). 
Other than these comments, commenters did not address the calculation 
method discussed in proposed Sec.  1026.37(h)(5). Accordingly, the 
Bureau is adopting proposed Sec.  1026.37(h)(5) as Sec.  
1026.37(h)(1)(v), and adopting comment 37(h)(1)(v)-1 to clarify that 
the calculation under Sec.  1026.37(h)(1)(v) is used in a non-purchase 
transaction to determine the amount disclosed under Sec.  
1026.37(h)(1)(iii), and that, in a purchase transaction, other than a 
construction loan transaction, the result of the calculation under 
Sec.  1026.37(h)(1)(v) will result in the amount of $0 being disclosed 
under Sec.  1026.37(h)(1)(v).
37(h)(1)(vi) Seller Credits
    The Bureau's proposed Sec.  1026.37(h)(6) would have required that 
the amount of any seller credit, to the extent known by the creditor, 
is disclosed as a negative number. Proposed comment 37(h)(6)-1 would 
have clarified that seller credits known by the creditor at the time of 
application are disclosed under proposed Sec.  1026.37(h)(6), and that 
seller credits that are not known by the creditor at that time are not 
disclosed under proposed Sec.  1026.37(h)(6).
    Three national industry trade association commenters questioned how 
to disclose seller credits for specific charges, to the extent they are 
known by the creditor at the time the Loan Estimate is provided. The 
Bureau believes that additional clarification should be provided, and 
is modifying proposed comment 37(h)(6)-1 and adding comment 37(h)(6)-2 
to address this comment. One national industry trade association 
commenter stated, as an alternative suggestion, that any specific 
charges that are encompassed by a seller credit should mean that the 
item so covered should be omitted from disclosure on the Loan Estimate 
entirely. This, however, would work against the provision of early, 
accurate information to the consumer of the costs associated with the 
extension of credit. The amount and size of any and all credits, 
including credits from the seller and the creditor, can be and often 
are the subject of negotiation during the real estate settlement 
process. A consumer that does not have the basic knowledge of the cost 
of a particular service does not have the information needed to 
determine the value of an offered concession. In addition, section 1419 
of the Dodd-Frank Act amended TILA to require that the creditor 
disclose ``the aggregate amount of settlement charges for all 
settlement services provided in connection with the loan . . .'' 15 
U.S.C. 1638(a)(17). This requirement is not limited to those charges 
paid by the consumer, which are subject to separate disclosure pursuant 
to another clause of that section. In addition, the consumer ultimately 
would be liable to pay for many of the services if the seller did not 
provide the credit at closing for some reason, and thus, the Bureau 
believes the consumer should be provided the information about the 
required and likely costs of the transaction.
    Accordingly, the Bureau is adopting proposed Sec.  1026.37(h)(6) 
and proposed comment 37(h)(6)-1 as Sec.  1026.37(h)(1)(vi) and comment 
37(h)(1)(vi)-1, respectively, and also is adopting comment 
37(h)(1)(vi)-2, which clarifies that seller credits for specific 
charges disclosed under Sec.  1026.37(f) or Sec.  1026.37(g) can be 
disclosed as the total of the estimated charge for those specific items 
that the seller has agreed to pay, to the extent known by the creditor.
37(h)(1)(vii) Adjustments and Other Credits
    The Bureau's proposed Sec.  1026.37(h)(7) would have required that 
the amount of other credits for all loan costs and other costs, to the 
extent known, that are to be paid by persons other than the loan 
originator, creditor, consumer, or seller be disclosed as a negative 
number. Proposed comment 37(h)(7)-1 would have clarified that amounts 
expected to be paid by third parties not involved in the transaction, 
such as gifts from family members and not otherwise identified under 
proposed Sec.  1026.37(h), would be included in this amount to the 
extent known by the creditor. Proposed comment 37(h)(7)-2 would have 
clarified that the term ``persons'' as used in proposed Sec.  
1026.37(h)(7) includes all individuals and any entity, regardless of 
the legal structure of such entity. Proposed comment 37(h)(7)-3 would 
have clarified that only credits from parties other than the creditor 
or seller can be disclosed pursuant to proposed Sec.  1026.37(h)(7). 
Seller credits and credits from the creditor would have been disclosed 
pursuant to proposed Sec.  1026.37(h)(6) and Sec.  1026.37(g)(6)(ii), 
respectively. Proposed comment 37(h)(7)-4 would have clarified that 
other credits known by the creditor at the time of application are 
disclosed under proposed Sec.  1026.37(h)(7) and that other credits 
that are not known by the

[[Page 79969]]

creditor are not disclosed under proposed Sec.  1026.37(h)(6).
    A national industry trade association commenter requested further 
clarification as to the identity of any adjustments that would be 
included under proposed Sec.  1026.37(h)(7). Another national industry 
trade association commenter stated that the proceeds from a 
subordinate-lien loan should be applied to the Calculating Cash to 
Close table, but did not specify the appropriate place for inclusion in 
the table. In some cases, subordinate financing may not be known or set 
at the time the Loan Estimate will be provided. Consumers also can use 
disclosures related to the amounts of the subordinate financing, 
whether through the use of integrated disclosures or other information 
provided from the source of the alternative financing if the 
subordinate financing is not subject to the integrated disclosures, in 
order to determine if the consumer can provide sufficient funds to 
complete the transaction.
    Accordingly, the Bureau is adopting proposed Sec.  1026.37(h)(7) 
and proposed comments 37(h)(7)-1, -2, and -3 as Sec.  
1026.37(h)(1)(vii) and comments 37(h)(1)(vii)-1, -2 and-3, 
respectively. The Bureau also is adopting proposed comment 
37(h)(1)(vii)-4 with modification, and adopting new comments 
37(h)(1)(vii)-5 and -6 to provide greater clarity regarding the items 
to be disclosed, and to clarify how to include proceeds from 
subordinate financing and adjustments to the amount disclosed under 
Sec.  1026.37(h)(1)(vii).
37(h)(1)(viii) Estimated Cash To Close
    The Bureau's proposed Sec.  1026.37(h)(8) would have required that 
the total of the amounts disclosed under proposed Sec.  1026.37(h)(1) 
to (7) be disclosed. Proposed comment 37(h)(8)-1 would have clarified 
that the sum total of proposed Sec.  1026.37(h)(1) through (7) must be 
disclosed pursuant to proposed Sec.  1026.37(h)(8) as either a positive 
number, a negative number, or zero. The comment would have further 
clarified that a positive number would have indicated the estimated 
amount that the consumer can be expected to pay at consummation to 
complete the transaction. A negative number would have indicated the 
estimated amount that the consumer can receive from the transaction at 
consummation. A result of zero would have indicated that the consumer 
is anticipated neither to pay any amount nor receive any amount from 
the transaction at consummation. Commenters did not address directly 
the disclosure of the total of the amounts disclosed under proposed 
Sec.  1026.37(h)(1) to (7) or under proposed Sec.  1026.37(h)(8), 
except to the extent that they stated that the disclosure of a negative 
number may be confusing to consumers, as discussed above. Accordingly, 
the Bureau is adopting proposed Sec.  1026.37(h)(8) and comment 
37(h)(8)-1 as Sec.  1026.37(h)(1)(viii) and comment 37(h)(1)(viii)-1, 
respectively.
37(h)(2) Optional Alternative Calculating Cash To Close Table for 
Transactions Without a Seller
    The Bureau, as discussed above, recognizes that in many 
transactions without a seller the level of detail of the Calculating 
Cash To Close table may not be necessary for such transactions because 
of the different nature of the transaction. For example, prorations of 
real property taxes between the consumer and seller, which would be 
disclosed to the extent known by the creditor under Sec.  
1026.37(h)(1)(vii) would not need to be disclosed in a transaction 
without a seller. In addition, there would not be a deposit under a 
purchase and sale contract for the real estate to be disclosed under 
Sec.  1026.37(h)(1)(iv). Therefore, such items do not need to be 
reflected in the Calculating Cash To Close table in those types of 
transactions. As discussed in the section-by-section analysis of Sec.  
1026.37(d) above, the Bureau is responding to comments and the results 
of consumer testing the Bureau conducted after issuance of the proposal 
that indicate that negative numbers are confusing for consumers. In 
addition, the Bureau is responding to comments that stated that the 
loan amount would be an appropriate start for any disclosure of cash to 
close. The determination of cash to close in these transactions can be 
simplified to three elements in a straightforward calculation 
methodology to determine either the amount of cash the consumer needs 
to provide at consummation to complete the transaction or the amount of 
cash the consumer will receive at consummation. The loan amount less 
the sum total of closing costs and other payments from loan proceeds at 
consummation will provide the total amount of cash needed from the 
consumer or that is due to the consumer at consummation. Any 
determination of the amount of closing costs that are being financed is 
the result of a calculation, not a variable in the calculation. Closing 
costs are financed to the extent that the total amount of other 
payments made from loan proceeds are less than the loan amount. Any 
such amounts left over are utilized by the consumer to pay for closing 
costs, up to the full amount of closing costs.
    Accordingly, the Bureau is adopting this optional alternative 
calculation methodology for the Calculating Cash To Close table as 
Sec.  1026.37(h)(2), as further described below. The Bureau also is 
adopting comment 37(h)(2)-1, which clarifies that the optional cash to 
close table under Sec.  1026.37(h)(2) can only be used in a transaction 
without a seller and is completely optional but must be used in 
conjunction with the alternative optional costs at closing table 
disclosure under Sec.  1026.37(d)(2).
    Pursuant to its authority under TILA section 105(a), RESPA section 
19(a), and Dodd-Frank section 1032(a), the Bureau is requiring 
creditors to provide an estimated table in order to disclose to the 
consumer how the estimated amount of cash needed at consummation to or 
from the consumer is calculated. This disclosure will effectuate the 
purposes of TILA by promoting the informed use of credit and will 
ensure the features of the mortgage transaction are fully, accurately, 
and effectively disclosed to consumers in a manner that permits 
consumers to understand the costs, benefits, and risks associated with 
the mortgage transaction, in light of the facts and circumstances, 
because it will indicate to the consumer the amount the consumer will 
have to pay at consummation of the credit transaction and closing of 
the real estate transaction.
37(h)(2)(i) Loan Amount
    The Bureau is adopting Sec.  1026.37(h)(2)(i), which requires the 
disclosure of the loan amount as disclosed under Sec.  1026.37(b)(1) on 
the first line of the optional table with the label ``Loan Amount.''
37(h)(2)(ii) Total Closing Costs
    The Bureau is adopting Sec.  1026.37(h)(2)(ii), which requires the 
disclosure of the total closing costs as disclosed under Sec.  
1026.37(g)(6) as a negative number on the second line of the optional 
table with the label ``Total Closing Costs.''
37(h)(2)(iii) Payoffs and Payments
    The Bureau is adopting Sec.  1026.37(h)(2)(iii), which requires the 
disclosure of the total of all payments to third parties as part of the 
transaction not otherwise disclosed pursuant to Sec.  1026.37(f) and 
(g) as a negative number, to the extent known to the creditor at the 
time the Loan Estimate is being issued, on the third line of the 
optional table with the label ``Total Payoffs and Payments.'' The 
Bureau also

[[Page 79970]]

is adopting comment 37(h)(2)(iii)-1 to clarify the types of payoffs and 
payments disclosed by providing examples of such payoffs and payments.
37(h)(2)(iv) Cash To or From Consumer
    The Bureau is adopting Sec.  1026.37(h)(2)(iv), which requires that 
the absolute value of the sum of Sec.  1026.37(h)(2)(i), (ii), and 
(iii) be disclosed with a statement of the estimated amount due to or 
from the consumer on the fourth line of the optional table with the 
label ``Cash to Close.'' The Bureau is also adopting comment 
37(h)(2)(iv)-1 to clarify the method by which a creditor indicates the 
estimated amount of cash due to or from the consumer by the use of 
check boxes as illustrated by form H-24(D) in appendix H to Regulation 
Z.
37(h)(2)(v) Closing Costs Financed
    The Bureau is adopting Sec.  1026.37(h)(2)(v), which requires that 
the sum of the amounts disclosed under Sec.  1026.37(h)(2)(i) and (iii) 
be disclosed, but only to the extent that the calculation results in a 
positive amount no greater, and only up to the total amount of closing 
costs disclosed under Sec.  1026.37(g)(6), labeled as ``Closing Costs 
Financed (Paid from your Loan Amount).'' The Bureau is also adopting 
comment 37(h)(2)(v)-1 to clarify that the amount disclosed under Sec.  
1026.37(h)(2)(v) cannot exceed the total amount of closing costs 
disclosed under Sec.  1026.37(g)(6), even if the calculation results in 
an amount in excess of the sum disclosed under Sec.  1026.37(g)(6). 
This calculation subtracts the total payoffs and payments from the loan 
amount and attributes the loan funds remaining to the financing of 
closing costs, and accordingly, the disclosed amount cannot exceed the 
total amount of closing costs. Although not part of the optional 
alternative table, the disclosure of the estimated closing costs 
financed is required pursuant to Dodd-Frank Act section 1419, which 
modified TILA section 128(a)(17). Accordingly, the Bureau is requiring 
the disclosure of this amount under Sec.  1026.37(h)(2)(v) in 
conjunction with the optional alternative Calculating Cash to Close 
table.
37(i) Adjustable Payment Table
    For certain credit transactions secured by a dwelling, TILA section 
128(b)(2)(C)(ii) requires the disclosure of examples of adjustments to 
the regular required payment on the extension of credit based on the 
change in the interest rates specified by the contract. Among the 
examples must be the maximum regular required payment based on the 
maximum interest rate allowed under the contract. While this section 
requires examples based on changes to the interest rates, the 
requirement is triggered if either the interest rate may change or the 
``regular payments may otherwise be variable.'' 15 U.S.C. 
1638(b)(2)(C)(ii). TILA section 128(b)(2)(C)(ii) does not, however, 
require the disclosure of the existence of loan terms that may cause 
the periodic payment to adjust without a change to the interest rate.
    Proposed Sec.  1026.37(i) would have required an Adjustable Payment 
(AP) table to disclose examples of the required periodic principal and 
interest payment, including the maximum possible required principal and 
interest payment, for loans with terms that allow the principal and 
interest payment to adjust not based on adjustments to the interest 
rate. In contrast, proposed Sec.  1026.37(j) would have required 
provision of an Adjustable Interest Rate (AIR) table for credit 
transactions with terms that permit the interest rate to adjust after 
consummation. Proposed Sec.  1026.37(i)(1) through (3) would have 
required the disclosure to state affirmatively or negatively whether 
the loan has an interest only, payment-option, or step-payment period, 
and the length of such period. Proposed Sec.  1026.37(i)(4) also would 
have required the disclosure to state affirmatively or negatively 
whether the loan has a seasonal payment feature and the period during 
which periodic payments are affected by such feature. As discussed 
above with respect to proposed Sec.  1026.37(a)(10), the Bureau stated 
in the proposal that it understood that some loans may be structured so 
that periodic principal and interest payments are not required to be 
made by the consumer in between specified unit-periods on a regular 
basis.
    Proposed Sec.  1026.37(i)(5) would have required disclosure of 
principal and interest payments, including: (i) The number of the 
payment of the first periodic principal and interest payment that may 
change; (ii) the frequency of subsequent changes to the periodic 
principal and interest payment; and (iii) the maximum periodic 
principal and interest payment that may occur during the term of the 
transaction, and the first payment that can reach such maximum. 
Proposed comment 37(i)(5)-1 would have clarified that the applicable 
unit-period should be disclosed in the subheading required by proposed 
Sec.  1026.37(i)(5). Proposed comment 37(i)(5)-2 would have provided 
guidance on how to disclose the first payment adjustment required to be 
disclosed by Sec.  1026.37(i)(5)(i) when the exact payment number is 
unknown at the time of the disclosure. Proposed comment 37(i)(5)-3 
would have provided guidance regarding how to disclose the frequency of 
adjustments to the periodic principal and interest payment after the 
initial adjustment, as required by Sec.  1026.37(i)(5)(ii). Proposed 
comment 37(i)(5)-4 would have provided guidance regarding how to 
calculate the maximum periodic principal and interest payment for 
purposes of the disclosure required by proposed Sec.  
1026.37(i)(5)(iii). Proposed comment 37(i)(5)-5 would have provided 
guidance regarding the disclosure of payments that do not pay 
principal.
    Proposed comment 37(i)-1 would have clarified that under Sec.  
1026.37(i), the AP table may only be disclosed if the periodic 
principal and interest payment may change after consummation based on 
an adjustment that is not an adjustment to the interest rate, or if the 
transaction is a seasonal payment product as described in Sec.  
1026.37(a)(10)(ii)(E). As proposed, the creditor would not be permitted 
to disclose the table if the loan terms do not meet these requirements, 
even if the table were left blank. The format of the proposed table as 
required by Sec.  1026.37(o), and as illustrated by form H-24, 
including sample form H-24(C) of appendix H, would have provided the 
affirmative or negative statement in bold text in the form of a 
question and answer. In addition, the examples of the periodic 
principal and interest payments would have been set apart from these 
answers by a subheading in bold font. The Bureau stated its belief in 
the proposal that, based on consumer testing, this format displays the 
information in a readily visible, clear, and understandable manner for 
consumers. Proposed comment 37(i)-1 further would have referenced 
comment 37-1, which, as finalized, clarifies that the general 
permission in proposed Sec.  1026.37 to leave inapplicable disclosures 
blank is subject to the more specific prohibition in Sec.  1026.37(i), 
which does not permit disclosure of the AP table when it is not 
applicable. Proposed comment 37(i)-2 would have provided guidance and 
examples of how the information required by proposed Sec.  
1026.37(i)(1) through (4) should be disclosed.
    The format that would have been required by proposed Sec.  
1026.37(o), and illustrated by forms H-24, including a sample form H-
24(C) of appendix H, provides that the information required by proposed 
Sec.  1026.37(i) must be disclosed in a concise, organized table. This 
table would have appeared

[[Page 79971]]

immediately adjacent to the AIR Table required by proposed Sec.  
1026.37(j) for loans that also permit the interest rate to adjust after 
consummation. The AP table would have used bold font for the questions 
and capitalized ``yes'' and ``no'' text for the answers required by 
proposed Sec.  1026.37(i)(1), (2), (3), and (4). The AP table also 
would have used bold text for the subheading required by proposed Sec.  
1026.37(i)(5). Based on its testing, the Bureau believes this format 
displays the information in a clear, readily visible, and 
understandable manner for consumers.
    The Bureau stated its belief in the proposal that to promote the 
informed use of credit, loan terms that may cause the periodic 
principal and interest payment to adjust without a change to the 
interest rate (such as an optional payment loan), or may include a 
period during which the payment may not pay principal (such as an 
interest only period), or where the consumer is not required to make 
payments should be clearly disclosed to consumers. In the Bureau's pre-
proposal consumer testing, participants generally were able to use this 
information to evaluate the credit terms of the loan disclosed. For 
example, the Bureau stated in the proposal that it provided mortgage 
disclosures for interest only loans to participants using a prototype 
of an ``adjustable payment table'' at its consumer testing. The 
proposed table would have displayed whether the loan had an interest 
only, optional-payment, or step-payment period; the length of such 
period; the amount of the periodic principal and interest payment at 
the first adjustment; the frequency and amounts of subsequent 
adjustments; and the maximum possible principal and interest payment 
under the terms of the loan. As stated in the proposal, participants 
were able to use this table to determine the presence of the interest 
only period and the length of the period, as well as how the principal 
and interest payments would change as a result. Also, participants were 
able to understand that the purpose of the table generally was to 
inform them about such features. As described in the proposal, 
participants also were able to determine from the prototype table that 
the credit terms did not include one of the other features, such as an 
optional-payment or step-payment period.
    The Bureau proposed these requirements pursuant to TILA section 
128(b)(2)(C)(ii), and its authority under TILA section 105(a), section 
1032(a) of the Dodd-Frank Act, and, for residential mortgage loans, 
section 1405(b) of the Dodd-Frank Act. The Bureau proposed to use its 
authority under TILA section 105(a) to require this information to be 
disclosed for all transactions subject to Sec.  1026.19(e) and (f). The 
Bureau believed, as stated in the proposal, that this information may 
effectuate the purposes of TILA by allowing consumers to compare more 
readily the different loan terms available to them, and specifically, 
whether they contain such adjustable or seasonal payment terms. In 
addition, consistent with section 1032(a) of the Dodd-Frank Act, the 
Bureau stated that this disclosure would have ensured that the features 
of the transaction are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to understand the costs, 
benefits, and risks of the transaction. The Bureau further stated its 
belief in the proposal that this information may improve consumer 
awareness and understanding of transactions involving residential 
mortgage loans and is in the interest of consumers and in the public 
interest.
    One large bank commenter stated that the AP table and the similar 
AIR table required by proposed Sec.  1026.37(j) are vital for consumers 
and should be placed on the first page of the Loan Estimate and the 
Closing Disclosure. In contrast, a credit union commented that the AP 
and AIR tables were too detailed and would be confusing to consumers 
and thus should be eliminated from the integrated disclosures 
altogether. The Bureau received numerous comments from industry 
objecting to the requirement that the AP and AIR tables be included on 
the integrated disclosures only for certain transactions because doing 
so requires programming software for a ``dynamic'' form. These 
commenters noted that ``static'' forms which are the same for every 
transaction, such as the current RESPA GFE and RESPA settlement 
statement, are much less expensive to program. These commenters opined 
that requiring costly dynamic forms would force industry to pass such 
costs on to the consumer. Because the comments concern the required 
formatting of the various parts of the Loan Estimate, they are 
discussed in the section-by-section analysis of Sec.  1026.37(o), 
below.
    A document preparation company commented that consumers may be 
confused by the requirement in proposed comment 37(i)-2.iv, regarding 
seasonal payments, to disclose the months in which payments are not 
made. The commenter requested that instead of disclosing, for example, 
``from June to August,'' the disclosure should be ``no payment from 
June to August.'' A document preparation company further requested 
guidance on how to disclose a preferred rate product in the AP table.
    With respect to commenters' suggestions to either move or delete 
the AP and AIR tables altogether, based on the Bureau's extensive 
consumer testing of the integrated disclosures generally and the AP and 
AIR tables specifically, the Bureau believes that the tables provide 
valuable information to consumers. Indeed, the Bureau's testing 
confirms that consumers relied on the AP and AIR tables in making 
decisions regarding competing loan products. See Kleimann Testing 
Report at 144, 196. On the other hand, while the information disclosed 
on the AP and AIR tables is important, the Bureau has designed the 
integrated disclosures to place the information that is used most and 
that is the most easily understandable by consumers on the first page, 
with more detailed information provided on subsequent pages. See 
Kleimann Testing Report at xiii. Moreover, Sec.  1026.37(b)(6) requires 
a statement on the first page of the Loan Estimate referring to the AP 
and AIR tables if the transaction has an adjustable interest rate or 
adjustable payment feature. Accordingly, the Bureau declines either to 
delete the AP and AIR tables or to move them to the first page of the 
disclosures.
    With respect to commenters' criticism of the ``dynamic'' nature of 
the AP and AIR tables, the Bureau stated its belief in the proposal 
that the inclusion of the AP table in all transactions would be unduly 
distracting and confusing to a consumer and could contribute to 
information overload, especially if an entire table is included only to 
be left blank. Moreover, requiring disclosure of the AP and AIR tables 
only for transactions with adjustable interest rates or adjustable 
payment features makes it immediately obvious when transactions have 
those features and therefore easier for consumers to compare different 
loan products. Further, though the Bureau understands that dynamic 
programming may be more expensive for industry during the initial 
implementation of the integrated disclosures, software programming is a 
one-time cost that does not outweigh the expected benefit to consumers 
of including the AP and AIR tables only when applicable to the 
transaction.
    With respect to the disclosure of months in which seasonal payments 
are not made, while the Bureau understands the commenter's concern over 
potential confusion, a seasonal payment loan is a unique product 
marketed to consumers who likely already understand its seasonal 
nature. At the very least, the disclosure of ``June to August'' would

[[Page 79972]]

put a consumer on notice of irregular payments and encourage a confused 
consumer to ask questions of the creditor or settlement agent 
concerning the payment terms. Further, there is limited space on the 
Loan Estimate and a longer disclosure does not fit in the allowable 
space. Regarding the request for guidance on preferred rate 
transactions, consistent with existing comment 17(c)(1)-2.i, where the 
creditor offers the consumer a preferred rate, the disclosures should 
reflect the terms of the legal obligation.
    For the reasons discussed and pursuant to the legal authority 
described above and in the proposal, the Bureau is adopting Sec.  
1026.37(i), comments 37(i)-1 and -2 substantially as proposed but with 
minor modifications for clarity, and is adopting comments 37(i)(5)-1, -
2 -3, and -5 as proposed. The Bureau is adopting comment 37(i)(5)-4 as 
proposed with a modification to clarify that in the example of a fixed 
interest rate optional-payment loan with scheduled payments that result 
in negative amortization, the maximum payment disclosed should be 
calculated assuming the consumer elects to make the periodic payment 
that would increase the principal balance to the maximum amount at the 
latest time possible.
    37(j) Adjustable Interest Rate Table
    Currently, TILA does not expressly require disclosure of the 
interest rate for closed-end credit. However, as noted above, for 
closed-end credit secured by a dwelling, TILA section 128(b)(2)(C)(ii) 
requires disclosure of examples of the periodic principal and interest 
payment based on changes to the interest rate, including the maximum 
principal and interest payment during the life of the loan. 15 U.S.C. 
1638(b)(2)(C)(ii). Regulation Z Sec.  1026.18(s) currently requires, 
for closed-end credit transactions with adjustable interest rates 
secured by real property or a dwelling, disclosure of examples of the 
interest rate and periodic principal and interest payments, including 
the maximum of these amounts under the terms of the loan. For federally 
related mortgage loans, Sec.  1024.7(d) of Regulation X currently 
requires the summary table on page one of the RESPA GFE to disclose the 
initial interest rate, labeled ``Your initial interest rate is.'' Then 
below another row of the summary table stating the initial monthly 
payment, the RESPA GFE states whether the interest rate is adjustable 
as an affirmative or negative answer, labeled ``Can your interest rate 
rise?'' If the answer is affirmative, the RESPA GFE states the maximum 
interest rate and when the first change in the interest rate will occur 
within the following sentence: ``It can rise to a maximum of ---- %. 
The first change will be in ----.''
    The Bureau stated its belief in the proposal that loan terms that 
can cause the interest rate to adjust should be clearly disclosed to 
consumers. At the Bureau's pre-proposal consumer testing, participants 
generally stated that information regarding potential changes to the 
interest rate was important in their evaluation of a loan. Participants 
generally understood that the interest rate affected the amount of 
interest due under the loan and used the information regarding 
potential changes to the interest rate to evaluate loans. Although 
proposed Sec.  1026.37(b)(2) would have provided key information about 
interest rate adjustments, the Bureau stated in the proposal that it 
believed more detail regarding an adjustable interest rate is important 
because it would provide consumers with additional information 
regarding potential changes to the interest and periodic payments that 
may be useful in evaluating and comparing loans.
    As described in the proposal, the Bureau provided mortgage 
disclosures for adjustable interest rate loans to participants using a 
prototype of an ``Adjustable Interest Rate Table'' at its consumer 
testing. The table displayed information about the index and margin 
applicable to the loan, the initial interest rate, the minimum and 
maximum interest rates during the life of the loan, the frequency of 
changes to the interest rate, and limits on the interest rate changes. 
Participants in the pre-proposal testing were able to understand that 
the purpose of the table generally was to inform them about the 
adjustable interest rate terms under the loan and often used the table 
to compare adjustable rate loans. The table, as proposed, enabled 
consumers to determine the interest rate terms of the transaction and 
to compare two adjustable rate loans with different terms.
    Therefore, the Bureau proposed to use its authority under TILA 
section 105(a), section 1032(a) of the Dodd-Frank Act, and, for 
residential mortgage loans, section 1405(b) of the Dodd-Frank Act to 
require more detailed information regarding the terms of an adjustable 
interest rate to be disclosed in a separate table, called the AIR 
Table, under proposed Sec.  1026.37(j). As stated in the proposal, the 
information regarding the index and margin applicable to the interest 
rate changes, the lifetime cap and floor on the interest rate, and 
limits on interest rate adjustments are not currently provided together 
to consumers in a clear, readily visible, and understandable manner. 
Consumers can find this information within the promissory note, but the 
Bureau stated in the proposal that consumers typically do not receive 
the promissory note until they are at the closing table. The Bureau 
stated its belief in the proposal that disclosure of this information 
in the Loan Estimate and Closing Disclosure will enable consumers to 
verify whether these terms have changed during the loan process. The 
Bureau believed that this is especially important if the index and 
margin have changed or the lifetime maximum interest rate has changed, 
because such changes can significantly affect the amounts of periodic 
payments over the life of the loan.
    As described above and in the proposal, participants in the 
Bureau's pre-proposal consumer testing used much of this information 
and generally considered interest rate information to be an important 
factor in evaluating a loan. Participants were able to compare this 
information between loans and between the disclosures provided after 
application and prior to loan closing. As stated in the proposal, the 
Bureau believed this information may enable consumers to understand and 
compare credit terms more readily, effectuating the purposes of TILA. 
For similar reasons, the Bureau stated its belief that this disclosure 
will ensure that the features of the transactions are fully, 
accurately, and effectively disclosed to consumers in a manner that 
permits consumers to understand the costs, benefits, and risks, in 
light of the facts and circumstances, consistent with section 1032(a) 
of the Dodd-Frank Act. The Bureau also believed this information will 
improve consumer awareness and understanding of transactions involving 
residential mortgage loans through the use of disclosures, and is in 
the interest of consumers and in the public interest.
    Proposed Sec.  1026.37(j)(1) would have required disclosure of the 
index and margin for an adjustable rate loan for which the interest 
rate will adjust according to an external index. For a loan with an 
interest rate that changes based on scheduled or pre-determined 
interest rate adjustments and does not also change based on the 
adjustment of an external index, such as a ``step-rate'' product, 
proposed Sec.  1026.37(j)(2) would have required disclosure of the 
amount of any adjustments to the interest rate that are scheduled and 
their frequency. Pursuant to proposed Sec.  1026.37(j)(3) through (6), 
the table also would have required disclosure of: (i) The interest rate 
at consummation of the loan transaction; (ii) the minimum and

[[Page 79973]]

maximum possible interest rates after the introductory rate expires; 
(iii) the maximum possible change for the first adjustment of the 
interest rate; (iv) the maximum possible change for subsequent 
adjustments of the interest rate; (v) the number of months after 
interest for the first regularly scheduled periodic principal and 
interest payment begins to accrue when the interest rate may first 
change; and (vi) the frequency of subsequent interest rate adjustments.
    Proposed comment 37(j)-1 would have clarified that the table 
required by proposed Sec.  1026.37(j) may only be provided in the Loan 
Estimate when the interest rate may change after consummation. The 
creditor is not permitted to disclose the table in the Loan Estimate if 
the interest rate will remain fixed, even if the table is left blank. 
Proposed comment 37(j)(1)-1 would have provided guidance regarding how 
the name of the index may be shortened. Proposed comment 37(j)(2)-1 
would have clarified that the table discloses the information required 
by Sec.  1026.37(j)(2) only if the loan does not also permit the 
interest rate to adjust according to an external index. Proposed 
comment 37(j)(3)-1 would have provided guidance regarding the initial 
interest rate that must be disclosed. Proposed comment 37(j)(4)-1 would 
have clarified how the minimum interest rate should be disclosed if the 
legal obligation does not state a minimum rate. Proposed comment 
37(j)(4)-2 would have clarified how the maximum interest rate should be 
disclosed if the legal obligation does not state a maximum interest 
rate. While Sec.  1026.30 currently provides that a creditor must 
include a maximum interest rate in any closed-end consumer credit 
contract secured by a dwelling for which the annual percentage rate may 
increase after consummation, that section applies only to transactions 
secured by a dwelling.
    The disclosure required by proposed Sec.  1026.37(j)(4) applies to 
transactions subject to Sec.  1026.19(e), which includes consumer 
credit transactions secured by real property, which may not include a 
dwelling. Proposed comment 37(j)(5)-1 would have clarified that if the 
exact month of the first adjustment to the interest rate is not known 
at the time the disclosure is provided, the earliest possible month 
must be disclosed under proposed Sec.  1026.37(j)(6). Proposed comment 
37(j)(6)-1 would have clarified that when more than one limit applies 
to subsequent adjustments to the interest rate, the largest amount must 
be disclosed under proposed Sec.  1026.37(j)(6). The format required by 
proposed Sec.  1026.37(o), and illustrated by proposed form H-24, 
including sample form H-24(C) of appendix H, would have provided the 
information required by proposed Sec.  1026.37(j) in a concise, single 
table. This table would have appeared immediately adjacent to the AP 
table required by proposed Sec.  1026.37(i) for loans that permit the 
periodic principal and interest payment to adjust based on an 
adjustment other than an adjustment to the interest rate. The table 
would have used concise labels and bold subheadings for disclosures of 
the frequency of interest rate changes and the limits on interest rate 
changes. Based on its testing, the Bureau stated its belief in the 
proposal that this format displays the information in a clear, readily 
visible, and understandable manner for consumers.
    As it did for the AP table, the Bureau received comments generally 
criticizing or praising the placement of the AIR table on the Loan 
Estimate. Comments related to the placement of the tables are discussed 
in the section-by-section analysis of Sec.  1026.37(i), above. 
Moreover, the Bureau received comments from industry objecting to the 
dynamic nature of the AIR table disclosure because programming such a 
form is more expensive than programming a static form. The Bureau also 
received a comment from a document preparation company stating that 
referring to the Adjustable Interest Rate table as the ``AIR'' table 
would be confusing to industry because AIR is an acronym already used 
to refer to Appraiser Independence Requirements. A national trade 
association representing mortgage lenders commented that disclosing the 
index plus a margin is not useful for consumers and Sec.  1026.37(j)(1) 
should instead require disclosure of the index value plus the margin. A 
trade association representing mortgage lenders commented that 
disclosure of the initial interest rate in the AIR table pursuant to 
Sec.  1026.37(j)(3) would conflict with the requirement in proposed 
Sec.  1026.37(b)(2) to disclose the fully-indexed rate in the Loan 
Terms table and would therefore confuse consumers. A trade association 
representing mortgage lenders commented that the starting date for 
calculating the first month in which the interest rate may change 
pursuant to proposed Sec.  1026.37(j)(5)(i) was inconsistent with the 
starting date under proposed Sec.  1026.37(b)(8) for disclosure of 
changes to the interest rate in the Loan Terms section of the Loan 
Estimate. A document preparation company commenter suggested that 
proposed Sec.  1026.37(j)(6) seems to presume that interest rate cap 
adjustments would be equal for interest rate increases and for interest 
rate decreases. The commenter noted that this may not always be the 
case and requested guidance on how to disclose caps that differ for 
interest rate increases and decreases. The comments related to proposed 
Sec.  1026.37(o) as they affect the formatting of the various parts of 
the Loan Estimate will be discussed in the section-by-section analysis 
of that provision.
    With respect to the dynamic nature of the table, as more fully 
discussed above with respect to the AP table in Sec.  1026.37(i), the 
Bureau believes that the inclusion of a blank AIR table in transactions 
where it is not applicable would be unduly distracting and confusing to 
a consumer and potentially cause information overload. Further, the 
dynamic nature of the form may better enable consumers to compare 
different loan products. Though it may be more costly for industry to 
implement dynamic forms, the one-time cost of implementation does not 
outweigh the consumer benefit of a dynamic AIR table. Accordingly, the 
Bureau is adopting comment 37(j)-1 as proposed. Regarding the acronym 
``AIR,'' the Bureau received such a comment from only one source and 
does not believe that the acronym AIR as referring to Appraiser 
Independence Requirements is common enough to cause confusion with the 
Adjustable Interest Rate table acronym for consumers. The Bureau does 
not believe that industry will be confused by using the acronym in the 
context of the disclosures. Accordingly, the Bureau declines to revise 
the heading for the AIR table.
    Regarding the requirement in Sec.  1026.37(j)(1) that the index and 
margin be disclosed, the disclosure required is the index and not the 
index value, because the index value for an adjustable rate loan will 
change over the life of the loan and the Bureau believes it is useful 
for the consumer to understand that his or her interest rate is a 
function of an index plus a margin. Moreover, the only index value that 
could be disclosed on the Loan Estimate is the value on the date of the 
disclosure which is not useful to the consumer. The Bureau continues to 
believe that requiring disclosure of the external index used to 
determine an interest rate for an adjustable rate loan will benefit 
consumers and effectuate the purposes of both TILA and RESPA and 
accordingly is finalizing Sec.  1026.37(j)(1) as proposed.
    With respect to the comment that disclosure of the initial interest 
rate would conflict with the disclosure of

[[Page 79974]]

the interest rate required by Sec.  1026.37(b)(2), as discussed more 
fully in the section-by-section analysis of Sec.  1026.37(b)(2), the 
disclosure required in the Loan Terms table under Sec.  1026.37(b)(2) 
is the initial interest rate and not the fully-indexed rate as some 
commenters believed. Accordingly, there is no conflict between the 
rates disclosed to the consumer in the Loan Terms and AIR sections of 
the Loan Estimate. With respect to caps being different for interest 
rate increases and decreases, Sec.  1026.37(j)(6) requires disclosure 
of the maximum possible change that applies to the interest rate 
adjustments. Accordingly, a creditor would disclose the greater of the 
limits under Sec.  1026.37(j)(6).
    Regarding the beginning date for calculating the first month in 
which the interest rate may change pursuant to Sec.  1026.37(j)(5)(i), 
as discussed more fully in the section-by-section analysis of Sec.  
1026.37(b)(8), the starting date for calculations related to the 
interest rate is different from those related to payments because 
interest payments are made in arrears in most mortgage loan 
transactions. The beginning date for the time required to be disclosed 
in the disclosure required by Sec.  1026.37(j)(5)(i) and that for the 
disclosure required by Sec.  1026.37(b)(8)(i) is intended to be the 
same date. However, to provide additional clarity, the Bureau is 
revising the language in final Sec.  1026.37(j)(5)(i) to conform to the 
language in final Sec.  1026.37(b)(8)(i).
    The Bureau did not receive any comments regarding proposed Sec.  
1026.37(j)(2), (3), (4), or (6). The Bureau is adopting Sec.  
1026.37(j), (j)(1), (j)(2),(j)(3), (j)(4), and (j)(6) substantially as 
proposed, with minor modifications for clarity. The Bureau is revising 
Sec.  1026.37(j)(5) as described above, based on the legal authority 
described above and in the proposal. The Bureau did not receive any 
comments regarding any of proposed comments 37(j)(1)-1, 37(j)(2)-1, 
37(j)(3)-1, 37(j)(4)-1 or -2, 37(j)(5)-1, or 37(j)(6)-1. Accordingly, 
the Bureau is adopting those comments substantially as proposed, with 
minor modifications for clarity to comments 37(j)-1, 37(j)(4)-1 and -2, 
and 37(j)(5)-1.
37(k) Contact Information
    Under TILA section 128(a)(1) and Regulation Z Sec.  1026.18(a), the 
TILA disclosures must include the identity of the creditor. Comment 
18(a)-1 clarifies that the ``identity'' of the creditor must include 
the name of the creditor, but may also include the creditor's address 
and/or telephone number. As stated in appendix C to Regulation X, the 
RESPA GFE must include the name, address, phone number, and email 
address (if any) of the loan originator.
    TILA, RESPA, and their implementing regulations do not currently 
require the disclosure of contact information for the individual loan 
officer, however. Therefore, the Bureau proposed to require that the 
Loan Estimate contain certain contact information for the loan officer 
as set forth in proposed Sec.  1026.37(k) based on its authority under 
TILA section 105(a), RESPA section 19(a), Dodd-Frank Act section 
1032(a), and, for residential mortgage loans, Dodd-Frank Act section 
1405(b). The Bureau stated in the proposal that it believed this 
contact information will effectuate the purposes of TILA and RESPA by 
facilitating the informed use of credit and ensuring that consumers are 
provided with greater and more timely information on the costs of the 
settlement process. The Bureau further stated its belief that providing 
consumers with multiple types of contact information for the loan 
officers with whom they interact on the transaction will allow 
consumers easier access to information relevant to the transaction 
(including costs), which in turn ensures that the features of the 
transaction are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to understand the costs, 
benefits, and risks associated with the transaction in light of the 
facts and circumstances, consistent with Dodd-Frank Act section 
1032(a). Moreover, the Bureau believed that such disclosure will 
improve consumers' awareness and understanding of residential mortgage 
transactions, which is in the interest of consumers and the public, 
consistent with Dodd-Frank Act section 1405(b).
    In light of the differing requirements under TILA and RESPA with 
regard to the types of contact information disclosed on the early TILA 
disclosure and RESPA GFE, respectively, the Bureau also proposed Sec.  
1026.37(k) based on its mandate under sections 1032(f), 1098, and 1100A 
of the Dodd-Frank Act to propose rules and forms that combine the 
disclosures required under TILA and sections 4 and 5 of RESPA into a 
single, integrated disclosure for mortgage loan transactions covered by 
those laws. As discussed above, appendix C to Regulation X states that 
the RESPA GFE must include the name, address, phone number, and email 
address (if any) of the loan originator. Accordingly, as part of the 
Bureau's statutory mandate to integrate the TILA and RESPA disclosures, 
the Bureau stated in the proposal that it must integrate the 
disclosures currently required under Regulation X with the TILA-
mandated disclosures of the creditor's identity, discussed above. 
Furthermore, TILA section 129B(b)(1)(B), 15 U.S.C. 1639b(b)(1)(B), 
which was added by section 1402(a)(2) of the Dodd-Frank Act, mandates 
that each mortgage originator include on all loan documents any unique 
identifier of the mortgage originator provided by the Nationwide 
Mortgage Licensing System and Registry (NMLSR or NMLS). TILA section 
129B(b)(1)(B) has been implemented in a separate rulemaking, the 
Bureau's 2013 Loan Originator Final Rule, 78 FR 11279 (Feb. 15, 2013), 
as Sec.  1026.36(g).
    The Bureau proposed to use its authority under TILA section 105(a) 
and Dodd-Frank Act sections 1032(a) and, for residential mortgage 
loans, 1405(b) of the Dodd-Frank Act to propose Sec.  1026.37(k) for 
transactions subject to proposed Sec.  1026.19(e). Proposed Sec.  
1026.37(k) would have required creditors to provide certain contact and 
licensing information for themselves, the mortgage broker, and their 
respective loan officers, as applicable. In the proposal, the Bureau 
stated its expectation to harmonize the final rule with the rulemaking 
implementing TILA section 129B(b)(1)(B).
    The Bureau stated its belief in the proposal that requiring on the 
Loan Estimate the disclosure of the name and NMLSR identification 
number (NMLSR ID) number, if any, for the creditor, mortgage broker, 
and the loan officers employed by such entities, as applicable (or, if 
none, the license number or other unique identifier, if any, issued by 
the applicable State, locality, or other regulatory body with 
responsibility for licensing and/or registering such entity's or 
individual's business activities) may provide consumers with the 
information they need to conduct the due diligence necessary to ensure 
that any creditor, mortgage broker, and associated loan officer 
selected to originate the loan is appropriately licensed. The Bureau 
further stated its belief that having this information may help 
consumers assess the risks associated with services and service 
providers retained in connection with the transaction, which in turn 
promotes the informed use of credit (consistent with TILA section 
105(a)), ensures that consumers are provided with greater and more 
timely information on the costs of the settlement process (consistent 
with RESPA section 19(a)), ensures that the features of the transaction 
are fully, accurately, and effectively disclosed to consumers in a 
manner that permits consumers to understand the costs, benefits, and 
risks associated with the transaction in light

[[Page 79975]]

of the facts and circumstances (consistent with Dodd-Frank Act section 
1032(a)), and improves consumers' awareness and understanding of 
residential mortgage transactions, which is in the interest of 
consumers and the public (consistent with Dodd-Frank Act section 
1405(b)).
    Thus, under the master heading ``Additional Information About This 
Loan,'' proposed Sec.  1026.37(k)(1) would have required the name and 
NMLSR ID, if any, for the creditor and the mortgage broker, if 
applicable. Proposed Sec.  1026.37(k)(2) would have required the name 
and NMLSR ID for the loan officer associated with the creditor and 
mortgage broker identified in proposed Sec.  1026.37(k)(1), if 
applicable. In the event the creditor, mortgage broker, or individual 
loan officer has not been assigned an NMLSR ID, proposed Sec.  
1026.37(k)(1) and (2) would have required the license number or other 
unique identifier issued by the applicable jurisdiction or regulating 
body with which the creditor or mortgage broker is licensed and/or 
registered to be disclosed, if any. Proposed Sec.  1026.37(k)(3) would 
have required an email address and phone number for each loan officer 
identified in proposed Sec.  1026.37(k)(2).
    Proposed comment 37(k)-1 would have provided a description of the 
NMLSR ID. Proposed comment 37(k)-1 also referenced provisions of the 
Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (SAFE 
Act) requiring individuals to register or obtain a license through the 
NMLSR, and clarifies that the information required in Sec.  
1026.37(k)(1) and (2) must be provided for any creditor, mortgage 
broker, and loan officer that has obtained an NMLSR ID. Proposed 
comment 37(k)-2 would have provided clarification as to the nature of 
the license or other unique identifier that is to be disclosed in the 
event the creditor, mortgage broker, or individual loan officer has not 
been assigned an NMLSR ID. Proposed comment 37(k)-3 would have 
clarified that the loan officer is the individual who interacts most 
frequently with the consumer and who has an NMLSR identification number 
or, if none, a license number, or other unique identifier to be 
disclosed under proposed Sec.  1026.37(k)(2), as applicable.
    Several trade associations representing mortgage lenders requested 
guidance on whether a creditor could provide a general email address 
and phone number for the creditor or loan originator organization, 
rather than for an individual loan officer in the event that the 
individual loan officer were unavailable. Two GSEs commented and stated 
in an ex parte meeting that disclosure of a State license 
identification number or other unique identifier will not be useful to 
industry or consumers without stating the State or locality which 
issued the license.
    With respect to the commenter's request to provide a general phone 
number or email address, the Bureau believes that providing such a 
general phone number or email address for the loan officer's lender or 
mortgage broker, as applicable, would comply with Sec.  1026.37(k)(3) 
if no such information is generally available for the loan officer and 
is adding comment 37(k)-4 to that effect. The Bureau is otherwise 
adopting Sec.  1026.37(k)(3) as proposed.
    In response to the comment that disclosure of a State license 
identification number would be more useful with a disclosure of which 
State issued the license, the Bureau is revising Sec.  1026.37(k)(1) 
and (2) to require the disclosure of the abbreviation for the State of 
the applicable jurisdiction before the word ``License'' in the 
disclosure required by Sec.  1026.37(k)(2). The Bureau is also revising 
Sec.  1026.37(k)(2) to clarify that the loan officer must be disclosed 
for both the creditor and the mortgage broker, if there is a mortgage 
broker in the transaction. The Bureau is further revising comment 
37(k)-2 to clarify how to disclose the State abbreviation.
    For the reasons discussed and pursuant to the legal authority 
described above, the Bureau is adopting Sec.  1026.37(k)(2) and comment 
37(k)-2 as revised to clarify the requirement to disclose the loan 
officer for both the creditor and the mortgage broker, if any, and is 
further revising Sec.  1026.37(k)(1), (2) and comment 37(k)-2 to 
require disclosure of the abbreviation for the applicable State issuing 
a license identification. The Bureau is also making a technical 
revision to Sec.  1026.37(k)(1) to remove the requirement to disclose 
the name of the primary contact for the consumer because that 
requirement is already in Sec.  1026.37(k)(2). The Bureau is adopting 
Sec.  1026.37(k)(3) as proposed. The Bureau is adopting comments 37(k)-
1 and -3 substantially as proposed but with minor modifications for 
clarity. The Bureau is adding comment 37(k)-4 to permit disclosure of a 
general email address and phone number under limited circumstances. The 
Bureau believes that final Sec.  1026.37(k) and its accompanying 
commentary are consistent with Sec.  1026.36(g) as adopted by the 2013 
Loan Originator Final Rule, which implemented TILA section 
129B(b)(1)(B) and requires a loan originator organization to include 
its name and NMLSR ID as well as the name and NMLSR ID of any 
individual loan originator with primary responsibility for the loan 
origination on certain specified loan documents for all consumer credit 
transactions secured by a dwelling.
37(l) Comparisons
    TILA generally focuses on disclosing the long-term cost of credit. 
However, many of the disclosures required by the statute have proven 
confusing for consumers. As discussed below and in part II.D above, 
Federal agencies have long recognized that certain statutorily-required 
disclosures, such as the finance charge and amount financed, are of 
limited effectiveness for communicating the cost of credit to consumers 
and that, in some cases, the disclosures hinder consumers' ability to 
understand their credit terms. One problem with the TILA disclosures is 
consumer confusion between common contract terms, such as interest rate 
and loan amount, and the required statutory disclosures such as the 
annual percentage rate and the amount financed. For example, the Board-
HUD Joint Report and consumer testing conducted by the Board and the 
Bureau indicate consumer confusion exists over the difference between 
the contract interest rate and the annual percentage rate (APR), in 
part because both are expressed in the form of a rate and in part 
because of the difficulty in communicating to consumers the meaning of 
the APR. The TILA disclosures also focus on the cost of credit based on 
the loan's contractual term, which for mortgages is typically 15 or 30 
years. Because many consumers do not hold their mortgages to term, the 
TILA disclosures do not accurately reflect the cost of credit in these 
circumstances. As discussed below and in part III above, the results of 
the Bureau's consumer testing is consistent with these concerns.
    The Bureau believes that providing consumers with useful tools to 
compare loans is critical to carrying out the purposes of TILA, RESPA, 
and the Dodd-Frank Act. Accordingly, for the reasons described below, 
the Bureau grouped several key metrics together on the first page of 
the Loan Estimate and shifted others to the last page of the Loan 
Estimate. In addition, the Bureau provided certain items only on the 
Closing Disclosure because they are less useful to consumers early in 
the lending process and create the risk of undermining the 
effectiveness of the Loan Estimate. The forms focused on presenting the 
basic loan terms and risk features to consumers first, because these 
disclosures are critical to

[[Page 79976]]

evaluating affordability and facilitating comparison of loans and are 
readily understandable to consumers, unlike other statutory 
disclosures. The Bureau adopted this approach to the TILA disclosures 
because consumer testing conducted by the Bureau, as well as prior 
testing conducted by the Board, strongly indicates that consumers 
benefit from a disclosure that highlights loan terms that are 
understandable and useful to consumers in evaluating the costs of 
credit and consumers' ability to afford those costs, such as the 
interest rate, monthly payment amount, and amount of cash needed to 
close the loan, and deemphasizes terms that have proven confusing or of 
limited use to consumers. See Kleimann Testing Report at 297-304.
    Based on research regarding consumer comprehension and behavior and 
the results of the Bureau's consumer testing, the Bureau believes that 
the disclosure of the total payments (of principal, interest, mortgage 
insurance, and loans costs) a consumer will have made through the end 
of the 60th month after the due date of the first periodic payment (In 
5 Years), the annual percentage rate (APR), and the total interest 
percentage (TIP) calculations on the final page of the Loan Estimate 
and apart from the key loan terms may enhance the overall understanding 
of the disclosures. The Bureau's consumer testing also confirmed that 
consumers are able to locate the longer-term measures of the cost of 
credit, notwithstanding the fact that the forms shift those disclosures 
from the first page of the disclosure. Moreover, the Bureau's consumer 
testing suggested that moving the disclosure of the APR away from the 
disclosure of the loan's contract interest rate and placing the APR 
with other long-term metrics may reduce consumer confusion and 
highlight the APR as a special tool for comparing costs over time. See 
Kleimann Testing Report at 297-304.
    Accordingly, proposed Sec.  1026.37(l) would have required 
creditors to disclose a table containing information required by TILA 
section 128(a)(4), (5), (8), and (19): (1) The total payments 
(principal, interest, mortgage insurance, and loan costs) a consumer 
will have made through the end of the 60th month after the due date of 
the first periodic payment (In 5 Years); (2) the APR; and (3) the total 
interest percentage (TIP), as described in Sec.  1026.37(l)(1) through 
(3). The table would have appeared under the master heading 
``Additional Information About This Loan,'' with the heading 
``Comparisons,'' along with the statement, ``Use these measures to 
compare this loan with other loans.'' The comparisons table would have 
appeared on the final page of the Loan Estimate, apart from the key 
loan terms identified on the first page of the Loan Estimate. See 
proposed Sec.  1026.37(o) and proposed form H-24.
37(l)(1) in Five Years
The Bureau's Proposal
    The total of payments disclosure has been confusing for consumers 
during consumer testing. For example, consumer testing conducted for 
purposes of the Board's 2009 Closed-End Proposal found that many 
consumers did not understand the total of payments disclosure and that, 
even when consumers understood the meaning, most did not consider it 
important in their decision-making process. Macro 2009 Closed-End 
Report at v, 11. Based on the Board's testing and prior research about 
the total of payment disclosure, the Bureau considered alternative 
metrics that might prove more useful to consumers. As discussed above, 
one problem with the TILA-required disclosures is that they are 
calculated over the entire length of the loan, although consumers may 
typically only hold mortgage loans for five to seven years before 
selling the property or refinancing. Accordingly, the total of payments 
over the life of the loan is such a large number that consumers often 
find it overwhelming or unrealistic, and therefore not a meaningful 
disclosure of the cost of credit.
    Furthermore, the total of payments over the life of the loan does 
not provide an accurate basis for identifying the lowest cost loan for 
the time a consumer may actually hold the loan. The Bureau also 
recognized that simply providing one disclosure would not give 
consumers an accurate view of how much their payments actually reduce 
the principal balance of the loan, which would help consumers pick the 
loan that puts them in the best financial position after the five to 
seven year mark if they do not sell the property or refinance. 
Accordingly, the Bureau developed a two-element disclosure.
    First, proposed Sec.  1026.37(l)(1)(i) would have required the 
creditor to disclose the dollar amount of the total principal, 
interest, mortgage insurance, and loan costs (disclosed pursuant to 
proposed Sec.  1026.37(f)) scheduled to be paid through the end of the 
60th month after the due date of the first periodic payment, expressed 
as a dollar amount, along with the statement ``Total you will have paid 
in principal, interest, mortgage insurance, and loan costs.'' Proposed 
comment 37(l)(1)(i)-1 would have clarified that the amount disclosed 
pursuant to Sec.  1026.37(l)(1)(i) is the sum of principal, interest, 
mortgage insurance, and loan costs scheduled to be paid through the end 
of the 60th month after the due date of the first periodic payment. The 
comment also would have clarified that, for purposes of Sec.  
1026.37(l)(1)(i), interest is calculated using the fully-indexed rate 
at consummation and includes any prepaid interest. The comment would 
have further provided that, for purposes of Sec.  1026.37(l)(1)(i), the 
creditor assumes that the consumer makes payments as scheduled and on 
time. In addition, proposed comment 37(l)(1)(i)-1 would have provided 
that, for purposes of Sec.  1026.37(l)(1)(i), mortgage insurance is 
defined pursuant to comment 37(c)(1)(i)(C)-1, and includes prepaid or 
escrowed mortgage insurance, and that loan costs are those costs 
disclosed pursuant to Sec.  1026.37(f). Proposed comment 37(l)(1)(i)-2 
would have provided guidance to creditors on calculating principal and 
interest disclosures for loans with negative amortization features. 
Proposed Sec.  1026.37(l)(1)(i) would have implemented the requirements 
of TILA section 128(a)(5) and (8) for transactions subject to proposed 
Sec.  1026.19(e). The Bureau proposed to modify the total of payments 
disclosure to reflect the total payments over five years, rather than 
the life of the loan, on the Loan Estimate provided to consumers near 
the time of application. The Bureau proposed this modification pursuant 
to its authority under TILA section 105(a), Dodd-Frank Act 1032(a), 
and, for residential mortgage loans, Dodd-Frank Act section 1405(b).
    Second, proposed Sec.  1026.37(l)(1)(ii) would have required the 
creditor to disclose the dollar amount of principal scheduled to be 
paid through the end of the 60th month after the due date of the first 
periodic payment, expressed as a dollar amount, along with the 
statement ``Principal you will have paid off.'' Proposed comment 
37(l)(1)(ii)-1 would have clarified that the disclosure required by 
proposed Sec.  1026.37(l)(1)(ii) is calculated in the same manner as 
the disclosure required by proposed Sec.  1026.37(l)(1)(i), provided, 
however, that the disclosed amount reflects only the total payments to 
principal through the end of the 60th month after the due date of the 
first periodic payment.
Comments
    In response to the proposal, a number of commenters favored the 
disclosure. Several trade association commenters noted that the ``In 5 
Years'' disclosure is on the Loan Estimate, and the Total

[[Page 79977]]

of Payments disclosure is on the Closing Disclosure. According to these 
commenters, the Bureau should require only the more useful disclosure 
in order to improve consistency, enhance the ability of consumers to 
compare the Loan Estimate with the Closing Disclosure, and reduce 
compliance burden.
    One industry commenter argued that this disclosure would further 
confuse consumers regarding the costs and interest associated with a 
loan. Another industry commenter argued that this disclosure is 
misleading and wasteful if the loan terms extend beyond five years. A 
trade association commenter favored eliminating this disclosure, 
arguing that the Loan Estimate is already long enough and that this 
would help reduce information overload. Several consumer advocacy group 
commenters stated that the ``In 5 Years'' disclosure would not help 
consumers differentiate between high cost and low cost loans because 
the cost of the loan depends on whether and how the closing costs are 
financed, and that the disclosure needs to account for whether the 
consumer finances the closing costs and to convey the impact of prepaid 
finance charges. One industry commenter suggested that the Bureau 
should add back the Total of Payments disclosure to the Loan Estimate 
in order to more credibly, reliably, and accurately reflect the loan's 
total cost and create more consistency between the Loan Estimate and 
Closing Disclosure.
    Some commenters raised concerns about how to calculate this 
disclosure and sought clarification with respect to adjustable rate 
mortgage loans. One industry commenter argued that calculating the 
disclosure based on the fully-indexed rate fails to account for a 
situation where the interest rate begins to adjust before the 60th 
payment, and that the use of the fully-indexed rate will give consumers 
inaccurate information regarding the true economics of their mortgage 
loan, which is very important for consumers who do not plan to keep 
their home for 5 years. This commenter suggested that the commentary be 
revised to indicate that the disclosure be calculated using the actual 
initial rate and maximum interest rate at the first and subsequent 
adjustment dates. Several trade association commenters argued that the 
calculation of this disclosure should be based on the actual initial 
interest rate, while assuming that the index value in effect at 
consummation will not change over the life of the loan and that the 
interest rate will adjust as provided for in the legal obligation. 
These commenters also argued that the prepaid interest on an adjustable 
rate mortgage loan should be based on the initial actual rate and not 
the fully-indexed rate, and that the amount of mortgage insurance 
included in the calculation will be affected by the interest rate used 
and whether it is assumed to increase as quickly as possible.
    Several trade association commenters questioned the inclusion of 
loan costs in the ``In 5 Years'' disclosure, noting that if the final 
rule requires disclosure of the APR and finance charge, using loan 
costs for some calculations and prepaid finance charges for others will 
unnecessarily increase compliance burden. These commenters also 
questioned the definition of ``loan costs'' in comment 37(l)(1)(i)-1 
which defines loan costs as costs disclosed under Sec.  1026.37(f), 
arguing that the amount disclosed would be overstated because the 
definition does not account for credits provided by the creditor, 
mortgage broker, seller, or other party. One industry commenter argued 
that the ``In 5 Years'' calculation needs to include credits provided 
by the creditor because if they are not included, then the same 
mortgage loan will look more expensive if it is offered by a mortgage 
broker instead of a mortgage banker.
    An industry commenter argued that instead of displaying the 
principal amount the consumer has paid in five years, the Bureau should 
replace it with the remaining unpaid principal balance metric because 
it is more meaningful and is a better representation of refinancings, 
where higher upfront costs are financed, resulting in a lower principal 
amount paid over five years but a higher principal balance.
    One industry commenter argued that the ``In 5 Years'' disclosure in 
some ways inhibits the flexibility of community banks that often make 
mortgage loans with terms no longer than 36 months due to interest rate 
risk concerns. This commenter argued that the ``In 5 Years'' 
calculation should not include the balloon payment, if applicable, 
because that would be misleading if a consumer is seeking to compare 
short-term and long-term loans.
Final Rule
    For the reasons discussed below, the Bureau is adopting Sec.  
1026.37(l)(1) and comment 37(l)(1)(ii)-1 as proposed. Section 
1026.37(l)(1)(i) requires disclosure of the total principal, interest, 
mortgage insurance, and loan costs scheduled to be paid through the end 
of the 60th month after the due date of the first periodic payment, 
expressed as a dollar amount, along with the statement ``Total you will 
have paid in principal, interest, mortgage insurance, and loan costs.'' 
As discussed above, some commenters disfavored the inclusion of the 
``In 5 Years'' disclosure due to concerns that it would be confusing to 
consumers, would cause information overload, and would not be valuable 
to consumers if the loan terms extend beyond five years. Another 
commenter argued that instead of displaying the principal amount the 
consumer has paid in five years, the Bureau should replace it with the 
remaining unpaid principal balance metric. However, as discussed in the 
proposal and in the Kleimann Testing Report, consumer testing conducted 
by the Bureau indicates that consumers can use the ``In 5 Years'' 
disclosure to compare loans they are considering and that, in some 
instances, these disclosures increase consumers' understanding of loan 
costs. See Kleimann Testing Report at xxvii, 297-299; 77 FR 51116, 
51222-51223. The ``In 5 Years'' disclosure shows how much will be paid 
in total and the amount of principal that will be paid off in the five 
years after the loan closes, which is roughly the time period the 
average consumer stays in a loan. In addition, the Bureau believes that 
it is a more accessible time period for consumers than the life of the 
loan (typically 30 years), which is used in other disclosures, such as 
the current TILA ``Total of Payments'' disclosure. Most participants at 
the Bureau's consumer testing used the total payments and the principal 
paid components of the ``In 5 Years'' disclosure to compare the loan 
with the other loan they were considering and, sometimes, to increase 
their understanding of loan costs. See Kleimann Testing Report at 297-
299. Consumer participants understood the relationship of principal and 
interest and generally wanted to choose loans with more principal paid 
off during the first five years. For example, some consumers who did 
not understand from page one of the Loan Estimate that a loan provided 
for interest only payments for a specified period were able to 
recognize that they would be making interest only payments as a result 
of the principal-paid component of the ``In 5 Years'' disclosure. 
Several industry participants stated that this disclosure covered a 
manageable period of time that could be useful to participants. See 
Kleimann Testing Report at 299.
    Industry feedback provided in response to the Bureau's Small 
Business Review Panel Outline and in comments

[[Page 79978]]

stated that implementation of the ``In 5 Years'' disclosure will 
require additional training and systems changes, and that it is unclear 
whether the disclosure will assist consumers. Most industry 
participants in the Bureau's consumer testing did not think that 
consumers would want to know the information in the disclosure, and 
some thought that the period should vary according to the loan term. 
See Kleimann Testing Report at 299. The Bureau has considered this; 
however, the consumer testing results discussed above indicated that 
consumers found the information useful. Thus, the Bureau believes that 
the ``In 5 Years'' disclosure will provide important benefits to 
consumers by disclosing the total of payments over a period that more 
accurately reflects the typical life of a mortgage loan.
    The Bureau also is exercising its authority under TILA section 
105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage 
loans, Dodd-Frank Act section 1405(b) to include mortgage insurance and 
other loan costs in the ``In 5 Years'' calculation. TILA section 
128(a)(5) defines the total of payments as the sum of the amount 
financed and the finance charge. However, the Bureau believes including 
mortgage insurance and other loan costs, rather than the finance 
charge, in the calculation may enhance consumer understanding of 
mortgage transactions because consumers can cross-reference other 
sections of the Loan Estimate to determine what costs are actually 
included in the ``In 5 Years'' disclosure, permitting consumers to more 
readily compare loans, consistent with the purposes of TILA. In 
contrast, as discussed below, consumers have no way to know which costs 
are included in the finance charge. For these same reasons, the Bureau 
believes that the modification will ensure that the features of 
consumer credit transactions secured by real property are fully, 
accurately, and effectively disclosed to consumers in a manner that 
permits consumers to understand the costs, benefits, and risks 
associated with the product or service, in light of the facts and 
circumstances, consistent with section 1032(a) of the Dodd-Frank Act, 
and will improve consumer awareness and understanding of residential 
mortgage loans and be in the interest of consumers and the public, 
consistent with Dodd-Frank Act section 1405(b).
    Section 1026.37(l)(1)(ii) requires creditors to disclose the dollar 
amount of principal scheduled to be paid through the end of the 60th 
month after the due date of the first periodic payment. The Bureau is 
adopting this requirement, in addition to Sec.  1026.37(l)(1)(i), 
pursuant to its authority under TILA section 105(a) and Dodd-Frank Act 
section 1032(a). As discussed above, the Bureau believes the disclosure 
will enhance consumers' understanding of the allocation of their 
payments between principal and interest and help consumers select the 
loan that puts them in the best financial position after a five-to-
seven-year period if they do not sell the property or refinance, 
consistent with the purposes of TILA. For these same reasons, 
consistent with section 1032(a) of the Dodd-Frank Act, the Bureau 
believes that the disclosure would ensure that the features of consumer 
credit transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances.
    As discussed above, one industry commenter suggested that the 
Bureau should add back the Total of Payments disclosure to the Loan 
Estimate in order to more closely reflect the loan's total cost and 
create more consistency between the Loan Estimate and Closing 
Disclosure. However, the ``In 5 Years'' disclosure is a modified Total 
of Payments disclosure designed to improve consumer understanding of 
the loan transaction. The Bureau is modifying the existing TILA total 
of payments disclosure to reflect the total payments over five years, 
rather than the life of the loan, on the Loan Estimate provided to 
consumers near the time of application.
    The Bureau recognizes, however, that the Total of Payments 
disclosure is commonly used by creditors and supervisory agencies for 
compliance purposes, as well as consumer advocates. Therefore, under 
the final rule, creditors will be required to disclose a modified total 
of payments over the loan's full term in the Closing Disclosure 
provided to consumers at least three business days prior to 
consummation. See the section-by-section analysis of Sec.  
1026.38(o)(1).
    As discussed above, one industry commenter argued that the ``In 5 
Years'' disclosure in some ways inhibits the flexibility of community 
banks that often make mortgage loans with terms no longer than 36 
months due to interest rate risk concerns. However, the Bureau notes 
that comment 37(l)(1)-1 should address any concerns regarding loans 
with shorter terms because it clarifies that in transactions with a 
scheduled loan term of less than 60 months, to comply with Sec.  
1026.37(l)(1), the creditor discloses the amounts paid through the end 
of the loan term.
    With respect to the comments concerning the definition of ``loan 
costs'' and credits, the Bureau has considered this feedback but, in 
light of the research and consumer testing results discussed above, 
nevertheless believes that the ``In 5 Years'' disclosure as proposed 
will provide important benefits to consumers. The Bureau does not 
believe that the total loan costs factored into the ``In 5 Years'' 
disclosure should account for lender credits. As disclosed under Sec.  
1026.37(f) and reflected in the Closing Cost Details on page 2 of the 
Loan Estimate, total loan costs include origination charges, services 
the consumer cannot shop for, and services the consumer can shop for, 
but do not include lender credits. The total loan costs, along with 
other costs such as taxes and other government fees, prepaid charges, 
and the initial escrow payment at closing, combined with lender 
credits, compose the total closing costs disclosed under Sec.  
1026.37(h), which is a separate and distinct metric. As discussed 
above, consumer testing conducted by the Bureau indicates that 
consumers can use the ``In 5 Years'' disclosure to compare loans they 
are considering and that these disclosures increase consumers' 
understanding of loan costs. See Kleimann Testing Report at 297-299. 
The Bureau believes, as it stated in the proposal, that one of the 
benefits of the modification to the calculation of Total of Payments is 
that consumers can identify and compare the components of the ``In 5 
Years'' calculation, enhancing consumer understanding of the 
transaction. The Bureau also believes that the inclusion of the total 
loan costs in the ``In 5 Years'' disclosure will promote the informed 
use of credit and more effectively advance disclosure of settlement 
costs, which are purposes of TILA and RESPA, respectively. Furthermore, 
the Bureau believes that to enable such identification of the 
components of the calculation, the loan costs cannot be included after 
subtracting out lender credits. Lender credits are disclosed in a 
separate section of the disclosure and are not factored into loan costs 
disclosed under Sec.  1026.37(f). Accordingly, the Bureau believes such 
a disclosure would not be readily understandable and could be confusing 
to consumers.
    In response to the comments received, the Bureau is amending 
comment 37(l)(1)(i)-1 to provide greater clarity regarding the 
calculation of the interest component of this disclosure for mortgage 
loans with multiple interest rates. In particular, in mortgage loans

[[Page 79979]]

that are Adjustable Rate products under Sec.  1026.37(a)(10)(i)(A), 
when creditors use an initial interest rate that is not calculated 
using the index or formula for later rate adjustments, such as a 
discounted rate, the disclosure should reflect a composite annual 
percentage rate based on the initial rate for as long as it is charged 
and, for the remainder of the term, the rate that would have been 
applied using the index or formula at the time of consummation. Comment 
37(l)(1)(i)-1 now cross-references comment 17(c)(1)-10 for purposes of 
reflecting the effect of multiple rates in the calculation of the ``In 
5 Years'' disclosure, and clarifies that the interest calculation 
includes any prepaid interest. The Bureau has also amended comment 
37(l)(1)(i)-1 to provide clarity with respect to the cross-reference to 
comment 37(c)(1)(i)(C)-1 for the definition of mortgage insurance under 
Sec.  1026.37(l)(1)(i). The Bureau is also modifying comment 
37(l)(1)(i)-2 to refer to the negative amortization loan feature under 
Sec.  1026.37(a)(10)(ii)(A). The Bureau believes that referring to the 
product types and features under Sec.  1026.37(a)(10) in comments 
37(l)(1)(i)-1 and -2 will facilitate compliance. The Bureau is also 
amending comment 17(c)(1)-10.ii to clarify that the effect of the 
multiple rates must be reflected in the disclosures required under 
Sec.  1026.37(l).
37(l)(2) Annual Percentage Rate
The Bureau's Proposal
    TILA section 128(a)(4) and (8) requires creditors to disclose the 
annual percentage rate, together with a brief descriptive statement of 
the annual percentage rate. 15 U.S.C. 1638(a)(4), (a)(8). Current Sec.  
1026.18(e) implements these statutory provisions by requiring creditors 
to disclose the ``annual percentage rate,'' using that term, and a 
brief description such as ``the cost of your credit as a yearly rate.'' 
In addition, TILA section 122(a) requires that the annual percentage 
rate be more conspicuous than other disclosures, except the disclosure 
of the creditor's identity. 15 U.S.C. 1632(a). This requirement is also 
implemented in current Sec.  1026.18(e). As discussed above, concerns 
have been raised repeatedly over the last two decades that consumers 
are confused by what the APR represents and do not use it for its 
intended purpose: to compare loans. As discussed in the proposal and 
the Kleimann Testing Report, the Bureau's consumer testing similarly 
indicates consumer confusion regarding the APR disclosure and that 
consumers do not use the APR when comparing loans. See Kleimann Testing 
Report at 297-304.
    Pursuant to its implementation authority under TILA section 105(a), 
the Bureau proposed Sec.  1026.37(l)(2) to implement the requirements 
of TILA section 128(a)(4) and (8) for transactions subject to proposed 
Sec.  1026.19(e) by requiring creditors to disclose the ``annual 
percentage rate'' and the abbreviation ``APR,'' together with the 
following statement: ``Your costs over the loan term expressed as a 
rate. This is not your interest rate.'' On the basis of its consumer 
testing and research that showed that consumers often confuse the APR 
with their contract interest rate, the Bureau included the sentence 
``This is not your interest rate.'' Further, in light of consumer 
confusion over the APR and the fact that consumers do not appear to use 
the APR in comparing loan offers, the Bureau proposed to exercise its 
authority under TILA section 105(a) and (f), Dodd-Frank Act section 
1032(a) and, for residential mortgage loans, Dodd-Frank Act section 
1405(b), to except transactions subject to Sec.  1026.19(e) from the 
requirement of TILA section 122(a) that the annual percentage rate 
disclosure be more conspicuous than other disclosures, except the 
disclosure of the creditor's identity.
Comments
    In response to the proposal, some commenters suggested removing the 
APR disclosure since consumers find it confusing and do not use it. A 
trade association commenter, a consumer commenter, and a law firm 
commenter argued that the Bureau should use its authority under TILA 
sections 105(a) and (f) to exempt all residential mortgage loans from 
the disclosure requirements of the APR. A GSE, an industry commenter, 
and a consumer advocacy group commenter suggested that the Bureau 
formulate a better explanation of the APR than the one proposed, to 
help consumers understand that the APR reflects not only the interest 
rate but also the related cost of credit. These commenters stated that 
creditors consistently fail to understand and correctly explain the 
difference between the interest rate and the APR. One consumer 
commenter argued that the APR is not useful for an adjustable rate 
loan, and several industry commenters suggested that the Bureau provide 
additional clarity in terms of how to calculate the APR for adjustable 
rate mortgage loans.
    Several industry trade association commenters favored the inclusion 
of APR and disfavored making any changes to how this disclosure is 
calculated. A consumer commenter supported the APR disclosure but 
suggested disclosing it as two separate items, similar to its 
disclosure for credit cards: (1) APR; and (2) all other fees. One 
industry commenter suggested that the finance charge used to calculate 
the APR should be disclosed appropriately to help consumers understand 
what charges are included in the APR.
    Various consumer advocacy groups, civil rights and community 
organizations, and a real estate brokerage commenter argued that the 
decision to place the APR on page three of the Loan Estimate will make 
it less likely that consumers will understand or be able to compare the 
full cost of different mortgages. These commenters believed that 
placing the APR on page three would make it more likely that 
unscrupulous lenders will quote misleadingly low interest rates with 
high hidden fees. These commenters argued that the APR is the best tool 
for selecting the mortgage loan with the lowest cost of credit, and 
that Congress issued a clear and explicit mandate to make the APR one 
of the most conspicuous disclosures. These commenters cited to several 
studies that say that the majority of consumers use the APR to compare 
loans, and urged the Bureau to restore the APR to a prominent place on 
the first page of the Loan Estimate to make the information more 
noticeable to consumers. A group of 12 law professors stated that the 
APR better conveys the cost of a loan than the interest rate because it 
includes all credit-related fees, not just interest, and that the APR 
disclosure should be prominently displayed on the first page of the 
Loan Estimate. According to these commenters, minimizing the APR will 
also have the effect of driving mortgage brokers and lenders to 
increase closing costs and other fees, since consumers will be focused 
on the interest rate, but if consumers learn to shop based on APR, the 
competition will drive down fees.
    A law professor and an associate professor of cognitive psychology 
submitted an ex parte communication that included a study using a form 
similar to the Bureau's proposed Loan Estimate. These professors stated 
that their study found that, with the Bureau's proposed Loan Estimate, 
only 44 percent of their participants correctly identified the lower 
cost loan. By contrast, they noted that 74 percent of their 
participants correctly identified the lower cost loan when they revised 
the form to present the APR prominently on the first page of the form, 
with a price tag symbol and simple explanation of how to use the

[[Page 79980]]

APR. These professors concluded that consumers could use the APR to 
identify lower cost loans, even without understanding it, if the Bureau 
were to place the APR in a simple and more prominent format on the 
first page of the Loan Estimate, along with a statement that lower 
values are better for consumers, and suggested that the Bureau should 
modify the Loan Estimate accordingly.
Final Rule
    For the reasons discussed below, the Bureau is adopting Sec.  
1026.37(l)(2) as proposed. The Bureau notes that the APR is a long-
standing measure designed to provide consumers a way of measuring the 
total cost of credit and comparing loan products. As discussed above, 
consumer testing conducted by the Board and the Bureau, and comments 
received by the Bureau, consistently indicate consumer confusion over 
the APR. When the Bureau added the statement ``this is not your 
interest rate'' to the descriptive explanation of the APR during its 
consumer testing, although confusion was reduced, participants still 
did not understand how to use the APR. See Kleimann Testing Report at 
303-304. Instead, participants used measures they readily understood, 
such as the maximum interest rates, maximum periodic payments, and 
closing cost details to evaluate, compare, and verify loan terms. 
Participants were able to use these measures to evaluate and compare 
loans, making sophisticated trade-offs, often based on rationales 
involving their personal circumstances. In light of these comments 
concerning consumer confusion over the APR and the fact that consumers 
do not appear to use the APR in comparing loan offers, the Bureau is 
exercising its authority under TILA section 105(a) and (f), Dodd-Frank 
Act section 1032(a) and, for residential mortgage loans, Dodd-Frank Act 
section 1405(b), to exempt transactions subject to Sec.  1026.19(e) 
from the requirement of TILA section 122(a) that the annual percentage 
rate disclosure be more conspicuous than other disclosures, except the 
disclosure of the creditor's identity.
    The Bureau believes that the exemption will enhance consumer 
understanding by separating the APR disclosure from the interest rate 
disclosure, which could prevent consumer confusion over the two rates 
and reduce the possibility of information overload for consumers 
attempting to compare loan terms, consistent with the purposes of TILA. 
The Bureau believes that grouping the APR with the ``In 5 Years'' and 
Total Interest Percentage disclosures will also enhance consumer 
understanding by emphasizing that the APR is a special metric created 
specifically for comparison purposes, which may help consumers compare 
the total costs over the life of the loan. In addition, the purpose of 
the integrated disclosures under TILA section 105(b) and RESPA section 
4(a) is to ``aid the borrower . . . in understanding the transaction by 
utilizing readily understandable language to simplify the technical 
nature of the disclosures.'' The Bureau believes that placing measures 
that are readily understandable to consumers on the first page of the 
Loan Estimate, and complex measures that consumers find confusing on 
latter pages, meets this statutory objective.
    The Bureau has also considered the factors in TILA section 105(f) 
and has determined that an exemption is appropriate under that 
provision. Specifically, the Bureau has determined that the exemption 
is appropriate for all affected borrowers, regardless of their other 
financial arrangements and financial sophistication and the importance 
of the loan to them. Similarly, the Bureau has determined that the 
exemption is appropriate for all affected loans, regardless of the 
amount of the loan and whether the loan is secured by the principal 
residence of the consumer. Furthermore, the Bureau has determined that, 
on balance, the exemption will simplify the credit process without 
undermining the goal of consumer protection or denying important 
benefits to consumers. As discussed above, consumer testing and 
historical research indicate that consumers do not understand the APR 
and do not use it when shopping for a loan. Highlighting the APR on the 
disclosure form contributes to overall consumer confusion and 
information overload, complicates the mortgage lending process, and 
hinders consumers' ability to understand important loan terms.
    As such, the Bureau has determined that the exemption from the 
requirement that the APR be disclosed more conspicuously than other 
disclosures will not undermine the goal of consumer protection but, 
instead, will improve consumer understanding of the loans. For all 
these reasons, the Bureau has determined that the disclosure in a less 
prominent place than is required under TILA section 122(a) will improve 
consumer awareness and understanding of residential mortgage loans. The 
Bureau has also determined that the exemption is in the interest of 
consumers and the public, consistent with Dodd-Frank Act section 
1405(b), and that, consistent with section 1032(a) of the Dodd-Frank 
Act, the exemption would ensure that the features of consumer credit 
transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances.
    Regarding the concern expressed by commenters regarding the 
placement of the APR on the final page of the Loan Estimate and, as 
discussed below, on the final page of the Closing Disclosure, and the 
suggestions that the APR disclosure can be improved through an all-in 
APR, better descriptive language of the APR, or by supplementing the 
APR with other disclosures, the Bureau believes that its disclosure of 
the APR improves upon the current disclosure on the TILA disclosures. 
As noted above, consumer advocacy groups recommended that the APR be 
more prominent than the interest rate on the Loan Estimate and be 
disclosed in a graphic format. In addition, two professors recommended 
that the Bureau place the APR in a simple and more prominent location 
and format on the first page of the Loan Estimate and state that lower 
values are better for consumers, based upon a study they 
conducted.\280\ The Bureau has considered these comments, but based on 
past research showing that consumers are confused by the APR, the 
Board's prior efforts to improve the APR disclosure, and the Bureau's 
testing of various descriptive statements of the APR, described above, 
the Bureau believes that the final rule's approach to the APR will 
provide important benefits to consumers by emphasizing the difference 
between the APR and the contract interest rate. Further, the Bureau's 
Quantitative Study showed that the proposed forms performed better than 
the current forms with

[[Page 79981]]

respect to consumers identifying and comparing APRs. Indeed, at the 
Bureau's Quantitative Study, consumers using the Bureau's integrated 
disclosures performed statistically significantly better than those 
using the early TILA disclosure statement and RESPA GFE at identifying 
the APR. Question 23 of the questionnaire used in the Quantitative 
Study asked the consumer respondents in the study, ``[w]hat is the 
Annual Percentage Rate (APR) for this loan?'' For the consumers using 
the Bureau's integrated disclosures, 79.5 percent gave the correct 
answer to this question, while for consumers using the early TILA 
disclosure statement and RESPA GFE, only 65.7 percent gave the correct 
answer, a difference of 13.8 percentage points, which is statistically 
significant. See Kleimann Quantitative Study Report at 45 and 50-51. 
The Bureau is, however, improving the APR disclosure through a 
descriptive statement that clearly distinguishes the APR from the 
interest rate. The Bureau may also develop supplemental educational 
materials in booklets and its Web site that will further explain how 
the APR differs from the interest rate, how it provides a good way of 
comparing the entire costs of the loan over the entire term, and why 
consumers may want to use both the ``In 5 Years'' and APR figures to 
think about their financial futures.
---------------------------------------------------------------------------

    \280\ The examples that were tested by the professors do not 
appear to be typical of the loans a consumer would be presented with 
in an actual transaction. For example, the scenario involved a 
refinance transaction in which the payoff amounts of the loans being 
satisfied differed by approximately $5,000. In addition, the 
statement placed on the study's prototype disclosures that states 
that a lower APR amount is better may be inaccurate for consumers in 
certain situations. For example, whether a certain makeup of 
interest rate and upfront fees in a transaction would be less 
expensive for a consumer would depend on the facts specific to a 
particular transaction, such as the length of time the new loan 
would be held by the consumer. Debra Stark et al., When is Consumer 
Understanding Necessary to Make Wise Home Loan Decisions? Testing 
Enhanced APR Disclosure And General Financial Literacy (2013), 
available at http://ssrn.com/abstract=2294590 or http://dx.doi.org/10.2139/ssrn.2294590.
---------------------------------------------------------------------------

    As discussed above, several commenters were confused about how to 
calculate the APR for adjustable rate loans. The Bureau is amending 
comment 17(c)(1)-10.ii, as described in the section-by-section analysis 
of Sec.  1026.17(c) above, to clarify that the effect of the multiple 
rates must be reflected in certain of the disclosures required under 
Sec.  1026.37(l), but the Bureau notes that this does not change the 
current underlying methodology for calculating the APR. For additional 
guidance regarding the calculation of the APR for closed-end 
transactions, see the commentary to Sec.  1026.17, as amended by this 
final rule. The Bureau is not adopting suggestions made by other 
commenters such as to disclose the APR as it is disclosed for credit 
cards, to itemize the finance charge, or to use a different 
description. Consumers who participated in the Bureau's consumer 
testing found the APR less confusing with the description the Bureau 
used at its consumer testing which informed consumers that the APR was 
a different figure than the contract interest rate. See Kleimann 
Testing Report at 303-304.
37(l)(3) Total Interest Percentage
The Bureau's Proposal
    The Dodd-Frank Act amended TILA to add new section 128(a)(19), 
which requires that, in the case of a residential mortgage loan, the 
creditor disclose the total amount of interest that the consumer will 
pay over the life of the loan as a percentage of the principal of the 
loan. That section also requires that the disclosure be computed 
assuming the consumer makes each monthly payment in full and on time, 
and does not make any over-payments.
    The Bureau proposed Sec.  1026.37(l)(3) to implement TILA section 
128(a)(19) by requiring creditors to disclose the total interest 
percentage, using that term and the abbreviation ``TIP,'' and requiring 
creditors to disclose the descriptive statement ``The total amount of 
interest that you will pay over the loan term as a percentage of your 
loan amount.'' Proposed Sec.  1026.37(l)(3) also would have provided 
that the ``total interest percentage'' is the total amount of interest 
that the consumer will pay over the life of the loan, expressed as a 
percentage of the principal of the loan. Proposed comments 37(l)(3)-1 
through -3 would have provided further guidance to creditors on the 
calculation of the total interest percentage. Proposed comment 
37(l)(3)-1 would have provided that, when calculating the total 
interest percentage, the creditor assumes that the consumer will make 
each payment in full and on time, and will not make any additional 
payments. Proposed comment 37(l)(3)-2 would have provided that, for 
adjustable rate mortgages, Sec.  1026.37(1)(3) requires that the 
creditor compute the total interest percentage using the fully-indexed 
rate and that, for step-rate mortgages, Sec.  1026.37(l)(3) requires 
that the creditor compute the total interest percentage in accordance 
with Sec.  1026.17(c)(1) and its commentary. Proposed comment 37(l)(3)-
3 would have provided that, for loans that permit negative 
amortization, Sec.  1026.37(l)(3) requires that the creditor compute 
the total interest percentage using the minimum payment amount until 
the consumer must begin making fully amortizing payments under the 
terms of the legal obligation.
    Notwithstanding the proposed modifications, the Bureau was 
concerned that the total interest percentage may not be a useful tool 
for consumers and could create confusion and contribute to information 
overload. In light of these concerns, the Bureau alternatively proposed 
to use its exception and modification authority under TILA section 
105(a) and (f), Dodd-Frank Act section 1032(a), and, for residential 
mortgage loans, Dodd-Frank Act section 1405(b) to exempt transactions 
subject to proposed Sec.  1026.19(e) and (f) from the requirements of 
TILA section 128(a)(19). The Bureau solicited comment on the proposed 
exemption and, alternatively, on whether the Bureau should implement 
the total interest percentage disclosure only in the Closing 
Disclosure.
Comments
    In response to the proposal, industry commenters generally urged 
the Bureau to use its exception authority to remove the disclosure. 
They generally asserted that the disclosure would not be useful to 
consumers, that consumers would be confused by it, and that the 
disclosure would trigger information overload. For these same reasons, 
some commenters suggested that the Bureau should only require the 
disclosure in the Closing Disclosure. A number of commenters 
additionally asserted that the disclosure would alarm consumers when 
they see how much they would be paying in interest. Industry commenters 
further asserted that the disclosure would create compliance burden 
because it would be difficult to calculate and explain. Several 
industry trade association commenters recommended that the Bureau 
provide additional clarification as to the calculation and meaning of 
the Total Interest Percentage disclosure if the Bureau decides to keep 
the disclosure.
    A number of industry commenters observed that the disclosure would 
be inaccurate for any loan paid off before maturity and for adjustable 
rate mortgage loans. They expressed concern that consumers could be 
misled by a potentially inaccurate metric. Several industry trade 
association commenters sought clarification as to whether the 
calculation of this disclosure would use the actual initial interest 
rate or the fully-indexed rate, and whether it assumes that payments 
increase as fast as possible.
    On the one hand, many industry commenters also argued that if the 
Bureau decides to finalize the disclosure, disclosing the total 
interest amount in the form of a number rather than as a percentage 
would be more comprehensible. On the other hand, a number of industry 
commenters suggested that disclosing a number for the total interest 
amount is unnecessary because of the Finance Charge disclosure in the 
Closing Disclosure.
    A consumer commenter strongly favored the Total Interest Percentage 
disclosure and some industry commenters did not object to its

[[Page 79982]]

inclusion. An association of various State regulators and a joint 
letter from several consumer advocacy groups did not recommend that the 
Bureau remove the disclosure, but expressed concern that the disclosure 
could mislead consumers about the cost of credit because the 
calculation would not include closing costs or prepaid finance charges. 
Two industry trade associations representing consumer financial 
services providers recommended that prepaid interest be excluded from 
the calculation.
    Lastly, a national trade association representing developers of 
timeshare and other similar fractional interest real estate products 
stated that the Bureau should clarify that the proposed disclosure 
would not apply to timeshare lenders. The trade association commenter 
asserted that it believes that TILA section 103(cc)(5), as added by 
section 1401 of the Dodd-Frank Act, exempted timeshare lenders from 
compliance with, among other things, TILA section 128(a)(19) and any 
regulations promulgated thereunder.
Final Rule
    For the reasons discussed below, the Bureau is adopting Sec.  
1026.37(l)(3) and comments 37(l)(3)-1 as proposed. As discussed above, 
some commenters generally urged the Bureau to use its exception 
authority to remove the disclosure and asserted that the disclosure 
would not be useful to consumers, that consumers would be confused by 
it, and that the disclosure would trigger information overload. Some 
commenters also argued that disclosing the total interest amount in the 
form of a number rather than as a percentage would be more 
comprehensible. The Bureau's consumer testing, however, indicated that 
consumer participants generally understood the basic concept of the 
disclosure, even though they did not understand its more technical 
aspects. Although some consumers did not understand the disclosure at 
all and questioned why it was included, the Kleimann Testing Report 
concluded that participants understood the basic concept of total 
interest as a percentage of principal, and that most participants used 
the disclosure to achieve a more complete understanding of the loan. 
Kleimann Testing Report at 299-300. Some commenters asserted that the 
disclosure would alarm consumers when they see how much they would be 
paying in interest. However, the Kleimann Testing Report stated that 
most participants used the TIP to compare loans in the Loan Estimate, 
choosing the lower percentage as the better loan, and that they used 
the TIP as a measure of what they would pay in interest in the Closing 
Disclosure. The Kleimann Testing Report further indicated that 
participants expressed surprise upon seeing the TIP and realizing how 
much interest they would pay for their mortgage loans and appreciated 
the disclosure for this effect. See Kleimann Testing Report at 299-300. 
Concerns were also raised during the Bureau's Small Business Review 
Panel,\281\ by industry in feedback provided in response to the Small 
Business Review Panel Outline, in feedback received through the 
Bureau's Web site during the Know Before You Owe initiative, and in 
comments received that the TIP could be difficult to calculate and 
explain to consumers, and would not likely be helpful to consumers. 
However, several industry participants in the Bureau's consumer testing 
thought it would be helpful to consumers. See Kleimann Testing Report 
at 299-300. In addition, the Bureau's consumer testing indicated that 
consumers generally understood the disclosure. See Kleimann Testing 
Report at 299-300.
---------------------------------------------------------------------------

    \281\ Final Report of the Small Business Review Panel on CFPB's 
Proposals Under Consideration for Integration of TILA and RESPA 
Mortgage Disclosure Requirements (Apr. 23, 2012), available at 
http://files.consumerfinance.gov/f/201207_cfpb_report_tila-respa-sbrefa-feedback.pdf.
---------------------------------------------------------------------------

    As discussed above, several industry trade association commenters 
recommended that the Bureau provide additional clarification as to the 
calculation and meaning of the TIP disclosure. In light of the Bureau's 
consumer testing of the TIP disclosure and the concerns about 
consumers' ability to understand the disclosure, the Bureau is 
requiring creditors to disclose the descriptive statement, ``The total 
amount of interest that you will pay over the loan term as a percentage 
of your loan amount.'' The Bureau adopts this pursuant to its authority 
under TILA section 105(a), Dodd-Frank Act section 1032(a), and, for 
residential mortgage loans, Dodd-Frank Act section 1405(b). Based on 
consumer testing, the Bureau believes that consumer understanding of 
the TIP disclosure may be enhanced through the descriptive statement of 
the TIP, consistent with the purposes of TILA, and that the descriptive 
statement is in the interest of consumers and the public, consistent 
with section 1405(b) of the Dodd-Frank Act. For these reasons, the 
Bureau also believes that the disclosure of the descriptive statement 
regarding the TIP may ensure that the features of consumer credit 
transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances, consistent 
with section 1032(a) of the Dodd-Frank Act.
    In response to the comments received that raised concerns about 
calculations for adjustable rate mortgage loans, the Bureau is revising 
proposed comment 37(l)(3)-2 to provide further guidance to creditors on 
the calculation of the total interest percentage for adjustable rate 
mortgage loans, clarifying that for such transactions, the total 
interest percentage is calculated in accordance with comment 17(c)(1)-
10. In particular, for an Adjustable Rate product under Sec.  
1026.37(a)(10)(i)(A), when creditors use an initial interest rate that 
is not calculated using the index or formula for later rate 
adjustments, the disclosure should reflect a composite annual 
percentage rate based on the initial rate for as long as it is charged 
and, for the remainder of the term, the rate that would have been 
applied using the index or formula at the time of consummation. For 
purposes of Sec.  1026.37(1)(3), comment 37(l)(3)-2 additionally 
clarifies that for Step Rate products under Sec.  1026.37(a)(10)(i)(B), 
the creditor computes the total interest percentage in accordance with 
Sec.  1026.17(c)(1) and its commentary. The Bureau is also amending 
proposed comment 17(c)(1)-10.ii to clarify that the effect of the 
multiple rates must be reflected in certain of the disclosures required 
under Sec.  1026.37(l), including the TIP, as described in the section-
by-section analysis of Sec.  1026.17(c). The Bureau is revising 
proposed comment 37(l)(3)-3 to refer to loans that have negative 
amortization loan features under Sec.  1026.37(a)(10)(ii)(A). The 
Bureau believes that referring to the product types and features under 
Sec.  1026.37(a)(10) in comments 37(l)(3)-2 and -3 will facilitate 
compliance.
    In response to several comments received that sought clarification 
on whether prepaid interest is included, the Bureau notes that prepaid 
interest is included in the TIP calculation. Section 1026.37(l)(3) 
requires that the calculation include the total amount of interest that 
the consumer will pay over the life of the loan, which includes prepaid 
interest.
    With respect to the argument that the disclosure should not apply 
to timeshare lenders, the general section-by-section analysis of Sec.  
1026.19 provides a more detailed discussion of the Bureau's decision to 
expand the scope of some of the disclosure requirements set forth in 
TILA, as

[[Page 79983]]

amended by the Dodd-Frank Act. In addition, the Bureau believes that 
the disclosure of the total interest percentage would be just as useful 
to a consumer in a credit transaction secured by a consumer's interest 
in a timeshare plan as to a consumer in a credit transaction secured by 
an interest in real property or real property with a dwelling.
    Accordingly, the Bureau has determined that the total interest 
percentage is a useful tool for consumers and has determined not to use 
its exception and modification authority under TILA section 105(a) and 
(f), Dodd-Frank Act section 1032(a), and, for residential mortgage 
loans, Dodd-Frank Act section 1405(b) to exempt transactions subject to 
Sec.  1026.19(e) and (f) from the requirements of TILA section 
128(a)(19). The Bureau also believes that the TIP disclosure on the 
Loan Estimate will help ensure that the features of the mortgage 
transaction are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to understand the costs, 
benefits, and risks associated with the mortgage transaction, in light 
of the facts and circumstances, will improve consumer awareness and 
understanding of residential mortgage loans, and is in the interest of 
consumers and the public. Based on these considerations, the results of 
the Bureau's consumer testing, and the analysis discussed elsewhere in 
this final rule, the Bureau believes that an exemption is not 
appropriate.
Other Statutory Disclosures
    As discussed above, the research regarding consumer comprehension 
and behavior and the results of the Board's and the Bureau's consumer 
testing suggest that an effective disclosure regime minimizes the risk 
of consumer distraction and information overload by providing only 
information that will assist most consumers. The Bureau therefore 
carefully evaluated each statutory element required under TILA for its 
usefulness to consumers and others at early stages of the loan process, 
during the real estate closing process, and as general reference 
information over the life of the loan. Based on that analysis, the 
Bureau proposed to use its authority under TILA section 105(a) and (f), 
Dodd-Frank Act section 1032(a), and, for residential mortgage loans, 
Dodd-Frank Act section 1405(b), to except from and modify the timing 
requirements for certain disclosures required by TILA section 128. 
Specifically, those disclosures are: the amount financed (TILA section 
128(a)(2)), the finance charge (TILA section 128(a)(3)), a statement 
that the creditor is taking a security interest in the consumer's 
property (TILA section 128(a)(9)), a statement that the consumer should 
refer to the appropriate contract document for information about his or 
her loan (TILA section 128(a)(12)), a statement regarding certain tax 
implications (TILA section 128(a)(15)), and the creditor's cost of 
funds (TILA section 128(a)(17)).
    In response to the proposal, one industry commenter suggested that 
the Bureau should include the Total of Payments, Finance Charge, and 
Amount Financed disclosures on the Loan Estimate in order to more 
accurately reflect the loan's total cost and create more consistency 
between the Loan Estimate and Closing Disclosure. The Bureau has 
analyzed the feedback provided and has determined that the exemptions 
discussed above will carry out the purposes of TILA, consistent with 
TILA section 105(a), by avoiding consumer confusion and information 
overload, thereby promoting the informed use of credit, as discussed 
above. For these same reasons, the exemptions will help ensure that the 
features of the mortgage transaction are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
mortgage transaction, consistent with Dodd-Frank Act section 1032(a), 
and will improve consumer awareness and understanding of residential 
mortgage loans and are in the interest of consumers and the public, 
consistent with Dodd-Frank Act section 1405(b).
    The Bureau has considered the factors in TILA section 105(f) and 
has determined that, for the reasons discussed above, an exemption is 
appropriate under that provision. Specifically, the Bureau has 
determined that the exemption is appropriate for all affected 
borrowers, regardless of their other financial arrangements and 
financial sophistication and the importance of the loan to them. 
Similarly, the Bureau has determined that the exemption is appropriate 
for all affected loans, regardless of the amount of the loan and 
whether the loan is secured by the principal residence of the consumer. 
Furthermore, the Bureau has determined that, on balance, the exemption 
will simplify the credit process without undermining the goal of 
consumer protection or denying important benefits to consumers. Based 
on these considerations, the results of the Bureau's consumer testing, 
and the analysis discussed elsewhere in this final rule, the Bureau has 
determined that the exemptions are appropriate. The exclusion of the 
finance charge and the amount financed from the Loan Estimate is 
discussed at length below.
    Finance charge. TILA section 128(a)(3) and (8) requires creditors 
to disclose the ``finance charge'' and a brief descriptive statement of 
the finance charge. 15 U.S.C. 1638(a)(3), (a)(8). For transactions 
subject to RESPA, TILA section 128(b)(2)(A) requires creditors to 
provide this disclosure not later than three business days after the 
creditor receives the consumer's application, and at least seven 
business days before consummation. 15 U.S.C. 1638(b)(2)(A). Current 
Sec.  1026.18(d) implements TILA section 128(a)(3) and (8) by requiring 
creditors to disclose the ``finance charge,'' using that term, and a 
brief description such as ``the dollar amount the credit will cost 
you.'' For transactions subject to RESPA, current Sec.  1026.19(a) 
requires creditors to provide the finance charge disclosure not later 
than the third business day after the creditor receives the consumer's 
application.
    Federal agency research has long recognized consumer confusion over 
the finance charge. The Board-HUD Joint Report found that TILA 
disclosures fall short of meeting their goal of informing consumers 
about the cost of credit, in part because of consumer confusion over 
the finance charge. Board-HUD Joint Report at III. Evidence of consumer 
confusion over the finance charge was echoed in the Board's 2009 
Closed-End Proposal. 74 FR 43307-08 (Oct. 21, 2009). The Board's 
consumer testing indicates that consumers often fail to understand that 
the finance charge contains both interest and fees,\282\ and that 
consumers place very little value on the finance charge when making 
decisions regarding their loan.\283\ The report stated that ``[testing] 
participants . . . generally disregarded the finance charge when 
reading their TILA statements.'' \284\ In addition, FTC staff conducted 
a study evaluating prototype mortgage disclosures in comparison to 
then-current TILA and REPSA disclosures, which indicated that consumers 
were confused by the finance

[[Page 79984]]

charge disclosure on the TILA disclosures.\285\
---------------------------------------------------------------------------

    \282\ Macro 2009 Closed-End Report at 11, 41 (stating that, in 
Round 8 of the testing, ``[m]ost [participants] thought the finance 
charges were equal to the amount of interest that the borrower would 
pay over time; only a few understood the finance charges shown on 
the form included fees as well as interest'').
    \283\ For example, only one of the nine participants in one 
round of the Board's testing found the finance charge useful. Id. at 
35. In another round, most participants said that they would not use 
the finance charge in their decision-making. Id. at 28.
    \284\ Id. at 41.
    \285\ James Lacko & Janis Pappalardo, Fed. Trade Comm'n Bureau 
Econ. Staff Report, Improving Consumer Mortgage Disclosures: An 
Empirical Assessment of Current and Prototype Disclosure Forms at 
30, 37 (2007) available at http://www.ftc.gov/os/2007/06/P025505MortgageDisclosureReport.pdf (finding that respondents in the 
study were confused by the finance charge disclosure).
---------------------------------------------------------------------------

    For these reasons, the Bureau is exercising its authority under 
TILA section 105(a) and (f) and Dodd-Frank sections 1032(a) and, for 
residential mortgage loans, 1405(b), to except transactions subject to 
proposed Sec.  1026.19(e) from the requirements of TILA section 
128(a)(3) and (8) as it applies to the Loan Estimate provided to 
consumers within three business days of application. As discussed 
above, the Bureau has determined that the exclusion of the finance 
charge disclosure from the Loan Estimate effectuates the purposes of 
TILA by avoiding consumer confusion and information overload 
historically associated with the finance charge disclosure, thereby 
improving the informed use of credit.
    The Bureau has considered the factors in TILA section 105(f) and 
has determined that, for the reasons discussed above, an exemption is 
appropriate under that provision. Specifically, the Bureau has 
determined that the exemption is appropriate for all affected 
borrowers, regardless of their other financial arrangements and 
financial sophistication and the importance of the loan to them. 
Similarly, the Bureau has determined that the exemption is appropriate 
for all affected loans, regardless of the amount of the loan and 
whether the loan is secured by the principal residence of the consumer. 
Furthermore, the Bureau has determined that, on balance, the exemption 
will simplify the credit process without undermining the goal of 
consumer protection or denying important benefits to consumers. Based 
on these considerations, the results of the Bureau's consumer testing, 
and the analysis discussed above, the Bureau has determined that an 
exemption is appropriate.
    Although one industry commenter believed the finance charge should 
be included on the Loan Estimate, the Bureau does not believe that 
disclosure of the finance charge on the Loan Estimate provides a 
meaningful benefit to consumers in the form of useful information or 
protection. Rather, disclosure of the finance charge to consumers early 
in the lending process actually complicates and hinders the process of 
mortgage lending because consumers do not understand the disclosure. 
Removing the finance charge disclosure from the Loan Estimate that 
consumers receive early in the lending process may assure meaningful 
disclosure of credit terms, facilitate consumer comparison of credit 
terms, and improve the informed use of credit by avoiding information 
overload and improving consumer understanding of loan terms, consistent 
with the purposes of TILA and with section 1405(b) of the Dodd-Frank 
Act. As consumer testing indicates that consumers generally do not use 
the finance charge when shopping for a loan, the absence of the finance 
charge from the Loan Estimate should not detract from consumers' 
understanding of their credit terms but, instead, will permit consumers 
to focus on other important terms. In addition, consistent with Dodd-
Frank Act section 1032(a), removal of the finance charge from the Loan 
Estimate would help ensure that the features of consumer credit 
transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances.
    The Bureau recognizes that creditors, consumer advocates, and State 
and Federal supervisory agencies use the finance charge when 
calculating or verifying the calculation of the APR, determining 
compliance with certain price thresholds, and for a range of other 
purposes, including the right of rescission pursuant to TILA section 
125. 15 U.S.C. 1635. Accordingly, to preserve the finance charge 
disclosure for these purposes, Sec.  1026.38(o)(2) requires creditors 
to disclose the finance charge on the Closing Disclosure provided to 
consumers at least three days prior to consummation. Although concerns 
regarding consumer distraction and information overload persist at the 
stage of the transaction where the consumer receives the Closing 
Disclosure, the Bureau believes that disclosing the finance charge with 
other loan calculations on the final page of the Closing Disclosure as 
a general reference for the consumer after closing will mitigate these 
concerns. In addition, though the finance charge is not disclosed on 
the Loan Estimate, creditors must, in order to comply with the record 
retention requirements in Sec.  1026.25, document the finance charge 
used to calculate the APR disclosed on the Loan Estimate. As discussed 
above, the Bureau is adopting conforming amendments to Sec.  1026.22 to 
reflect the accuracy standards applicable to the finance charge 
disclosed on the Closing Disclosure under Sec.  1026.38(o)(2). The 
Bureau is also adopting conforming amendments to Sec.  1026.22 to 
reflect the accuracy standards applicable to the finance charge used in 
the APR calculation for the Loan Estimate under Sec.  1026.37(l)(2).
    Amount financed. TILA section 128(a)(2) and (8) requires creditors 
to disclose the ``amount financed,'' using that term, and a brief 
descriptive statement of the amount financed. 15 U.S.C. 1638(a)(2), 
(a)(8). Current Sec.  1026.18(b) implements this requirement and 
requires creditors to disclose the amount financed, using that term, 
together with a brief description that the amount financed represents 
the amount of credit of which the consumer has actual use. Like the 
finance charge disclosure, for transactions subject to RESPA, TILA 
section 128(b)(2)(A) requires that creditors provide a good faith 
estimate of this disclosure not later than three business days after 
the creditor receives the consumer's application, and at least seven 
business days before consummation. 15 U.S.C. 1638(b)(2)(A). This 
requirement is implemented in current Sec.  1026.19(a).
    Like the finance charge disclosure, research has indicated that the 
amount financed disclosure appears to confuse consumers. The Board-HUD 
Joint Report recommended removing the amount financed disclosure from 
consumer disclosures altogether because it ``is probably not a useful 
disclosure for mortgage lending.'' \286\ The Board-HUD Joint Report 
found that the primary use of the amount financed disclosure is to help 
supervisory agencies confirm APR calculations, and is not a useful 
shopping tool for consumers.\287\ The Board's consumer testing in 
connection with the 2009 Closed-End Proposal also indicated consumer 
confusion about the amount financed disclosure. Some testing 
participants incorrectly assumed that the amount financed disclosure 
was their loan amount or the sale price of the home.\288\ Based on this 
testing, the

[[Page 79985]]

Board concluded that the amount financed disclosure detracted from, 
rather than enhanced, consumers' understanding of other disclosures 
\289\ and that consumers ``would not consider the amount financed when 
shopping for a mortgage or evaluating competing loan offers.'' \290\ 
The Board also found that ``requiring creditors to disclose the amount 
financed in the loan summary with other key loan terms would add 
unnecessary complexity and result in `information overload.' '' \291\
---------------------------------------------------------------------------

    \286\ Board-HUD Joint Report at 16.
    \287\ Id. at 17.
    \288\ Macro 2009 Closed-End Report at v. For example, in Round 8 
of testing, participants were ``confused about the difference 
between the `loan amount' and the `amount financed.' '' Id. at 26. 
In Round 9, participants gave a variety of incorrect explanations of 
the term, including that it was ``how much escrow they would have,'' 
the amount they would have to pay back, or the amount that they 
borrowed. Id. at 35. In both of these rounds, some participants 
believed the amount financed disclosure was equal to the amount of 
money they would be borrowing. Id. at 40. In Round 11, the amount 
financed disclosure was moved to the second page, under the heading 
``Total Payments'' in the ``More Information About Your Payments'' 
section. Id. at 51. As in previous rounds, no participant was able 
to explain the meaning of the amount financed disclosure. Id. at 55. 
In Round 12, with the amount financed disclosure in the same place 
on the second page, two participants incorrectly believed they were 
borrowing the ``amount financed.'' Id. at 55. In the final round of 
testing, none of the participants understood the meaning of the 
amount financed disclosure. Id. at 72.
    \289\ 74 FR 43232, 43308 (Aug. 26, 2009). For example, ``sample 
disclosures were used to try to explain that the difference between 
the loan amount and amount financed is attributable to prepaid 
finance charges, but this explanation did not appear to improve 
consumer comprehension.'' Id.
    \290\ Id.
    \291\ Id.
---------------------------------------------------------------------------

    For these reasons, the Bureau is exercising its authority under 
TILA section 105(a) and (f), Dodd-Frank section 1032(a), and, for 
residential mortgage loans, Dodd-Frank Act section 1405(b), to modify 
and except transactions subject to proposed Sec.  1026.19(e) from the 
requirements of TILA section 128(a)(2) and (8) as it applies to the 
Loan Estimate provided to consumers within three business days of 
application. As discussed above, the Bureau has determined that the 
exclusion of the amount financed disclosure from the Loan Estimate 
effectuates the purposes of TILA by avoiding consumer confusion and 
information overload historically associated with the disclosure, 
thereby improving the informed use of credit. In addition, the Bureau 
has considered the factors in TILA section 105(f) and has determined 
that, for the reasons discussed above, an exception is appropriate 
under that provision. Specifically, the Bureau has determined that the 
exemption is appropriate for all affected borrowers, regardless of 
their other financial arrangements and financial sophistication and the 
importance of the loan to them. Similarly, the Bureau has determined 
that the exemption is appropriate for all affected loans, regardless of 
the amount of the loan and whether the loan is secured by the principal 
residence of the consumer. Furthermore, the Bureau has determined that, 
on balance, the exemption will simplify the credit process without 
undermining the goal of consumer protection or denying important 
benefits to consumers. Based on these considerations, the findings of 
the Board-HUD Joint Report, and the analysis discussed above, the 
Bureau has determined that an exemption is appropriate.
    As discussed above, one industry commenter suggested that the 
Bureau should add the amount financed disclosure to the Loan Estimate. 
The Bureau does not believe, however, that disclosure of the amount 
financed on the Loan Estimate provides a meaningful benefit to 
consumers in the form of useful information or protection. Rather, the 
Bureau believes that disclosure of the amount financed to consumers 
early in the lending process actually complicates and hinders the 
process of mortgage lending because consumers do not understand the 
disclosure. Removing the amount financed from the Loan Estimate may 
improve the informed use of credit by avoiding information overload and 
improving consumer understanding of loan terms, consistent with the 
purposes of TILA and will be in the interest of consumers and the 
public, consistent with section 1405(b) of the Dodd-Frank Act. Enhanced 
consumer understanding of mortgage transactions is also in the interest 
of consumers and the public. In addition, consistent with Dodd-Frank 
Act section 1032(a), removal of the amount financed from the Loan 
Estimate may help ensure that the features of consumer credit 
transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances.
    However, the Bureau recognizes that, like the finance charge, the 
amount financed is commonly used by creditors and supervisory agencies 
for compliance purposes, as well as by consumer advocates. Therefore, 
under the final rule, creditors would be required to disclose the 
amount financed in the Closing Disclosure provided to consumers at 
least three business days prior to consummation. Like the finance 
charge, the Bureau believes that disclosing the amount financed with 
other loan calculations on the final page of the Closing Disclosure as 
a general reference for the consumer after closing will mitigate 
concerns about consumer distraction and information overload at the 
Closing Disclosure stage.
37(m) Other Considerations
    Under Sec.  1026.37(m), the Bureau proposed to require creditors to 
disclose certain information pertaining to: (1) The consumer's right to 
receive copies of appraisals; (2) future assumability of the loan; (3) 
at the creditor's option, homeowner's insurance requirements; (4) the 
creditor's late payment policy; (5) loan refinancing; (6) loan 
servicing, and (7) in refinance transactions, the consumer's liability 
for deficiency after foreclosure. This information would have been 
provided under the master heading ``Additional Information About This 
Loan'' required by Sec.  1026.37(k) and under the heading ``Other 
Considerations.''
    The Bureau stated in the proposal that consumers already receive 
most of these disclosures at or after application or prior to 
consummation, and that by incorporating all of these disclosures into 
the Loan Estimate, the proposed rule would reduce the number of 
separate disclosures that consumers receive. The Bureau stated that 
under the proposed rule, consumers would receive these disclosures in a 
single, integrated document, which would reduce the potential for 
information overload, promote the informed use of credit by the 
consumer, and facilitate compliance by industry. The Bureau did not 
receive any comments on proposed Sec.  1026.37(m) and is adopting it as 
proposed.
37(m)(1) Appraisal
    Prior to the Dodd-Frank Act, ECOA section 701(e) required creditors 
to provide to applicants, upon written request, a copy of the appraisal 
report used in connection with the consumer's application for a loan 
secured by a lien on residential real property. Section 1474 of the 
Dodd-Frank Act amended ECOA section 701(e) to remove the provision 
requiring consumers to request a copy of their appraisal. That section 
now requires the creditor to provide the consumer with a copy of any 
written appraisal or valuation developed in connection with an 
application for a loan that is or will be secured by a first lien on a 
dwelling promptly upon completion, and no later than three days prior 
to the closing of the loan, even if the creditor denies the consumer's 
application or the application is incomplete or withdrawn. 15 U.S.C. 
1691(e)(1). Under ECOA section 701(e)(5), the creditor must notify the 
consumer in writing at the time of application of the right to receive 
a copy of any appraisal or valuation. 15 U.S.C. 1691(e)(5).

[[Page 79986]]

    In addition, section 1471(a) of the Dodd-Frank Act added to TILA 
new appraisal requirements for higher-risk mortgages. Specifically, new 
TILA section 129H(c) requires creditors to provide consumers, at least 
three days prior to closing, a copy of any appraisal prepared in 
connection with a higher-risk mortgage. 15 U.S.C. 1639h(c). Section 
1471(f) of the Dodd-Frank Act defines the term ``higher-risk mortgage'' 
generally as a residential mortgage loan, other than a reverse 
mortgage, that is secured by a principal dwelling with an APR that 
exceeds the average prime offer rate for a comparable transaction by a 
specified percentage. 15 U.S.C. 1639h(f). Section 1471 also allows for 
interagency rules to adopt exemptions for transactions, which would not 
be subject to the implementing regulations. New TILA section 129H(d) 
contains a disclosure requirement that creditors must provide 
consumers, at the time of the initial mortgage application, a statement 
that any appraisal prepared for the mortgage is for the creditor's sole 
use and that the consumer may choose to have a separate appraisal 
conducted at his or her own expense. 15 U.S.C. 1639h(d).
    The Bureau proposed to use its authority under TILA section 105(a) 
and Dodd-Frank Act section 1032(a) to include on the Loan Estimate 
disclosure of the new requirements regarding the consumer's right to 
appraisal copies for loans subject to ECOA section 701(e)(5) or TILA 
section 129H(c) and (d). In the proposal, the Bureau stated its intent 
to harmonize this proposal with its rulemaking implementing amended 
ECOA section 701(e) and the interagency rulemaking implementing new 
TILA section 129H(c) and (d), so that creditors may satisfy the ECOA 
section 701(e)(5) and TILA section 129H requirements in a single 
disclosure. The Bureau stated its belief in the proposal that including 
these appraisal disclosures on the Loan Estimate is consistent with the 
purposes of TILA and would reduce burden on industry. The Bureau stated 
its belief that because consumers would receive one integrated 
disclosure rather than a separate appraisal disclosure in addition to 
the Loan Estimate they would receive after application, the proposal 
would facilitate compliance for creditors and promote the informed use 
of credit by consumers, and ensure effective disclosure to consumers, 
consistent with the purposes of TILA section 105(a).
    In addition, the Bureau also stated its belief that incorporating 
the appraisal disclosures into the Loan Estimate in a way that is 
consistent with the presentation of other disclosures would ensure that 
the features of the transaction are fully, accurately, and effectively 
disclosed to consumers in a manner that permits consumers to understand 
the costs, benefits, and risks associated with the mortgage 
transaction, in light of the facts and circumstances, consistent with 
Dodd-Frank Act section 1032(a). Since the proposal, the Bureau has 
issued the 2013 ECOA Appraisals Final Rule, 78 FR 7215 (Jan. 31, 2013) 
to implement ECOA section 701(e) as amended by the Dodd-Frank Act. In 
addition, the Bureau, the Department of the Treasury, the Board, the 
National Credit Union Administration, the Office of the Comptroller of 
the Currency, and the Federal Housing Finance Agency have issued the 
2013 Interagency Appraisals Final Rule, 78 FR 10367 (Feb. 13, 2013), to 
implement new TILA section 129H(c) and (d). The disclosure proposed in 
Sec.  1026.37(m)(1) is generally consistent with the disclosure 
standards adopted in these two rulemakings and would have satisfied the 
requirements of them both.
    Proposed Sec.  1026.37(m)(1) would have applied only to closed-end 
credit transactions subject to proposed Sec.  1026.19(e) and ECOA 
section 701(e) or TILA section 129H, as implemented in Regulation B, 12 
CFR part 1002, and Regulation Z, respectively. For such transactions, 
proposed Sec.  1026.37(m)(1) would have required the disclosure under 
the label ``Appraisal.'' Proposed Sec.  1026.37(m)(1)(i) would have 
required the disclosure to state that the creditor may order an 
appraisal to determine the value of the property that is the subject of 
the transaction and may charge the consumer the cost for any such 
appraisal. Proposed Sec.  1026.37(m)(1)(ii) would have required the 
disclosure to state that the creditor will promptly provide the 
consumer a copy of any completed appraisal, even if the transaction is 
not consummated. Finally, proposed Sec.  1026.37(m)(1)(iii) would have 
required the disclosure to state that the consumer has the right to 
order an additional appraisal of the property for the consumer's own 
use. Proposed comment 37(m)(1)-1 would have clarified that if a 
transaction subject to proposed Sec.  1026.19(e) is not also subject to 
either ECOA section 701(e) or TILA section 129H, as implemented in 
Regulations B and Z, respectively, the disclosure required by proposed 
Sec.  1026.37(m)(1) may be omitted from the Loan Estimate.
    A large bank criticized proposed Sec.  1026.37(m)(1)(i) because 
section 1471(a) of the Dodd Frank Act requires that a disclosure that 
``the appraisal prepared for the mortgage is for the sole use of the 
creditor, and the applicant may choose to have a separate appraisal 
conducted at the expense of the applicant'' and proposed Sec.  
1026.37(m)(1)(i) leaves out this critical first clause. The commenter 
stated that the omission could be a source of consumer confusion. A 
regional trade association representing banks commented that the 
required disclosure proposed in Sec.  1026.37(m)(1)(ii) should make 
clear that the creditor may not have an appraisal to provide if the 
transaction is not consummated. A regional trade association 
representing banks expressed concern that the statement required by 
Sec.  1026.37(m)(1)(iii) may cause consumers to believe that the 
creditor would consider the appraisal ordered by the consumer which the 
creditor may not do pursuant to other Federal laws and regulations. The 
commenter stated that the omission could be a source of consumer 
confusion.
    With respect to the comment that the disclosure required by 
proposed Sec.  1026.37(m)(1)(i) leaves out the first clause of section 
1471(a) of the Dodd Frank Act stating that the appraisal prepared for 
the mortgage is for the sole use of the creditor, the Bureau believes 
that the statement required by Sec.  1026.37(m)(1)(i) effectively 
informs the consumer that the appraisal is for the creditor. The Bureau 
has designed the statement to use plain language to convey this concept 
to consumers. Accordingly, the statement required by proposed Sec.  
1026.37(m)(1)(i), as illustrated by proposed form H-24 of appendix H to 
Regulation Z, states ``we may order an appraisal to determine the 
property's value and charge you for this appraisal.'' The Bureau does 
not believe that adding the term ``sole use of the creditor'' would 
make the disclosure more effective, and on the contrary, because of its 
technical nature, may decrease the level of engagement of consumers 
with the statement. The Bureau has conducted extensive consumer testing 
of prototype disclosure statements for these statutory appraisal 
notices. The proposed statement performed better than prototype 
statements that included language that directly addressed this clause. 
The Bureau tested a clause with consumers that stated, ``any appraisal 
we order for this loan is for our use only, even if we charge you the 
cost.'' This clause caused consumer confusion regarding the right to 
obtain a copy of the appraisal, because consumers believed this 
statement meant they would not be able to see the

[[Page 79987]]

appraisal.\292\ Accordingly, the Bureau has determined the proposed 
statement more effectively conveyed the right to a copy of the 
appraisal and the creditor's use of the appraisal ordered by the 
creditor. Moreover, changing the disclosure proposed in Sec.  
1026.37(m)(1)(i) would render it inconsistent with the disclosures 
adopted in the 2013 ECOA Appraisals Final Rule and the 2013 Interagency 
Appraisals Final Rule and undermine the intent of the proposal to 
harmonize the appraisal disclosure in the integrated disclosures with 
the Bureau's other rulemakings.
---------------------------------------------------------------------------

    \292\ See Kleimann Testing Report at 254-256.
---------------------------------------------------------------------------

    With respect to the comment that the statement under Sec.  
1026.37(m)(1)(ii) should make clearer that the creditor may not have an 
appraisal for the transaction, the Bureau notes that the disclosure, as 
illustrated on form H-24, states that the creditor ``may'' order an 
appraisal. The Bureau believes that this conditional language is 
sufficient to put a consumer on notice that an appraisal may not be 
ordered in every instance (such as where a transaction is not 
completed) and thus, the consumer may not receive a copy of such 
appraisal.
    Regarding the comment that consumers may believe that the creditor 
would consider the appraisal ordered by the consumer, the Bureau 
believes that the statement effectively conveys that the appraisal 
ordered by a consumer is for the consumer's use. The proposed 
statement, as illustrated by form H-24, states ``you can pay for an 
additional appraisal for your own use at your own cost.'' Based on the 
Bureau's consumer testing, the Bureau believes the statement is 
understandable by consumers. In addition, for reasons discussed more 
fully in the 2013 ECOA Appraisals Rule, the Bureau does not believe 
that the concise, tested language in the sample disclosure should be 
expanded to discuss other Federal laws and regulations, which are 
complex and subject to varying interpretations. 78 FR 7215, 7228-9 
(Jan. 31, 2013). For the aforementioned reasons, the Bureau is not 
revising the proposed appraisal notice pursuant to the comments.
    However, for transactions subject only to the Interagency 
Appraisals Final Rule and not the ECOA Appraisals rule, the creditor is 
permitted to remove the word ``promptly'' from the disclosure pursuant 
to Sec.  1026.35(c)(5)(i). 78 FR 10367, 10410-10412 (Feb. 13, 2013). 
Accordingly, to conform the appraisal notice in the integrated 
disclosures to these final rules, the Bureau is revising comment 
37(m)(1)-1 to provide that for transactions subject to TILA section 
129H, but not ECOA section 1691(e), the creditor may delete the word 
promptly from the disclosure required by Sec.  1026.37(m)(1)(ii).
    In addition, since the proposal was issued, the regulations 
implementing the Dodd-Frank Act's newly required appraisal notices have 
both been finalized. Neither of these regulations limits the 
requirement for the creditor to provide appraisals to ``completed'' 
appraisals. Indeed, the 2013 ECOA Appraisals Rule specifically states 
that a rule requiring only ``final'' versions to be provided would not 
be consistent with the statutory requirement, because it would allow 
creditors to withhold a valuation that they determine is a draft or 
preliminary even if they never receive a later version. 78 FR 7215, 
7224 (Jan. 31, 2013) (citing comment 1002.14(a)(1)-7). Accordingly, the 
Bureau is revising Sec.  1026.37(m)(1)(ii) to delete the word 
``completed.'' The statement illustrated by proposed form H-24 of 
appendix to Regulation Z would not have contained the word completed, 
and thus, is not being revised as such.
    For the aforementioned reasons, the Bureau is adopting Sec.  
1026.37(m)(1)(i) and (iii) as proposed, based on the authority stated 
in the proposal. The Bureau is revising Sec.  1026.37(m)(1)(ii) to 
delete the word ``completed,'' to conform to the 2013 ECOA Appraisals 
Rule and the 2013 Interagency Appraisals Final Rule. The Bureau is also 
revising comment 37(m)(1)-1 as described above, to clarify that a 
creditor may delete the word ``promptly'' from the statement 
illustrated by form H-24 of appendix H to Regulation Z if it is subject 
to TILA section 129H, but not ECOA section 701(e). The Bureau is also 
adopting new comment 37(m)(1)-2 to clarify that the disclosure required 
by Sec.  1026.37(m)(1) is as illustrated by form H-24, which contains 
the statement that the creditor will provide an appraisal even if the 
``loan does not close.'' The Bureau is further revising comment 
37(m)(1)-1 to delete the reference to Sec.  1026.37's permission that 
disclosures be made ``as applicable'' to conform with revisions to 
Sec.  1026.37. Pursuant to Sec.  1026.37(o)(3), the illustrated 
language is required even though Sec.  1026.37(m)(1) refers to 
``consummation of the transaction.'' The Bureau has used the term 
``close'' instead of the term ``consummation'' on the disclosures, 
because it is plain language, which the Bureau believes will be more 
understandable to most consumers. The Bureau adopts these revisions 
pursuant to its authority under TILA section 105(a) and Dodd-Frank Act 
section 1032(a). The Bureau believes these revisions will effectuate 
the purpose of TILA by promoting the informed use of credit and 
consistent with Dodd-Frank Act section 1405(b), will improve consumer 
awareness and understanding of residential mortgage loans.
37(m)(2) Assumption
    TILA section 128(a)(13) requires the creditor to disclose, in any 
residential mortgage transaction, a statement indicating whether a 
subsequent purchaser may be permitted to assume the remaining loan 
obligation on its original terms. 15 U.S.C. 1638(a)(13). This provision 
is currently implemented in Sec.  1026.18(q), and applies only to 
residential mortgage transactions. TILA section 103(x) defines 
``residential mortgage transaction'' as a ``transaction in which a 
mortgage, deed of trust, purchase money security interest arising under 
an installment sales contract, or equivalent consensual security 
interest is created or retained against the consumer's dwelling to 
finance the acquisition or initial construction of a dwelling.'' 15 
U.S.C. 1602(x).
    The Bureau proposed Sec.  1026.37(m)(2) to implement TILA section 
128(a)(13) for transactions subject to Sec.  1026.19(e), pursuant to 
its authority under TILA section 105(a), Dodd-Frank Act section 
1032(a), and, for residential mortgage loans, Dodd-Frank Act section 
1405(b). In addition, the Bureau proposed to modify the scope of TILA 
section 128(a)(13), pursuant to its authority under TILA section 105(a) 
and Dodd-Frank Act sections 1032(a) and 1405(b), to apply to all 
transactions subject to proposed Sec.  1026.19(e), even if not a 
``residential mortgage transaction'' as defined in TILA section 103(x). 
The Bureau stated its belief in the proposal that consumers in 
transactions secured by real property would benefit from the 
disclosure, even if the property does not contain a dwelling. The 
Bureau stated that the proposed modification would promote the informed 
use of credit, consistent with the purposes of TILA; ensure that the 
features of the transaction are fully, accurately, and effectively 
disclosed to consumers in a manner that permits consumers to understand 
the costs, benefits, and risks associated with the mortgage 
transaction, in light of the facts and circumstances, consistent with 
Dodd-Frank Act section 1032(a); and would improve consumer awareness 
and understanding of residential mortgage loans, and be in the interest 
of consumers and the public, consistent with Dodd-Frank Act section 
1405(b). Transactions subject to the disclosure

[[Page 79988]]

requirements of Sec.  1026.18 would have continued to be subject to 
Sec.  1026.18(q).
    Proposed Sec.  1026.37(m)(2) would have implemented TILA section 
128(a)(13) for all transactions subject to Sec.  1026.19(e) by 
requiring the creditor to disclose whether a subsequent purchaser of 
the property may be permitted to assume the remaining loan obligation 
on its original terms. Proposed comment 37(m)(2)-1 would have clarified 
that the creditor must disclose whether or not a third party may be 
allowed to assume the loan on its original terms if the property is 
sold or transferred by the consumer. Proposed comment 37(m)(2)-1 also 
would have noted that in many mortgages, the creditor may be unable to 
determine whether the loan is assumable at the time the Loan Estimate 
is provided and cited to the GSEs as examples of entities that as a 
common practice condition assumability on a number of factors such as 
the subsequent borrower's creditworthiness. Further, proposed comment 
37(m)(2)-1 would have clarified that, if the creditor can determine 
that such assumption is not permitted, the creditor complies with Sec.  
1026.37(m)(2) by disclosing that the loan is not assumable. In all 
other situations, including where assumption of a loan is permitted or 
is dependent on certain conditions or factors, or uncertainty exists as 
to the future assumability of a mortgage, the creditor complies with 
proposed Sec.  1026.37(m)(2) by disclosing that, under certain 
conditions, the creditor may allow a third party to assume the loan on 
its original terms. Proposed comment 37(m)(2)-2 would have clarified 
that the phrase ``original terms'' as used in Sec.  1027.37(m)(2) does 
not preclude an assumption fee but may represent different terms, and 
would have provided an example of a modified term.
    An association of State regulators commented that the assumption 
disclosure, as proposed in Sec.  1026.37(m)(2) for the Loan Estimate 
was inconsistent with that proposed in Sec.  1026.38(l)(1), for the 
Closing Disclosure, as illustrated by proposed forms H-24 and H-25 of 
appendix H to Regulation Z, respectively. The Bureau believes that the 
consistent statements between the Loan Estimate and Closing Disclosure 
will aid consumer understanding. Accordingly, the Bureau is adopting 
Sec.  1026.37(m)(2) as proposed, based on the authority stated in the 
proposal, but is revising the assumption disclosure on form H-24 for 
consistency with the Closing Disclosure, as described in the section-
by-section analysis of appendix H to Regulation Z. The Bureau is 
adopting comments 37(m)(2)-1 and -2 substantially as proposed but with 
minor modifications for clarity.
37(m)(3) Homeowner's Insurance
    TILA section 106(c) provides that premiums for homeowner's 
insurance written in connection with any consumer credit transaction 
shall be included in the finance charge unless a clear and specific 
statement in writing is furnished by the creditor to the person to whom 
credit is extended, setting forth the cost of the insurance if obtained 
from or through the creditor, and stating that the person to whom 
credit is extended may choose the insurance provider. 15 U.S.C. 
1605(c). Current Sec. Sec.  1026.4(d)(2)(i) and 1026.18(n) implement 
this provision.
    The Bureau stated in the proposal that it understands that many 
creditors provide consumers the disclosure described in TILA section 
106(c) and Sec.  1026.4(d)(2)(i) in order to exclude homeowner's 
insurance premiums from the finance charge. The Bureau stated that to 
reduce the number of individual disclosures provided to consumers and 
facilitate compliance for creditors, the Bureau proposed Sec.  
1026.37(m)(3) which provides that, at the creditor's option, the 
creditor may disclose a statement of whether homeowner's insurance is 
required on the property and whether the consumer may choose the 
insurance provider, labeled ``Homeowner's Insurance.'' Proposed comment 
37(m)(3)-1 would have clarified that the disclosure required in Sec.  
1026.37(m)(3) is optional. Proposed comment 37(m)(3)-2 would have 
clarified that a creditor satisfies the condition for excluding 
homeowner's insurance premiums from the finance charge described in 
Sec.  1026.4(d)(2)(i) by disclosing the statement described in Sec.  
1026.37(m)(3).
    The Bureau proposed Sec.  1026.37(m)(3) pursuant to its authority 
under TILA section 105(a), Dodd-Frank Act section 1032(a), and, for 
residential mortgage loans, Dodd-Frank Act section 1405(b). The Bureau 
believes, as stated in the proposal, that combining the optional 
disclosure regarding homeowner's insurance premiums with the other 
disclosures on the Loan Estimate may avoid information overload and 
therefore promote the informed use of credit, consistent with the 
purposes of TILA. In addition, the Bureau believes, as stated in the 
proposal, that the proposed disclosure will help ensure that the 
features of the transaction are fully, accurately, and effectively 
disclosed to consumers in a manner that permits consumers to understand 
the costs, benefits, and risks associated with the mortgage 
transaction, consistent with Dodd-Frank Act section 1032(a), and will 
improve consumer awareness and understanding of residential mortgage 
loans, in the interest of consumers and the public, consistent with 
Dodd-Frank Act section 1405(b).
    A national trade association representing developers of timeshare 
properties commented that the homeowner's insurance disclosure is not 
applicable to timeshare transactions because the homeowners association 
for the timeshare resort typically pays for insurance on the property. 
As noted, the disclosure required by Sec.  1026.37(m)(3) may be made at 
the creditor's option. Accordingly, to the extent that timeshare 
creditors believe the disclosure is inapplicable, they are free to omit 
it from the Loan Estimate. The Bureau continues to believe that Sec.  
1026.37(m)(3) will effectuate the purposes of TILA and is consistent 
with the Dodd-Frank Act section 1032(a) and 1405(b). Accordingly, the 
Bureau is adopting Sec.  1026.37(m)(3) substantially as proposed but is 
making minor modifications for clarity and to reflect the disclosure on 
form H-24. The Bureau is adopting comment 37(m)(3)-1 as proposed and is 
adopting comment 37(m)(3)-2 substantially as proposed but with a minor 
modification for clarity.
37(m)(4) Late Payment
    TILA section 128(a)(10) requires disclosure of ``any dollar charge 
or percentage amount which may be imposed by a creditor solely on 
account of a late payment.'' 15 U.S.C. 1638(a)(10). This requirement is 
currently implemented in Sec.  1026.18(l), which requires a statement 
detailing any ``dollar or percentage charge that may be imposed before 
maturity due to a late payment.''
    The Bureau proposed Sec.  1026.37(m)(4) to implement TILA section 
128(a)(10) for transactions subject to Sec.  1026.19(e), pursuant to 
its implementation authority under TILA section 105(a). In addition, 
the Bureau proposed to require creditors to disclose the number of days 
that a payment must be late to trigger the late payment charge pursuant 
to its authority under TILA section 105(a) and Dodd-Frank Act section 
1032(a). The Bureau stated in the proposal that it believes that the 
additional disclosure enhances the late payment disclosure by 
describing the conditions that may trigger a late payment charge and 
therefore promotes the informed use of credit, consistent with the 
purpose of TILA. For this same reason, the Bureau stated its belief 
that the proposed disclosure would ensure

[[Page 79989]]

that the features of the transaction are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
mortgage transaction, in light of the facts and circumstances, 
consistent with Dodd-Frank Act section 1032(a).
    Proposed Sec.  1026.37(m)(4) would have implemented TILA section 
128(a)(10) for transactions subject to Sec.  1026.19(e) and required 
the creditor to disclose a statement detailing any charge that may be 
imposed on the consumer for a late payment and the number of days a 
payment must be late before a penalty for late payment may be assessed. 
Proposed comment 37(m)(4)-1 would have clarified that the late payment 
disclosure is required if charges are added to an individual delinquent 
installment of a transaction that remains ongoing on its original 
terms. Proposed comment 37(m)(4)-1 also would have clarified which 
charges and creditor actions under the legal obligation do not qualify 
as a late payment charge and that an increase in the interest rate is a 
late payment charge to the extent of the increase. Comment 37(m)(4)-2 
would have clarified that the creditor may make changes to the 
disclosure to reflect the requirements imposed and alternatives allowed 
under State law.
    Two GSEs criticized the design of the Late Payment disclosure as 
proposed on form H-24 of appendix H to Regulation Z, stating it was 
inconsistent with other disclosures required by Sec.  1026.37(m) 
because the information filled in by the creditor that is particular to 
the consumer's transaction is not highlighted by a checkbox. The Bureau 
did not propose a format based on checkboxes for this disclosure in 
proposed form H-24 of appendix H based on its belief that the formula 
for a creditor's charge for a late payment varies, although it is 
typically subject to limits under applicable law. However, the Bureau 
believes that placing additional emphasis on the variable information 
of the disclosure may aid consumer understanding, and thus, has 
illustrated such emphasis of this information using italics in form H-
24 of appendix H to Regulation Z, as discussed in the section-by-
section analysis of appendix H.
    The Bureau did not receive any comments on the substance of 
proposed Sec.  1026.37(m)(4) or its accompanying commentary. 
Accordingly, the Bureau is finalizing proposed Sec.  1026.37(m)(4) and 
comments 37(m)(4)-1 and -2 as proposed, based on the authority stated 
in the proposal.
37(m)(5) Refinance
    TILA section 128(b)(2)(C)(ii) requires that, for variable-rate 
transactions or transactions where the regular payment may otherwise be 
variable and that are secured by the consumer's dwelling, the borrower 
be provided with a disclosure that there is no guarantee to refinance 
to a lower amount. Current Sec.  1026.18(t) implements this provision 
by requiring creditors to disclose a statement that there is no 
guarantee that the consumer may refinance to lower the interest rate or 
monthly payment. Current Sec.  1026.18(t) also expands the no-
guarantee-to-refinance disclosure to apply to, not only variable-rate 
or variable-payment transactions, but all closed-end transactions 
secured by real property or a dwelling, other than transactions secured 
by the consumer's interest in a timeshare.
    The Bureau proposed Sec.  1026.37(m)(5) to implement TILA section 
128(b)(2)(C)(ii) for transactions subject to proposed Sec.  1026.19(e). 
Proposed Sec.  1026.37(m)(5) would have required the disclosure of the 
following statement: ``Refinancing this loan will depend on your future 
financial situation, the property value, and market conditions. You may 
not be able to refinance this loan.'' This statement was based on the 
results of several rounds of consumer testing. As discussed in the 
Kleimann Testing Report, consumers in the Bureau's consumer testing 
understood this language to mean that they are permitted to try to 
refinance their loan in the future, but that they may not be able to do 
so. See Kleimann Testing Report at 218, 225.
    In implementing TILA section 128(b)(2)(C)(ii), the Bureau proposed 
to use its authority under TILA section 105(a) and Dodd-Frank Act 
sections 1032(a) and 1405(b) to expand the requirement to all 
transactions subject to Sec.  1026.19(e). The proposal stated that, 
like the Board, the Bureau was concerned that some consumers may accept 
loan terms that could present refinancing problems similar to those 
experienced by consumers in variable-rate or variable-payment 
transactions (e.g., a three-year fixed rate mortgage with a balloon 
payment), and that all consumers would benefit from a statement that 
encourages consideration of possible future market rate increases on 
refinancing. See 2009 Closed-End Proposal, 74 FR 43310. The Bureau 
stated that it believed the proposed disclosure effectuates the purpose 
of TILA to help consumers avoid the uninformed use of credit. In 
addition, the Bureau stated its belief that the proposed disclosure 
would help to ensure that the features of mortgage transactions are 
fully and effectively disclosed to consumers in a manner that permits 
consumers to understand the costs, benefits, and risks associated with 
a financial product, in light of the facts and circumstances, 
consistent with Dodd-Frank Act section 1032(a), and would improve 
consumer awareness and understanding of residential mortgage loans, 
which is in is the interest of consumers and the public, consistent 
with Dodd-Frank Act section 1405(b). Transactions subject to the 
disclosure requirements of Sec.  1026.18 would have continued to be 
subject to Sec.  1026.18(t).
    A national trade association representing developers of timeshare 
properties commented that the refinance disclosure is confusing for 
timeshare consumers because those transactions are rarely refinanced 
and thus the disclosure could mislead consumers into believing they 
could refinance. The Bureau disagrees that the disclosure as proposed 
would be confusing for timeshare consumers. Indeed, the disclosure 
required by Sec.  1026.37(m)(5) notifies consumers that refinancing may 
not be possible, which is correct given that timeshares are typically 
not refinanced. The Bureau continues to believe that the disclosure 
required by Sec.  1026.37(m)(5) will effectuate the purposes of TILA 
and is consistent with the Dodd-Frank Act sections 1032(a) and 1405(b). 
See the section-by-section analysis of Sec.  1026.19 for a discussion 
regarding the Bureau's decision to extend the scope of certain 
disclosures required by the Dodd-Frank Act for ``residential mortgage 
loans,'' as defined under Dodd-Frank Act section 1401, to transactions 
secured by a consumer's interest in a timeshare plan. Accordingly, the 
Bureau is adopting Sec.  1026.37(m)(5) as proposed, based on the 
authority stated in the proposal.
37(m)(6) Servicing
    RESPA section 6(a) requires disclosures to loan applicants 
concerning whether the servicing of the loan may be assigned, sold, or 
transferred to any other person at any time while the loan is 
outstanding. 12 U.S.C. 2605(a). Current appendix C to Regulation X 
implements RESPA section 6(a) and requires a statement in the RESPA GFE 
regarding loan servicing under the section ``If your loan is sold in 
the future,'' albeit using relatively generic language that does not 
express the creditor's actual intent.\293\ Proposed

[[Page 79990]]

Sec.  1026.37(m)(6) would have required a statement of whether the loan 
will be serviced by the creditor or transferred to another servicer, 
labeled ``Servicing.'' Proposed comment 37(m)(6)-1 would have clarified 
that the disclosure required in proposed Sec.  1026.37(m)(6) requires 
only that the creditor state its intent at the time the disclosure is 
issued.
---------------------------------------------------------------------------

    \293\ The standard RESPA GFE form in appendix C to Regulation X 
reads as follows: ``Some lenders may sell your loan after 
settlement. Any fees lenders receive in the future cannot change the 
loan you receive or the charges you paid at settlement.''
---------------------------------------------------------------------------

    For transactions subject to RESPA, the Bureau proposed Sec.  
1026.37(m)(6) to implement RESPA section 6(a), pursuant to its 
authority under RESPA section 19(a). For transactions subject to the 
requirements of proposed Sec.  1026.19(e) but that are not subject to 
RESPA, the Bureau proposed to require creditors to provide the 
servicing disclosure described in Sec.  1026.37(m)(6) pursuant to its 
authority under TILA section 105(a) and Dodd-Frank Act 1032(a). The 
Bureau believes, as stated in the proposal, that requiring the 
disclosure regarding loan servicing in these transactions will improve 
consumer understanding and avoid the uninformed use of credit, 
consistent with the purposes of TILA, and that the disclosure will 
ensure that the features of the transaction are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
mortgage transaction, in light of the facts and circumstances, 
consistent with Dodd-Frank Act section 1032(a).
    A non-depository lender commenter stated that a lender does not 
typically know at the time the Loan Estimate is issued whether it 
intends to retain servicing of the loan or transfer it. Further, the 
commenter stated that under other applicable laws and regulations, a 
creditor need not disclose whether it has transferred servicing of the 
loan until after closing. The commenter suggested that the disclosure 
design include a third option where a creditor could disclose that it 
did not know whether it intended to service the loan.
    The Bureau intended for the servicing disclosure to implement RESPA 
section 6(a), which only requires a notice of whether the servicing of 
the loan may be assigned, sold, or transferred to any other person at 
any time while the loan is outstanding. The Bureau intended that the 
proposal require, as illustrated by proposed form H-24 of appendix H to 
Regulation Z, only the disclosure of the creditor's intent. The Bureau 
believed such a disclosure would convey effectively the information 
required by RESPA section 6(a) and aid consumer understanding of the 
transaction. The Bureau, however, understands that proposed Sec.  
1026.37(m)(6) would have required a statement of whether the loan will 
or will not be serviced by the creditor, and does not in the regulatory 
text refer to the creditor's intent to service the loan. Accordingly, 
the Bureau is revising Sec.  1026.37(m)(6) to refer specifically to the 
creditor's intent with respect to servicing the loan. The Bureau 
believes that, with the revision to the regulatory text, a third check 
box in form H-24, as suggested by the commenter, is unnecessary. If a 
creditor does not intend to service the loan, then it should select the 
checkbox that it does not intend to service the loan. The Bureau 
believes that if there is doubt regarding whether the creditor intends 
to transfer servicing, consumers will be better served by a disclosure 
that the creditor does intend to do so, in order that consumers are on 
notice about that possibility. The Bureau is adopting Sec.  
1026.37(m)(6) with a revision to require a statement of whether or not 
the creditor intends to service the loan. The Bureau is also revising 
comment 37(m)(6)-1 to change a reference from the closing of the loan 
to the consummation of the loan. The Bureau adopts Sec.  1026.37(m)(6) 
and comment 37(m)(6)-1 as revised pursuant to its authority under RESPA 
sections 6(a) and 19(a), TILA section 105(a), and Dodd-Frank Act 
1032(a).
37(m)(7) Liability After Foreclosure
    Section 1414(c) of the Dodd-Frank Act created new TILA section 
129C(g), which establishes certain requirements for residential 
mortgage loans subject to protection under a State anti-deficiency law. 
15 U.S.C. 1639c(g). TILA section 129C(g)(2) requires that, prior to 
consummation, the creditor or mortgage originator provide a written 
notice to the consumer describing the protection provided by the anti-
deficiency law and the significance to the consumer of the loss of such 
protection. TILA section 129C(g)(3) requires that any creditor or 
mortgage originator that provides an application to a consumer or 
receives an application from a consumer, for any type of refinancing 
for such loan that would cause the loan to lose the protection of an 
anti-deficiency law, shall provide a written notice to the consumer 
describing the protection provided by the anti-deficiency law and the 
significance for the consumer of the loss of such protection before any 
agreement for refinancing is consummated. TILA section 129C(g)(1) 
defines anti-deficiency law to mean the law of any State which provides 
that, in the event of foreclosure on the residential property of a 
consumer securing a mortgage, the consumer is not liable, in accordance 
with the terms and limitations of such State law, for any deficiency 
between the sale price obtained from a foreclosure sale and the 
outstanding balance of the mortgage.
    Proposed Sec.  1026.37(m)(7) would have implemented TILA section 
129C(g)(3), which applies to refinance transactions and proposed 
comment 37(m)(7)-1 would have provided guidance on when such a 
disclosure is permitted. Specifically, proposed Sec.  1026.37(m)(7) 
would have provided that, if the credit is to refinance an extension of 
credit as described in Sec.  1026.37(a)(9)(ii) or (iii), the creditor 
must disclose a brief statement that certain State law protections 
against liability for any deficiency after foreclosure may be lost upon 
refinancing, the potential consequences of the loss of such 
protections, and a statement that the consumer should consult an 
attorney for additional information, labeled ``Liability after 
Foreclosure.''
    The Bureau proposed this requirement pursuant to its implementation 
authority under TILA section 105(a). TILA section 129C(g)(3) requires 
creditors to provide the anti-deficiency disclosure prior to 
consummation. The Bureau stated in the proposal that it believed that 
consumers in refinance transactions would benefit from receiving the 
disclosure in the Loan Estimate provided three days after application 
since the disclosure informs consumers of the potentially significant 
consequences of refinancing and is therefore an important consideration 
for a consumer evaluating whether to proceed with the loan. Further, 
the Bureau stated it believed that the anti-deficiency disclosure is 
appropriately tied to the submission of the consumer's application 
since TILA section 129C(g)(3) requires creditors to provide the 
disclosure to all consumers to whom it provides an application or from 
whom it receives an application. The Bureau stated its belief that it 
would not be feasible to require the disclosure to be provided to any 
consumer to whom the creditor ``provides'' a loan application because, 
as discussed above in the section-by-section analysis of Sec.  
1026.2(a)(3), ``application'' is defined by Sec.  1026.2(a)(3) as the 
consumer's submission of certain specific information to a creditor. 
The requirements of TILA section 129C(g)(2) were proposed to be 
implemented in Sec.  1026.38(p)(3).

[[Page 79991]]

    The Bureau did not receive any comments specifically on proposed 
Sec.  1026.37(m)(7). Accordingly, the Bureau is adopting Sec.  
1026.37(m)(7) as proposed, based on the authority stated in the 
proposal. The Bureau is adopting comment 37(m)(7)-1 substantially as 
proposed but with minor modifications for clarity. See the section-by-
section analysis of Sec.  1026.38(p)(3) for a discussion of the 
proposed provisions implementing TILA section 129C(g)(2).
37(n) Signature Statement
    TILA section 128(b)(2)(B)(i) requires the following statement in 
transactions that are also subject to RESPA and where the extension of 
credit is secured by the consumer's dwelling, other than timeshares: 
``You are not required to complete this agreement merely because you 
have received these disclosures or signed a loan application.'' 15 
U.S.C. 1638(b)(2)(B)(i). Current Sec.  1026.19(a)(4) implements this 
provision by requiring, for transactions subject to RESPA that are 
secured by the consumer's dwelling (other than home equity lines of 
credit subject to Sec.  1026.5(b) and timeshares), the statement 
required by TILA section 128(b)(2)(B)(i) in the good faith estimates 
and corrected disclosures provided pursuant to Sec.  1026.19(a)(1) and 
(2).
    During the Know Before You Owe initiative, the Bureau received 
public feedback on the prototype disclosure forms stating that a 
signature line on the integrated disclosures would facilitate 
compliance for industry. In addition, during the Bureau's consumer 
testing, industry participants also stated that a signature line would 
facilitate compliance. Based on that feedback, the Bureau designed 
prototype disclosure forms that included signature lines for consumers 
to confirm receipt of the disclosures and included a signature 
statement based on the statement required by TILA section 
128(b)(2)(B)(i). At the Bureau's consumer testing, participants 
understood from the prototype signature statement that signing the 
disclosure did not obligate them to the transaction. See Kleimann 
Testing Report at 153.
    Accordingly, the Bureau proposed to implement the signature 
requirement of TILA section 128(b)(2)(B)(i) in proposed Sec.  
1026.37(n), for all transactions subject to Sec.  1026.19(e), which 
would have provided creditors with the option to add a line for the 
signatures of the consumers in the transaction, but required the 
signature statement. The Bureau proposed to modify the signature 
language required by TILA section 128(b)(2)(B)(i) pursuant to its 
authority under TILA section 105(a), Dodd-Frank Act section 1032(a), 
and, for residential mortgage loans, Dodd-Frank Act section 1405(b). 
While the substance of the disclosure required by proposed Sec.  
1026.37(n) is the same as the statutory language, as discussed in the 
Kleimann Testing Report, the Bureau stated in the proposal that its 
consumer testing indicated that consumers easily understand from the 
proposed language that a signature does not bind them to accept the 
loan. See Kleimann Testing Report at 131, 148, 153, 220.
    Accordingly, the Bureau believed that the proposed modification 
would have promoted the informed use of credit, consistent with the 
purposes of TILA. For this same reason, the Bureau stated its belief 
that the proposed modification would ensure that the features of the 
transaction are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to understand the costs, 
benefits, and risks associated with the mortgage transaction, 
consistent with Dodd-Frank Act section 1032(a), and will improve 
consumer awareness and understanding of residential mortgage loans and 
is in the interest of consumers and the public, consistent with Dodd-
Frank Act section 1405(b).
    The Bureau also proposed to use its authority under TILA section 
105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage 
loans, Dodd-Frank Act section 1405(b) to expand the scope of TILA 
section 128(b)(2)(B)(i) to apply to all transactions subject to 
proposed Sec.  1026.19(e). As discussed above, TILA section 
128(b)(2)(B)(i) applies only to transactions subject to both TILA and 
RESPA that are secured by the consumer's dwelling, and excludes 
transactions secured by the consumer's interest in a timeshare. 
However, the Bureau stated its belief in the proposal that consumers in 
all transactions subject to proposed Sec.  1026.19(e) would benefit 
from the disclosure because it ensures that consumers understand they 
are not obligated to complete the loan transaction just because they 
signed or received the Loan Estimate. Accordingly, the Bureau stated 
its belief that the proposed disclosure would promote the informed use 
of credit, consistent with the purposes of TILA. For these same 
reasons, the Bureau stated its belief in the proposal that the proposed 
disclosure would ensure that the features of the transaction are fully, 
accurately, and effectively disclosed to consumers in a manner that 
permits consumers to understand the costs, benefits, and risks 
associated with the mortgage transaction, consistent with Dodd-Frank 
Act section 1032(a), and would improve consumer awareness and 
understanding of residential mortgage loans and would be in the 
interest of consumers and the public, consistent with Dodd-Frank Act 
section 1405(b).
    Proposed Sec.  1026.37(n)(1) would have stated that, at the 
creditor's option, lines for the signatures of the consumers in the 
transaction may be provided. The optional signatures lines would be 
located under the master heading ``Additional Information About This 
Loan'' required by proposed Sec.  1026.37(k) and under the heading 
``Confirm Receipt.'' Proposed Sec.  1026.37(n)(1) also would have 
stated that if the creditor includes a line for the consumer's 
signature, the creditor is required to disclose that, by signing the 
Loan Estimate, the consumer is only confirming receipt of the form and 
is not required to accept the loan. For transactions where the creditor 
does not include a line for the consumer's signature, proposed Sec.  
1026.37(n)(2) would have required disclosure of the statement that the 
consumer does not have to accept the loan because the consumer received 
or signed the Loan Estimate. The statement that would have been 
required by proposed Sec.  1026.37(n)(2) would have been located under 
the heading ``Other Considerations'' that would have been required by 
proposed Sec.  1026.37(m), labeled ``Loan Acceptance.'' Proposed 
comment 37(n)-1 would have clarified that it is at the creditor's 
discretion whether to provide a signature line for the consumer's 
signature, but if a signature line is provided, the statement in 
proposed Sec.  1026.37(n)(1) must be provided. Proposed comment 37(n)-2 
would have clarified that, if there is more than one consumer in the 
transaction, the first consumer signs as the applicant and each 
additional consumer signs as a ``co-applicant.'' Proposed comment 
37(n)-2 also would have clarified that the creditor may add an 
additional signature page to the back of the form if additional 
signature lines are necessary to accommodate the number of consumers in 
the transaction.
    A community bank commenter praised the proposed signature line, 
noting that consumers feel more at ease if they can sign a document to 
show that they have received it. A non-depository lender further 
praised the fact that the signature statement was optional. In 
contrast, a national trade association representing developers of 
timeshares criticized the inclusion of a signature line as confusing 
and unnecessary for consumers purchasing timeshare products. Several 
mortgage creditor trade association commenters stated that

[[Page 79992]]

the regulation would be clearer if the ``Loan Acceptance'' requirement 
were also listed in Sec.  1026.37(m). A document preparation company 
commenter requested guidance on whether the designation ``Applicant'' 
must appear below the consumer's name as shown on form H-24 or if the 
designation can be changed to reflect the name of the consumer signing 
the Loan Estimate.
    With respect to the commenters' criticism of the signature line as 
permitted by Sec.  1026.37(n)(1) as confusing, as expressly stated by 
that provision, a signature line is not required and thus, could be 
omitted for such transactions. In response to the commenters' request 
that the Loan Acceptance requirement be listed in Sec.  1026.37(m), the 
Bureau believes that listing the Loan Acceptance disclosure under both 
Sec.  1026.37(n) and (m) would be duplicative and declines to add it to 
Sec.  1026.37(m). The Bureau believes that, because the Loan Acceptance 
disclosure is required only if the creditor does not use the optional 
signature line, its placement under Sec.  1026.37(n) is clear and thus, 
facilitates compliance. In response to the commenter's request to 
permit disclosure of the applicant's name, rather than the designation 
``Applicant'' under the signature line, the Bureau is adding comment 
37(n)(1)-3 to clarify that a creditor may insert the consumer's name 
under the signature line, rather than using the designation 
``Applicant'' in form H-24, but is not required to do so.
    For the reasons discussed and based on the legal authority cited 
above and in the proposal, the Bureau is adopting Sec.  1026.37(n) and 
comments 37(n)-1 and -2 as proposed, with minor modifications to Sec.  
1026.37(n)(1) to conform to form H-24 and to comment 37(n)-2 for 
clarity. The Bureau is also adding comment 37(n)-3 for the reasons 
discussed above.
37(o) Form of Disclosures
    TILA section 122(a) provides that the information required to be 
disclosed under TILA shall be disclosed clearly and conspicuously, in 
accordance with regulations of the Bureau. 15 U.S.C. 1632(a). TILA 
section 128(b)(1) provides that the disclosures required by sections 
128(a) and 106(b) through (d) generally shall be conspicuously 
segregated from all other terms, data, or information provided in 
connection with a transaction, including any computations or 
itemization. 15 U.S.C. 1638(b)(1). Regulation Z currently implements 
these requirements for closed-end transactions in Sec.  1026.17(a)(1), 
which provides that the disclosures shall be made clearly and 
conspicuously in writing, in a form that the consumer may keep. Section 
1026.17(a)(1) further provides that the disclosures shall be grouped 
together, shall be segregated from everything else, and shall not 
contain any information not directly related to the disclosures under 
Sec.  1026.18 (and Sec.  1026.47 for private education loans).
    As discussed above, the Bureau proposed to exclude transactions 
subject to Sec.  1026.19(e) and (f) from the coverage of Sec.  
1026.17(a) and (b). Consequently, the requirements of TILA sections 
122(a) and 128(b)(1) must be implemented elsewhere. The Bureau, 
pursuant to its implementation authority under TILA section 105(a), 
therefore proposed to implement the statutory segregation and clear and 
conspicuous requirements of TILA sections 122(a) and 128(b)(1) for 
those disclosures in new Sec. Sec.  1026.37(o) and 1026.38(t). The 
Bureau stated its belief in the proposal that these requirements will 
effectuate the purposes of TILA by assuring a meaningful disclosure of 
credit terms so that the consumer will be able to compare more readily 
the various credit terms available to him or her and avoid the 
uninformed use of credit. In addition, Sec.  1026.37(o) establishes a 
standard form requirement for transactions subject to RESPA and 
provides flexibility for certain aspects of the integrated disclosures.
37(o)(1) General Requirements
    Proposed Sec.  1026.37(o)(1)(i) would have established the 
requirements that the disclosures required by Sec.  1026.37 be clear 
and conspicuous, in writing, and grouped together, segregated from 
everything else, and provided on separate pages that are not commingled 
with any other documents or disclosures, including any other 
disclosures required by State or other laws. Proposed comment 37(o)-1 
would have clarified that the clear and conspicuous standard requires 
that the disclosures be legible and in a readily understandable form. 
This guidance would have been adopted from existing comment 17(a)(1)-1. 
The comment also would have clarified that proposed Sec.  
1026.37(o)(1)(i) would have required that the disclosures required by 
Sec.  1026.37 be provided in a form that is physically separate from 
any other documents or disclosures, including any other disclosures 
required by State or other laws. This requirement is stricter than the 
guidance found in existing comment 17(a)(1)-2, which provides that the 
disclosures may be grouped together and segregated from other 
information in a variety of ways other than a separate piece of paper. 
Proposed Sec.  1026.37(o)(1)(ii) also would have provided that, except 
as provided in Sec.  1026.37(o)(5), the disclosures shall contain only 
the information required by Sec.  1026.37(a) through (n) and that they 
generally shall be made in the same order, and positioned relative to 
the master headings, headings, subheadings, labels, and similar 
designations in the same manner, as shown in form H-24. Proposed 
comment 37(o)(1)-2 would have clarified that, even if a creditor elects 
not to use the form as a model (when so permitted because the 
transaction is not a federally related mortgage loan, as discussed 
above), failure to comply with these requirements, to designate as 
``estimated'' all disclosures designated as such in the form, or to use 
letter size paper as shown in form H-24 constitutes noncompliance with 
the requirement of Sec.  1026.37(o)(3)(ii) that the disclosures be made 
with headings, content, and format substantially similar to the model 
form.
    The Bureau stated in the proposal that it recognized that, in 
certain credit sale and other non-mortgage, closed-end credit 
transactions, creditors include the disclosures required by Sec.  
1026.18 in the loan contract or some other document and ensure that 
they are grouped together and segregated by outlining them in a box or 
other means authorized by comment 17(a)(1)-2. The Bureau further stated 
in the proposal that it understood, however, that this approach is 
virtually never employed for mortgage credit, for which the new 
disclosures under proposed Sec. Sec.  1026.19(e) and 1026.37, rather 
than Sec.  1026.18 disclosures, are required. The Bureau stated in the 
proposal that it understood that mortgage lenders generally use a 
standardized note that cannot accommodate dynamically generated, 
transaction-specific disclosures, and they almost universally employ 
the model disclosure forms provided in appendix H to Regulation Z as 
stand-alone, separate documents for providing required TILA 
disclosures. The RESPA GFE and RESPA settlement statement forms 
required by RESPA for federally related mortgage loans currently are 
delivered as separate documents, in accordance with the standard form 
requirements of Regulation X. Moreover, the Bureau stated in the 
proposal that the proposed forms were developed as stand-alone 
documents through an extensive outreach and consumer testing process, 
as discussed above, and the Bureau was concerned that much of the 
informative benefit of the forms could be lost or compromised if they 
were permitted to be included within

[[Page 79993]]

other documents. For these reasons, the Bureau stated its belief in the 
proposal that requiring the Sec.  1026.37 disclosures to be delivered 
as a separate document maximizes the benefits of the forms and does not 
present any significant new obligation that mortgage lenders do not 
already effectively observe. The Bureau sought comment in the proposal, 
however, on whether there currently are transactions subject to 
proposed Sec.  1026.19(e) that may be burdened by the adoption of this 
requirement. Comments received in relation to this issue are discussed 
in the section-by-section analysis of Sec.  1026.19(e).
    A large bank requested guidance on whether it could provide a cover 
letter along with the Loan Estimate that outlines the next steps in the 
loan process. Provided the disclosures required by Sec.  1026.37 were 
made on pages separate from any cover letter, the Bureau believes that 
Sec.  1026.37(o)(1) as finalized permits providing a cover letter to a 
consumer along with the Loan Estimate. Because the Bureau continues to 
believe that it will effectuate the purposes of both TILA and RESPA, 
the Bureau is adopting Sec.  1026.3(o)(1) as revised to delete the 
requirement that the disclosures be on separate pages that are not 
commingled with any other documents or disclosures because the Bureau 
believes that requirement is redundant to the requirement that the 
disclosures be grouped together and segregated from everything else. 
The Bureau is adopting comment 37(o)(1)-1 substantially as proposed 
with minor modifications to clarify the requirement that the pages of 
the Loan Estimate be segregated from everything else and to explain 
that creditors may disclose only the information required by Sec.  
1026.37(a) through (n), based on the legal authority described in the 
proposal and above. The Bureau is adopting comment 37(o)(1)-2 as 
proposed.
37(o)(2) Headings and Labels
    Proposed Sec.  1026.37(o)(2) would have provided that, wherever 
form H-24 discloses the required master heading, heading, subheading, 
label, or similar designation for a disclosure as ``estimated,'' that 
corresponding master heading, heading, subheading, label, or similar 
designation required by Sec.  1026.37 must contain the word 
``estimated,'' even if the provision requiring such headings, label, or 
similar designation does not. As noted below in the section-by-section 
analysis of Sec.  1026.38, many of the disclosure items required by 
that section cross-reference their estimated counterparts in Sec.  
1026.37, although the same items may not be estimates as required by 
Sec.  1026.19(f). To avoid confusion over which items are estimates and 
which are not, the content provisions of Sec.  1026.37 do not qualify 
any of the master headings, headings, subheadings, labels, and similar 
designations of the items disclosed as ``estimated.'' Instead, proposed 
Sec.  1026.37(o)(2) incorporates by reference the ``estimated'' 
designations reflected on form H-24, and as discussed below, proposed 
Sec.  1026.38(t)(2) incorporates by reference the ``estimated'' 
designations reflected on form H-25. Proposed comment 37(o)(2)-1 would 
have provided guidance regarding the use of the ``estimated'' 
designations.
    The Bureau did not receive any comments regarding proposed Sec.  
1026.37(o)(2) or its accompanying commentary. The Bureau is adopting 
Sec.  1026.37(o)(2) substantially as proposed but is expanding it to 
require the capital letter designations in the headings and labels on 
form H-24 to be disclosed, as applicable. The Bureau makes this 
revision to clarify that the capital letter designations shown before 
or after certain of the headings and labels on form H-24 are required, 
even if the specific provisions of the corresponding disclosures in 
Sec.  1026.37 do not contain the initial capital letter. The Bureau is 
also revising the description of Sec.  1026.37(o)(2) from ``Estimated 
disclosures'' to ``Headings and labels.'' The Bureau is adopting Sec.  
1026.37(o)(2) as revised and is adopting comment 37(o)(2)-1 with 
modifications to conform to Sec.  1026.37(o)(2) as revised, and to 
clarify that the abbreviation ``est.'' for estimated as illustrated on 
form H-24 of appendix H is also incorporated into the disclosure 
requirements of Sec.  1026.37 and must be disclosed.
37(o)(3) Form
    Proposed Sec.  1026.37(o)(3)(i) also would have provided that, for 
a transaction that is a federally related mortgage loan, as defined in 
Regulation X, the disclosures must be made using form H-24, set forth 
in appendix H to Regulation Z. The Bureau proposed to require that 
creditors use a standard form (form H-24 of appendix H) for federally 
related mortgage loans pursuant to RESPA section 4, as amended by the 
Dodd-Frank Act. 12 U.S.C. 2603(a). Section 4 has long authorized the 
use of standard forms. As discussed above, the Dodd-Frank Act amended 
section RESPA section 4(a) to require the integrated disclosures that 
are the subject of this proposal, which specifically include both the 
settlement statement under section 4 and the RESPA GFE under section 
5(c). Although the Dodd-Frank Act eliminated one reference in section 
4(a) to a ``standard'' form, it left another reference in place, as 
well as another reference to a ``standard'' form in section 4(c). And 
by including the cross-reference to section 5(c) in section 4 in 
relation to the integrated disclosure mandate, Congress effectively 
extended RESPA's existing standard-form authority to the RESPA GFE as 
well as the RESPA settlement statement requirement. More notably, in 
amending section 4(a), Congress did not include an explicit prohibition 
of a mandatory-use form as is found in TILA section 105(b).\294\ For 
this reason, the Bureau stated in the proposal that it does not believe 
that Congress intended to eliminate standard-form authority from RESPA 
section 4.
---------------------------------------------------------------------------

    \294\ TILA section 105(b) states that ``nothing in this title 
may be construed to require a creditor or lessor to use any such 
model form or clause prescribed by the Bureau under this section.'' 
15 U.S.C. 1604(b).
---------------------------------------------------------------------------

    The Bureau also proposed a mandatory form pursuant to its authority 
under RESPA section 19(a) to prescribe such rules and regulations as 
may be necessary to achieve RESPA's purposes. 12 U.S.C. 2617(a). 
RESPA's purposes include the establishment of more effective advance 
disclosure to home buyers and sellers of settlement costs. 12 U.S.C. 
2601(b)(1). The Bureau stated its belief in the proposal, based on 
consumer testing results, that the purpose of more effective advance 
disclosure of settlement costs is better achieved if all lenders 
provide those disclosures in a standardized format that consumers can 
recognize and understand. Moreover, the Bureau stated in the proposal 
that credit terms included in the Loan Estimate facilitate and enhance 
the consumer's ability to shop for the best-priced loan, including 
settlement charges, which have a direct relationship to, and can 
overlap with, credit terms. The Bureau stated its belief in the 
proposal that disclosure of the settlement costs alone, without the 
context provided by the credit terms, is therefore far less effective. 
This is consistent with HUD's rationale in HUD's 2008 RESPA Final Rule 
for including credit terms in its good faith estimate form. See 73 FR 
68204, 68214-15 (Nov. 17, 2008). Accordingly, the Bureau stated its 
belief in the proposal that it is authorized under section 19(a) to 
require the standard form for the disclosure of all of the information 
it contains, both settlement costs and credit terms alike.
    As noted in the proposal, certain closed-end consumer credit 
transactions are subject to the requirements of

[[Page 79994]]

proposed Sec.  1026.19(e) but do not fall within the Regulation X 
definition of ``federally related mortgage loan.'' These include 
construction-only loans with terms of less than two years that do not 
finance the transfer of title to the borrower and loans secured by 
vacant land on which a home will not be constructed or placed using the 
loan proceeds within two years after settlement of the loan. See Sec.  
1024.5(b)(3) and (4). In addition, transactions subject to proposed 
Sec.  1026.19(e) but not subject to RESPA would include loans secured 
by non-residential real property, provided they have a consumer purpose 
as required by Sec.  1026.1(c)(1)(iv). See Sec.  1024.2, definition of 
``federally related mortgage loan,'' paragraph (1)(i) (requiring that 
the securing property be ``residential real property'').
    For such transactions that are subject to proposed Sec.  1026.19(e) 
because they are subject to TILA and are secured by real property, but 
that are not subject to RESPA, the Bureau did not propose to mandate 
the use of form H-24 as a standard form. As noted above, TILA section 
105(b) explicitly provides that nothing in TILA may be construed to 
require a creditor to use any model form or clause prescribed by the 
Bureau under that section. Accordingly, proposed Sec.  
1026.37(o)(3)(ii) would have provided that, for transactions subject to 
Sec.  1026.37 that are not federally related mortgage loans, the 
disclosures must be made with headings, content, and format 
substantially similar to form H-24 but use of that form is not 
required. Consistent with TILA section 105(b), proposed comment 
37(o)(3)-1 would have explained that, although use of the form as a 
standard form is not mandatory for such transactions, its use as a 
model form, if properly completed with accurate content, constitutes 
compliance with the clear and conspicuous and segregation requirements 
of Sec.  1026.37(o). In consideration of the recommendation of the 
Small Business Review Panel, the Bureau sought comment in the proposal 
on the advantages, such as cost-saving benefits, and disadvantages of 
requiring a standard form for the Loan Estimate for federally related 
mortgage loans and model forms for other credit transactions subject to 
proposed Sec.  1026.19(e). See Small Business Review Panel Report at 
28. Proposed Sec.  1026.37(o)(3)(iii) would have provided that the 
disclosures may be provided in electronic form, subject to compliance 
with the E-Sign Act. This provision parallels existing Sec.  
1026.17(a)(1).
    A national title company and a consumer advocacy group stated their 
support of the Bureau's requiring standard forms for federally related 
mortgage loans because doing so is more cost-effective for industry and 
benefits consumers in that they are able to learn the forms over the 
course of different transactions. Those commenters also apparently 
believed that the Bureau should require a standard form for all 
transactions subject to Sec. Sec.  1026.37 and 1026.38 but, as noted, 
TILA section 105(b) specifically prohibits requiring a creditor to use 
any model form or clause. A consumer advocacy group supported the 
Bureau's requirement that disclosures for non-federally related 
mortgage loans be made in a format substantially similar to the 
standard form because it believes uniformity is beneficial for 
consumers.
    Many varied types of industry commenters requested guidance on 
whether specific design elements of form H-24 were required, such as 
differing font sizes, bolding, shading, and underscoring. A national 
trade association representing banks requested permission for creditors 
to deviate from form H-24 generally with regard to graphics and shading 
because many of the required elements are expensive to implement. With 
respect to the differing font sizes, bolding, shading, and 
underscoring, several industry commenters objected to these formatting 
requirements because programming software to produce a single form with 
these various elements is expensive. With regard to shading 
specifically, industry commenters argued that documents with shading 
can be difficult to print or fax without obscuring text and are 
expensive to print because they require more ink than documents without 
shading. Industry commenters argued that these implementation costs 
would be transferred to the consumer and thus negate the potential 
benefit of the design of the integrated disclosures for consumers. 
Lastly, a document preparation company requested guidance on whether a 
creditor could produce a form optimized for screen presentation so that 
such disclosures were more easily viewed on a computer screen or a 
tablet. For example, the commenter suggested being able to present the 
Loan Estimate to a consumer in sections, rather than in pages and 
allowing the consumer to electronically acknowledge receipt of each 
section.
    For federally related mortgage loans, Sec.  1026.37(o)(3) requires 
the use of form H-24, including all of its elements, meaning that 
various font sizes, bolding, shading, and underscoring are required by 
Sec.  1026.37(o)(3). For mortgage loans to which Sec.  1026.19(e) 
applies but that are not federally related mortgage loans, form H-24 is 
only a model form. For federally related mortgage loans, the Bureau 
recognizes that the design of form H-24 is different from the RESPA 
GFE, RESPA settlement statement, and the TILA disclosures. As discussed 
elsewhere, the Bureau designed the integrated disclosures to more 
easily and clearly provide the information that is currently provided 
in two separate disclosures to consumers on one disclosure in as few 
pages as possible. As noted in part III above, at the Bureau's 
Quantitative Study, consumers who used the new Loan Estimate and 
Closing Disclosure performed statistically significantly better than 
those who used the existing disclosures. See Kleimann Quantitative 
Study Report at 68. Moreover, the Bureau believes that the design 
elements of the integrated disclosures contribute significantly to 
their better performance with consumers. The Bureau believes that this 
benefit to consumers outweighs the one-time cost of programming 
software to implement these design elements or any increased costs of 
copying and printing forms with these elements. With respect to the 
request for guidance on whether a creditor could produce a version of 
the disclosures optimized for a screen or a tablet, neither Sec.  
1026.37(o)(3)(iii) nor other provisions of Sec.  1026.37 permits any 
deviations from form H-24 for forms optimized to be shown on a screen 
or tablet. The Bureau believes that current technology provides for the 
viewing of the integrated disclosures as designed on computer screens 
and other devices. The Bureau's Know Before You Owe initiative was 
conducted on its Web site, on which the prototype disclosures were 
displayed for viewing and the submission of feedback by the public. 
With respect to whether such changes are permitted for non-federally 
related mortgage loans for which the integrated disclosures may be used 
as model forms, TILA section 105(b) permits creditors to delete non-
required information or rearrange the format of the model forms, if in 
making such deletion or rearranging the format, the creditor does not 
affect the substance, clarity, or meaningful sequence of the 
disclosure. For the aforementioned reasons, the Bureau is adopting 
Sec.  1026.37(o)(3)(i) substantially as proposed but with a technical 
revision to change the reference from Sec.  1026.37 to Sec.  
1026.19(e), based on the legal authority described above and in the 
proposal. Based on that same authority, the Bureau is adopting Sec.  
1026.37(o)(3)(ii) and comment 37(o)(3)-1 as proposed and

[[Page 79995]]

Sec.  1026.37(o)(3)(iii) substantially as proposed but with minor 
modifications for clarity.
37(o)(4) Rounding
    As described in the proposal, the prototype disclosure forms used 
in the Bureau's pre-proposal consumer testing displayed rounded numbers 
for certain information required to be disclosed by Sec.  1026.37. For 
example, rounded numbers were disclosed for the information required by 
Sec.  1026.37(b)(6) and (7), (c)(1)(iii), (c)(2)(ii) and (iii), 
(c)(4)(ii), (f), (g), (h), (i), and (l). In addition, the total monthly 
payment required by proposed Sec.  1026.37(c)(2)(iv) was rounded if any 
of its component amounts were required to be rounded. The loan amount 
required to be disclosed by proposed Sec.  1026.37(b)(1) and percentage 
amounts required to be disclosed by proposed Sec.  1026.37(b)(2) and 
(6), (f)(1)(i), (g)(2)(iii), (j), and (l)(2) and (3) that did not 
contain cents or fractional amounts were required to be disclosed 
without decimal places.
    The Bureau stated in the proposal that in its consumer testing, 
using rounded numbers in this manner, consumers were able to see and 
evaluate the information required by the above-mentioned paragraphs of 
Sec.  1026.37 quickly. The Bureau was concerned, as stated in the 
proposal, that a large number of exact dollar amounts and percentages 
had the potential to cause information overload and reduce the overall 
effectiveness of the disclosure. In the proposal, the Bureau stated its 
belief that rounding certain amounts on the Loan Estimate reduces the 
quantity of numbers on the form and the complexity of information about 
potential risks. For example, the Bureau stated that participants at 
its testing were able to evaluate the risks of maximum payments and 
interest rates in the Loan Terms table using rounded numbers, as well 
as evaluate the rounded closing cost estimates, enhancing the utility 
of the disclosure for consumers. The Bureau believed, as described in 
the proposal, that the exact number of cents or decimal places for 
information required to be disclosed by the above-mentioned paragraphs 
of Sec.  1026.37 at the time the Loan Estimate is provided would not 
provide a benefit to consumers that would outweigh the risk of 
information overload.
    Accordingly, the Bureau proposed to use its implementation 
authority under TILA section 105(a), its authority under section 
1032(a) of the Dodd-Frank Act, and its authority under section 1405(b) 
of the Dodd-Frank Act with respect to residential mortgage loans, to 
require only rounded numbers and percentages without fractional amounts 
to be disclosed without decimal places for certain information on the 
Loan Estimate. The Bureau stated its belief in the proposal that whole 
dollar and certain whole percentage amounts appear to be sufficient to 
inform consumers of the estimated periodic payment amounts, estimated 
closing costs, financial risks posed by maximum amounts, and ensure a 
meaningful disclosure of credit terms. In addition, the disclosure of 
exact amounts could suggest to consumers a degree of accuracy that may 
not be warranted for some of the estimated figures.
    In the proposal, the Bureau stated its belief that this requirement 
ensures the meaningful disclosure of credit terms to consumers and 
promotes the informed use of credit. In addition, the Bureau believed 
that this requirement may ensure that the features of any consumer 
financial product or service, both initially and over the term of the 
product or service, are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to understand the costs, 
benefits, and risks associated with the product or service, in light of 
the facts and circumstances. Further, the Bureau stated that this 
requirement may improve consumer awareness and understanding of 
transactions involving residential mortgage loans and is in the 
interest of consumers and in the public interest.
    Specifically, proposed Sec.  1026.37(o)(4)(i)(A) would have 
required only rounded numbers for the information disclosed pursuant to 
proposed Sec.  1026.37(b)(6) and (7), (c)(1)(iii), (c)(2)(ii) and 
(iii), (c)(4)(ii), (f), (g), (h), (i), and (l). Proposed Sec.  
1026.37(o)(4)(i)(B) would have required the loan amount disclosed 
pursuant to proposed Sec.  1026.37(b)(1) to be disclosed without 
decimal places denoting cents if the cent amount is zero. Proposed 
Sec.  1026.37(o)(4)(i)(C) would have required the total monthly payment 
disclosed pursuant to Sec.  1026.37(c)(2)(iv) to be disclosed as a 
rounded number if any of its component amounts are required to be 
rounded. The Bureau did not receive any comments on proposed Sec.  
1026.37(o)(4)(i)(A) or (B) and is adopting them as proposed. Proposed 
Sec.  1026.37(o)(4)(ii) would have required percentages that are 
disclosed pursuant to Sec.  1026.37(b)(2) and (6), (f)(1)(i), 
(g)(2)(iii), (j), and (l)(3) to be disclosed as an exact number up to 
two or three decimal places and percentages that are disclosed pursuant 
to Sec.  1026.37(l)(2) to be disclosed as an exact number up to three 
decimal places. Proposed comment 37(o)(4)-1 would have clarified that, 
consistent with Sec.  1026.2(b)(4), all numbers are to be disclosed as 
exact numbers, unless required to be rounded by proposed Sec.  
1026.37(o)(4). Proposed comments 37(o)(4)-2, 37(o)(4)(i)(A)-1, 
37(o)(4)(i)(B)-1, and 37(o)(4)(ii)-1 would have provided guidance 
regarding rounding amounts on the Loan Estimate.
    Many industry commenters criticized the proposal's requirement for 
rounded disclosures. Commenters argued that it would be difficult for 
consumers to compare and reconcile truncated values, especially when 
some numbers were rounded and others were not. The industry commenters 
also noted that programming software to create forms with rounded 
numbers is difficult and expensive and that, in their opinion, the 
benefit to the consumers of doing so does not outweigh the 
implementation cost. A document preparation company requested guidance 
on whether percentages which contain more than three decimal places 
must to be rounded to three decimal places pursuant to Sec.  
1026.37(o)(4)(ii). A document preparation company requested guidance on 
how numbers required to be rounded on the Loan Estimate would be 
compared to the Closing Disclosure for the purposes of the tolerances 
provided in Sec.  1026.19(f)(1). That issue is addressed above in the 
section-by-section analysis of Sec.  1026.19(e)(3)(i).
    The Bureau does not believe that rounded numbers would be difficult 
for consumers to use in comparing the Loan Estimate and the Closing 
Disclosure. As stated in the proposal, the Bureau believes, based on 
its extensive consumer testing, that rounded disclosures allow 
consumers to digest the information on the Loan Estimate faster and 
more easily than disclosure of non-rounded numbers. Moreover, given 
that many of the numbers on the Loan Estimate are simply estimates and 
will likely change on the Closing Disclosure, disclosing exact values 
is unnecessary and may contribute to information overload without any 
real benefit to consumers. Though the Bureau understands that 
programming forms to round numbers may be more expensive to implement, 
the Bureau does not believe that that one-time cost outweighs the 
benefit to consumers of disclosing rounded numbers. Indeed, the 
integrated disclosures performed significantly better in consumer 
testing than the existing RESPA GFE, RESPA settlement statement, and 
TILA disclosures. See Kleimann Quantitative Study Report at 68. With 
respect to the request for guidance on how to disclose percentages 
required to be disclosed by

[[Page 79996]]

Sec.  1026.37(o)(4)(ii) that contain more than three decimal places, 
the Bureau notes that the provision provides only three decimal places, 
and thus, percentages of more than three decimal places would need to 
be rounded to three decimal places to comply with Sec.  
1026.37(o)(4)(ii). The Bureau is revising comment 37(o)(4)(ii)-1 to 
this effect.
    The Bureau continues to believe that the rounding of certain 
numbers disclosed on the Loan Estimate as required by proposed Sec.  
1026.37(o)(4) will effectuate the purposes of both TILA and RESPA and 
is, therefore, adopting it substantially as proposed. The Bureau is 
revising Sec.  1026.37(o)(4)(i)(A) to except from the rounding 
requirements the per diem amount required to be disclosed by Sec.  
1026.37(g)(2)(iii) and the monthly amounts required to be disclosed by 
Sec.  1026.37(g)(3)(i) through (iv) because the Bureau believes that it 
is important for consumers to know the precise figures for these 
amounts given that they represent the exact interest paid and exact 
monthly costs for other items that would be paid in advance at 
consummation. However, the totals required to be disclosed by Sec.  
1026.37(g)(2)(iii) and (g)(3)(i) through (iv) must still be rounded so 
that they can be understood easily by consumers and totaled under Sec.  
1026.37(g)(5). The Bureau did not receive any comments on the proposed 
commentary to Sec.  1026.37(o)(4) and is adopting Sec.  
1026.37(o)(4)(i)(B) and (o)(4)(ii) and comments 37(o)(4)-1, -2, 
37(o)(4)(i)(A)-1, 37(o)(4)(i)(B)-1 substantially as proposed, with 
modifications for clarity. For the reasons discussed, the Bureau is 
revising comment 37(o)(4)(ii)-1. The Bureau is adopting Sec.  
1026.37(o)(4)(i)(C) as proposed.
37(o)(5) Exceptions
    As described in the proposal, the Bureau's consumer testing 
indicated that the format of information on the disclosures required by 
proposed Sec.  1026.37 substantially affects the way in which a 
consumer interacts with and understands the information disclosed. In 
addition, the Bureau stated in the proposal that it understood that 
credit and real estate transactions involve significant variability and 
believes that it is important to provide industry with clear guidance 
regarding permissible changes to the format requirements to accommodate 
this variability. Accordingly, the Bureau stated its belief in the 
proposal that it must specify the changes to the format that are 
required and permissible, to ensure the disclosures provided to 
consumers convey the information required by proposed Sec.  1026.37 in 
a clear, understandable, and effective manner for consumers.
    As described above, pursuant to RESPA section 19(a), 12 U.S.C. 
2617(a), Sec.  1024.7 of Regulation X currently requires the use of a 
standard form to provide the disclosures required by section 5 of 
RESPA, 12 U.S.C. 2604. In contrast, TILA section 105(b), 15 U.S.C. 
1604(b), provides for model disclosures instead of a standard form. 
However, TILA permits creditors to delete information not required 
under the statute, other than numerical disclosures, and rearrange the 
format, only if doing so does not affect the substance, clarity, or 
meaningful sequence of the disclosure. Pursuant to its authority under 
RESPA section 19(a), its implementation authority under TILA section 
105(a), and its authority under section 1032(a) of the Dodd-Frank Act, 
the Bureau proposed Sec.  1026.37(o)(5), which sets forth the required 
changes to the format required to be used by proposed Sec.  
1026.37(o)(3), illustrated by form H-24 of appendix H to Regulation Z, 
and the permissible changes that do not affect the substance, clarity, 
or meaningful sequence of the disclosure. In addition, consistent with 
section 1032(a) of the Dodd-Frank Act, the Bureau stated in the 
proposal that it believed specifying the required and permissible 
changes to the form would ensure that the features of consumer credit 
transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances. The Bureau 
stated its belief in the proposal that specifying the required and 
permissible changes to the form effectuates the purposes of TILA set 
forth in TILA section 102(a) and the purpose of the integrated 
disclosure set forth in TILA section 105(b), because it would ensure 
meaningful disclosure of credit terms to consumers, promote the 
informed use of credit, and facilitate compliance by providing 
flexibility where warranted. In addition, the Bureau stated its belief 
that this requirement would effectuate the purposes of RESPA by 
promoting more effective advance disclosure of settlement costs.
    Accordingly, proposed Sec.  1026.37(o)(5) would have specified 
certain changes to form H-24 that are required or that do not affect 
the substance, clarity, or meaningful sequence of the disclosure and 
therefore are permissible. Proposed Sec.  1026.37(o)(5)(i) would have 
required the substitution of the words ``month'' or ``monthly'' on the 
form H-24, where used to designate the frequency of payments or the 
applicable unit-period of the transaction, with a different word 
representing the frequency of payments or unit-period under the 
transaction's actual terms, if different from monthly. Proposed Sec.  
1026.37(o)(5)(ii) would have permitted the deletion of lender credits 
from the Cash to Close table, required by proposed Sec.  1026.37(d)(4), 
if the amount is zero. Proposed Sec.  1026.37(o)(5)(iii) would have 
permitted the use of a logo for, or addition of a slogan with, the 
information required by Sec.  1026.37(a)(3), and would have required 
the information disclosed pursuant to Sec.  1026.37(a)(3), if no logo 
is used, to be disclosed in a similar format as form H-24 of appendix H 
to Regulation Z. Proposed Sec.  1026.37(o)(5)(iv) would have permitted 
the attachment of a business card over the information required by 
proposed Sec.  1026.37(a)(3). The Bureau did not receive any comments 
on proposed Sec.  1026.37(o)(5)(i) through (iv).
    Proposed Sec.  1026.37(o)(5)(v) would have permitted the insertion 
of administrative information above the information required to be 
disclosed by proposed Sec.  1026.37(a)(2) and adjacent to the 
information required to be disclosed by proposed Sec.  1026.37(a)(3) to 
assist in the identification of the form or the information contained 
on the form. Proposed Sec.  1026.37(o)(5)(vi) would have permitted the 
form to be translated into languages other than English. The Bureau 
stated in the proposal that it understood that some State laws require 
versions of the disclosures required under TILA and RESPA to be 
provided to consumers in a language other than English when the 
negotiation of the transaction is conducted in that language.\295\ In 
addition, the Bureau noted that some of the regulatory authorities in 
these States publish their own translations of these disclosures for 
use by the public.\296\ As described in the proposal, the Bureau's 
consumer testing prior to the proposal included two rounds of testing 
with Spanish-speaking consumers of Spanish-language prototype 
disclosure forms to determine whether co-development of a non-English 
version of the disclosure would

[[Page 79997]]

be beneficial to consumers.\297\ At the proposal stage, the Bureau 
determined that co-development of a separate Spanish version of the 
disclosures would likely yield little benefit to consumers, because any 
differences in performance with the Spanish prototypes during testing 
were caused more by translation than design and structural issues. The 
Bureau stated its belief in the proposal that this may be due, in part, 
to the fact that the Bureau intentionally pursued a more graphic than 
textual design for the Loan Estimate with as few words as possible. The 
Bureau stated in the proposal that it believed the proposed design 
highlights key information and allows consumers to quickly recognize 
and find the key information about the transaction without large 
amounts of text. The Bureau further stated in the proposal that it did 
not believe the differences in language necessitated changes to the 
design of the disclosure. Accordingly, the proposed rule only included 
English-language disclosure forms and would have permitted the 
translation of these forms. The Bureau stated in the proposal that it 
planned to review issues surrounding translations of the integrated 
disclosures before issuing the final rule and solicited comment on 
whether the final rule should include sample Spanish-language or other 
non-English language forms.
---------------------------------------------------------------------------

    \295\ See Cal. Civ. Code Sec. Sec.  1632, 1632.5; Or. Rev. Stat. 
Sec.  86A.198.
    \296\ The California Department of Corporations has translated 
the RESPA GFE into Chinese, Korean, Tagalog, and Vietnamese, 
available at http://www.corp.ca.gov/Forms/Default.asp. The Oregon 
Division of Finance and Corporate Securities provides version of the 
RESPA GFE and early TILA disclosure in Russian, Spanish, and 
Vietnamese, available at http://www.cbs.state.or.us/dfcs/ml/mortgage_disclosures_translations.html.
    \297\ According to the U.S. Census Bureau, based on data from 
the 2007 American Community Survey, 55.4 million people spoke a 
language other than English at home, and of those people, 62 percent 
spoke Spanish. U.S. Census Bureau, Language Use in the United 
States: 2007, ACS-12 (Apr. 2010), available at http://www.census.gov/hhes/socdemo/language/data/acs/ACS-12.pdf.
---------------------------------------------------------------------------

    Proposed comment 37(o)(5)-1 would have clarified that creditors 
making any changes that are not expressly permitted may lose their 
protection from civil liability under TILA, because such changes may 
affect the substance, clarity, or meaningful sequence of the 
disclosure. Proposed comment 37(o)(5)-2 would have clarified that the 
form may be completed by hand, typewriter, computer, or other word 
processing device, as long as the method produces clear and legible 
text and uses the required formatting, including bold font where shown 
on form H-24. The comment would have clarified that pursuant to Sec.  
1026.37(o)(5), such completion by hand or typewriter would not have 
exempted the creditor from the requirement to keep records in an 
electronic, machine readable format under proposed Sec.  1026.25. 
Proposed comment 1026.37(o)(5)-3 would have clarified that if there are 
multiple creditors or mortgage brokers for a transaction, a creditor 
may alter the space provided on form H-24 and add labels to disclose 
additional contact information under proposed Sec.  1026.37(m), or 
disclose the additional information on a separate page with an 
appropriate cross-reference, if the space provided does not accommodate 
the information to be disclosed on the page. Proposed comment 
1026.37(o)(5)-4 would have clarified that a creditor may add signature 
lines to form H-24 under the ``Confirm Receipt'' heading required by 
proposed Sec.  1026.37(n), or an additional page with an appropriate 
cross-reference, if the space provided by form H-24 cannot accommodate 
the signature lines for multiple applicants.
    Several document preparation companies commented that the location 
permitted for insertion of administrative information by proposed Sec.  
1026.37(o)(5)(v) was problematic and that industry practice was to 
place administrative information on the bottom of forms. The commenters 
noted that including administrative information at the top and right of 
the Loan Estimate, as required by proposed Sec.  1026.37(o)(5)(v) 
risked the administrative information interfering with the substantive 
disclosures of the Loan Estimate, whereas the bottom of the form was 
less prominent. Further, the commenters noted that administrative 
information was typically placed at the bottom of a form to avoid it 
being covered if the form were stapled or clipped together. Commenters 
also requested that administrative information be permitted to be 
included on every page, rather than just on the first page of the Loan 
Estimate as permitted by proposed Sec.  1026.37(o)(5)(v) because there 
may be different versions of each page depending on the type of 
transaction and it is important for there to be a unique identifier on 
each page. In addition, document company commenters and a large bank 
also requested that form H-24 be revised to allow at least 1.5 or 1.75 
inches of white space at the bottom for bar coding or other 
administrative information.
    The Bureau received comments from both industry and consumer 
advocacy groups requesting that the Bureau issue sample forms 
translated into other languages. Consumer advocacy group commenters 
noted that failure to provide the forms in other languages could have a 
disparate impact on non-English speaking populations. One consumer 
advocacy group specifically requested translation of forms into Spanish 
because 16 percent of the population of the United States is of 
Hispanic origin. Industry commenters also requested that the Bureau 
provide foreign translations of the integrated disclosures so that 
translations were consistent across the industry.
    A consumer advocacy group suggested that proposed comment 37(o)(5)-
1 which clarified that creditors making any changes that are not 
expressly permitted may lose their protection from civil liability 
under TILA, read in conjunction with Sec.  1026.37(o)(5)(i) which 
requires the creditor to describe the appropriate unit-period whenever 
the form uses ``monthly'' or ``month'' to reflect the correct terms of 
the transaction, suggests that a creditor would not lose their 
protection from civil liability under TILA if it disclosed the wrong 
unit-period. A national title company questioned whether manual 
completion of the Loan Estimate as permitted by comment 37(o)(5)-2 
would permit a creditor to deviate from the shading and formatting 
shown on form H-24 that is required for federally related mortgage 
loans by Sec.  1026.37(o)(3). Lastly, the Bureau received comments from 
two document preparation companies seeking guidance on when additional 
pages may be added to the Loan Estimate.
    In response to the comments regarding the placement of 
administrative information as permitted by Sec.  1026.37(o)(5)(v), the 
Bureau is adopting proposed Sec.  1026.37(o)(5)(v) as revised to permit 
insertion of administrative information at the bottom of each page of 
the Loan Estimate and not only on the first page. With respect to the 
commenters' request for additional white space on the bottom of the 
form, there is limited space on the Loan Estimate and the Bureau could 
not increase the white space at the bottom of the pages of form H-24 
without adding additional pages to the disclosure. Adding additional 
pages to the disclosure would, in turn, increase the paperwork burden 
for industry and consumers and potentially risk information overload of 
consumers or otherwise affect consumers' ability or desire to engage 
with the form. Accordingly, the Bureau declines to revise the layout of 
form H-24 to increase the white space at the bottom of the page.
    Regarding translation, since the proposal, the Bureau has worked to 
translate the integrated disclosures into Spanish. Further, in response 
to the comments described above requesting Spanish translations that 
have been subject to consumer testing, the Bureau is including Spanish-
language models and samples of the Loan Estimate and

[[Page 79998]]

Closing Disclosure as form H-28 of appendix H to Regulation Z. Consumer 
group commenters also requested that the Bureau translate the forms 
into other languages such as Korean, Chinese, Russian, and Vietnamese 
and into formats specifically designed for visually impaired or elderly 
consumers. While the Bureau has not developed translations in these 
languages, or revisions for the visually impaired or elderly, at this 
time, it will consider doing so after the issuance of this final rule. 
Because the Bureau continues to believe that translating the forms into 
languages other than English will effectuate the purposes of both TILA 
and RESPA, it is adopting Sec.  1026.37(o)(5)(vi) substantially as 
proposed, but renumbered as Sec.  1026.37(o)(5)(ii) and with 
modifications to provide additional clarity, as described below. The 
Bureau is also adding comment 37(o)(5)-6 to provide additional guidance 
regarding permissible modifications to form H-24 to accommodate the 
translated language.
    With respect to manual completion, comment 37(o)(5)-2 clarifies 
that a creditor could reproduce blank form H-24 included in appendix H 
to Regulation Z and then complete the individual disclosures required 
by Sec.  1026.37 by hand, thereby retaining the headings, formatting, 
and shading of form H-24. Comment 37(o)(5)-2 does not permit deviation 
from form H-24 for manual completion. With respect to the suggestion 
that comment 37(o)(5)-1 would permit a creditor to disclose an 
incorrect unit-period without losing protection from civil liability 
under TILA, the Bureau does not believe that result follows from the 
regulation. Section 1026.37(o)(5)(i) requires the creditor to 
substitute the ``appropriate'' unit-period if not month or monthly. 
Only the substitute of an ``appropriate'' unit-period is a permissible 
change pursuant to Sec.  1026.37(o)(5)(i). Accordingly, a creditor who 
substituted an incorrect unit-period would not be in compliance with 
Sec.  1026.37(o)(5)(i) and comment 37(o)(5)-1 correctly states that 
such a creditor may lose its protection from civil liability under 
TILA.
    With respect to the requests for guidance regarding additional 
pages, the regulation states whether an additional page is permitted to 
be added to the Loan Estimate for a required disclosure that does not 
fit in the space allocated for it on form H-24 in the specific sub-
section of Sec.  1026.37 or its associated commentary. Otherwise, the 
use of an additional page is not permitted by Sec.  1026.37(o)(3). To 
provide additional clarity, the Bureau is revising comment 37(o)(5)-5 
to state that additional pages may be required or permitted by specific 
disclosure requirements in Sec.  1026.37, and not only by Sec.  
1026.37(o)(5).
    The Bureau received comments that the proposed Loan Estimate would 
not perform well for transactions without a seller, such as 
refinancings. For reasons discussed in the section-by-section analysis 
of Sec.  1026.37(d)(2) and (h)(2), the Bureau is making certain changes 
to form H-24 for transactions without a seller. Those changes permit 
disclosure in transactions without sellers of alternative tables 
described in Sec.  1026.37(d)(2) and (h)(2) which are tailored for 
transactions without sellers, instead of the information required by 
Sec.  1026.37(d)(1) and (h)(1), respectively. Such alternative tables 
would be permitted under Sec.  1026.37(o) because they are permitted 
under Sec.  1026.37(d) and (h).
    For the reasons discussed and pursuant to the legal authority 
discussed in the proposal and above, the Bureau is adopting Sec.  
1026.37(o)(5)(i), (iii), (iv), and (vi) as proposed. The Bureau is not 
finalizing Sec.  1026.37(o)(5)(ii) because final Sec.  
1026.37(g)(6)(ii) requires that the amount of lender credits be left 
blank if no such amount is disclosed, as discussed in the section-by-
section analysis of Sec.  1026.37(g)(6) above. Accordingly, the Bureau 
is renumbering proposed Sec.  1026.37(o)(5)(vi) as Sec.  
1026.37(o)(5)(ii), and modifying the provision to provide additional 
clarity regarding the modifications permitted to form H-24 to 
accommodate the translation into a language other than English. Final 
Sec.  1026.37(o)(5)(ii) permits creditors to modify form H-24 to the 
extent that translation prevents the headings, labels, designations, 
and required disclosure items under Sec.  1026.37 from fitting in the 
space provided on form H-24. The Bureau is also adding comment 
37(o)(5)-6 to provide additional guidance regarding the modifications 
to form H-24 that are permitted to accommodate translation of the Loan 
Estimate into languages other than English.
    The Bureau is adopting Sec.  1026.37(o)(5)(v) as revised to permit 
disclosure of administrative information at the bottom of form H-24. 
The Bureau is further adopting, for the reasons discussed, comment 
37(o)(5)-3 as proposed. The Bureau is not adopting proposed comment 
37(o)(5)-4 because it is redundant to the guidance provided in final 
comment 37(n)-2. The Bureau is adopting comment 37(o)(5)-1 
substantially as proposed, with minor modifications for clarity. The 
Bureau is revising proposed comment 37(o)(5)-2 to delete the reference 
to proposed Sec.  1026.25 because the Bureau is not finalizing that 
provision requiring retention of evidence of compliance in an 
electronic, machine readable format, as described in the section-by-
section analysis of Sec.  1026.25, but is otherwise adopting comment 
37(o)(5)-2 as proposed. The Bureau is adopting comment 37(o)(5)-5 as 
revised to clarify, for the reasons discussed above, how additional 
pages are permitted to be appended to the Loan Estimate. The Bureau is 
also adding final comment 37(o)(5)-4 to provide additional guidance 
regarding the modification of unit-periods disclosed on the Loan 
Estimate, and to clarify that the term ``unit-period'' as used in Sec.  
1026.37 has the same meaning as in appendix J to Regulation Z.

Section 1026.38 Content of Disclosures for Certain Mortgage 
Transactions (Closing Disclosure)

    Proposed Sec.  1026.38 would have set forth the required content of 
the integrated Closing Disclosure, required by proposed Sec.  
1026.19(f) to be provided to a consumer no later than three business 
days prior to consummation.
    As discussed above, the Closing Disclosure would have integrated 
the disclosures currently provided in the RESPA settlement statement 
and the final TILA disclosure. In addition, the Closing Disclosure 
would have integrated several disclosures, including new disclosures 
under the Dodd-Frank Act, that otherwise would likely have been 
provided separately. The Bureau stated in the proposal that it believed 
that the five-page Closing Disclosure integrates at least nine pages of 
disclosures. Specifically, the proposed Closing Disclosure 
incorporated: (i) Three pages of the RESPA settlement statement; (ii) 
two pages typically used for the final TILA disclosure; (iii) one page 
for the negative amortization statement under TILA section 129C(f), 
which was added by section 1414(a) of the Dodd-Frank Act; (iv) one page 
for the anti-deficiency protection notice under TILA section 
129C(g)(2), which was added by section 1414(c) of the Dodd-Frank Act; 
(v) one page for the partial payment policy disclosure under TILA 
section 129C(h), which was added by section 1414(d) of the Dodd-Frank 
Act; and (vi) one page for the escrow account disclosures under TILA 
sections 129D(h) and (j)(1)(A), which were added by sections 1461 and 
1462 of the Dodd-Frank Act. In addition, the Closing Disclosure would 
have incorporated the disclosure of: (i) The total interest percentage 
under TILA section 128(a)(19), which was added by section 1419 of the 
Dodd-Frank Act; (ii)

[[Page 79999]]

the approximate amount of the wholesale rate of funds in connection 
with the loan under TILA section 128(a)(17), which was added by section 
1419 of the Dodd-Frank Act; and (iii) the aggregate amount of 
settlement charges for all settlement services provided in connection 
with the loan and the aggregate amount of other fees or required 
payments in connection with the loan under TILA section 128(a)(17), 
which was added by section 1419 of the Dodd-Frank Act. In absence of 
the Bureau's integration of the final TILA disclosure and the RESPA 
settlement statement, these disclosures would have been added to the 
final TILA disclosure, which potentially could have increased that 
disclosure's typical two pages to three pages.
    The Bureau received numerous comments from industry and consumer 
groups related generally to the design of the proposed integrated 
disclosures, which are discussed with respect to the section-by-section 
analysis of Sec.  1026.37. Specifically with respect to the design of 
the Closing Disclosure, the Bureau also received comments both 
criticizing and praising the proposed format. For example, a national 
title company commented that the proposed Closing Disclosure clearly 
addresses the most important questions consumers ask at the closing 
table and gives consumers an informative snapshot of their transaction. 
An independent title agent commented that the design of the proposed 
Closing Disclosure was easy to read. In contrast, a title insurance 
company commented that the Closing Disclosure is too long and overly 
complicated. Similarly, an individual title attorney commented that she 
saw no difference in the quality of information provided to consumers 
in the proposed Closing Disclosure as compared to the RESPA settlement 
statement and final TILA disclosure.
    Proposed Sec.  1026.38 would have provided that the information set 
forth in Sec.  1026.38(a) through (s) shall be disclosed ``as 
applicable.'' The Bureau also proposed comment 38-1 to clarify that a 
disclosure that is not applicable to a transaction generally may be 
eliminated entirely or may be included but marked ``not applicable'' or 
``N/A.'' The Bureau further proposed comment 38-2 to cross-reference 
Sec.  1026.38(t) for permissible modifications to the format of the 
disclosures. The Bureau received numerous comments from industry and 
consumer advocacy groups related to the design of certain required 
disclosures, which are discussed in their respective section-by-section 
analyses. As discussed more fully in the section-by-section analysis of 
Sec.  1026.37, the Bureau received many comments that expressed 
confusion over whether inapplicable disclosures could be eliminated. In 
response to those comments, the Bureau is revising Sec.  1026.38 to 
delete the phrase ``as applicable.'' The Bureau is further revising 
comment 38-1 to clarify that disclosures not applicable may be left 
blank, but that ``N/A'' or ``not applicable'' may not be used and form 
H-25 may not be modified. Accordingly, disclosures may not be deleted 
from form H-25 unless otherwise provided under Sec.  1026.38. The 
Bureau is adopting comment 38-2 as proposed. The Bureau is also adding 
comment 38-3 to clarify that the creditor is required to disclose the 
actual terms and costs but can disclose estimates under certain 
circumstances when the actual term or cost is unknown.
38(a) General Information
    As with the Loan Estimate in proposed Sec.  1026.37(a), the Bureau 
proposed to use its authority under TILA section 105(a), and its 
authority under RESPA section 19(a), Dodd-Frank Act sections 1032(a) 
and (f), 1098, and 1100A, and for residential mortgage loans, Dodd-
Frank Act section 1405(b), to combine and modify disclosures and 
related requirements currently provided under Regulations X and Z and 
add additional disclosures in the Closing Disclosure for transactions 
subject to proposed Sec.  1026.19(f).
    The Bureau received a comment from a GSE requesting that the Bureau 
require additional information to be disclosed under Sec.  1026.38(a). 
The GSE requested that the Closing Disclosure include a disclosure of 
the date on which the consumer's interest rate was locked, similar to 
the disclosure on the Loan Estimate required by Sec.  1026.37(a)(13), 
which states the date the consumer's locked interest rate will expire. 
The GSE argued that such a statement on the Closing Disclosure would 
allow consumers to confirm that the rate they received at closing was 
locked on the date stated on the Loan Estimate and would provide 
lenders and investors with important data for compliance purposes. The 
Bureau does not believe that such a disclosure would benefit consumers 
given that a consumer could easily review the Loan Estimate to recall 
the date on which the interest rate was locked. Section 
1026.19(e)(3)(iv)(D) of this final rule requires a revised Loan 
Estimate to be provided to the consumer on the date the interest rate 
is locked. To prevent potential information overload for the consumer, 
the Bureau declines to add such a disclosure.
    The Bureau did not receive any other comments on proposed Sec.  
1026.38(a) and is adopting it as proposed, pursuant to the legal 
authority discussed above and in the proposal. The specific disclosures 
required by Sec.  1026.38 are discussed below.
38(a)(1) Form Title
    Like the integrated disclosure provided three business days after 
application, TILA, RESPA, and the Dodd-Frank Act do not expressly 
prescribe a title for the form that must be provided in connection with 
a settlement. RESPA refers to the form as the ``uniform settlement 
statement,'' although Sec.  1024.8 of Regulation X uses the titles HUD-
1 and HUD-1A to refer to the forms used to document settlement charges 
in connection with the purchase of a property or refinancing of an 
existing mortgage loan, respectively. Regulation Z, however, does not 
prescribe a title for the disclosures that must be provided to the 
consumer three business days prior to consummation.
    Proposed Sec.  1026.38(a)(1) would have required the creditor to 
use the term ``Closing Disclosure'' as the name of the integrated 
disclosures provided to consumers three business days prior to 
consummation pursuant to proposed Sec.  1026.19(f). The Bureau stated 
its belief in the proposal that the adoption of a standardized form 
name will effectuate the purposes of TILA and RESPA by promoting the 
informed use of credit and more effective advance notice of settlement 
costs, consistent with TILA section 105(a) and RESPA section 19(a), and 
will ensure that the features of the transaction are fully, accurately, 
and effectively disclosed to consumers in a manner that permits 
consumers to better understand the costs, benefits, and risks 
associated with mortgage transactions in light of the facts and 
circumstances, consistent with Dodd-Frank Act section 1032(a). In 
addition, the Bureau stated in the proposal that it believed the use of 
standard terminology for the integrated disclosures will facilitate 
compliance for industry, which is a purpose of this rulemaking under 
Dodd-Frank Act sections 1098 and 1100A. The Bureau also stated its 
belief in the proposal that, consistent with section 1405(b) of the 
Dodd-Frank Act, the requirement of a standard form name may improve 
consumer awareness and understanding of transactions involving 
residential mortgage loans through the use of disclosures, and is in 
the interest of consumers and in the public interest.
    The Bureau did not receive any public comments regarding proposed 
Sec.  1026.38(a)(1). Because the Bureau

[[Page 80000]]

continues to believe that a standard form title will serve to 
effectuate the purposes of TILA and RESPA, it is adopting Sec.  
1026.37(a)(1) as proposed.
38(a)(2) Form Purpose
    Proposed Sec.  1026.38(a)(2) would have required the creditor to 
include a statement regarding the purpose of the Closing Disclosure. 
Specifically, proposed Sec.  1026.38(a)(2) would have required 
creditors to provide the following statement: ``This form is a 
statement of final loan terms and closing costs. Compare this document 
with your Loan Estimate.'' As noted in the proposal, providing the 
purpose of the Closing Disclosure is a new requirement, as neither 
creditors nor settlement agents are currently required to provide this 
type of information in the disclosures required by TILA, RESPA, and 
their implementing regulations. Nonetheless, the Bureau stated its 
belief in the proposal that this disclosure will benefit consumers and 
promote the informed use of credit by encouraging consumers to use both 
the Loan Estimate and Closing Disclosure as tools to identify changes 
in costs and terms that may have occurred after issuance of the Loan 
Estimate. Accordingly, the Bureau believed, as stated in the proposal, 
that this disclosure will benefit consumers and effectuate the purposes 
of TILA and RESPA by promoting the informed use of credit and more 
effective advance notice of settlement costs, consistent with TILA 
section 105(a) and RESPA section 19(a), and will ensure that the 
features of the transaction are fully, accurately, and effectively 
disclosed to consumers in a manner that permits consumers to better 
understand the costs, benefits, and risks associated with mortgage 
transactions, in light of the facts and circumstances, consistent with 
Dodd-Frank Act section 1032(a).
    A national title insurance company commented that because the 
closing cost details disclosed on the Closing Disclosure may change 
between delivery of the Closing Disclosure and consummation of the 
transaction, the statement should be preceded by the phrase ``subject 
to certain limited exceptions.'' Several national trade associations 
representing mortgage lenders commented that the statement should 
direct consumers to compare it to their ``most recent'' Loan Estimate 
given that a consumer may receive more than one Loan Estimate. A 
national trade association representing developers of timeshares 
commented that the statement should not reference comparison to the 
Loan Estimate since the Loan Estimate should not be provided in 
timeshare transactions.
    With respect to the suggestion to include the phrase ``subject to 
certain limited exceptions,'' the Bureau believes adding that phrase 
would overly complicate the form purpose statement. The statement was 
designed to use plain language to describe the general difference 
between the Loan Estimate and Closing Disclosure. With respect to 
timeshares, final comment 19(e)(1)(iii)-4 permits creditors in 
timeshare transactions to omit provision of the Loan Estimate and 
provide only the Closing Disclosure where the transaction is 
consummated within three business days of receipt of the consumer's 
application. The Bureau does not believe that the disclosure required 
by Sec.  1026.37(a)(2) should be modified because the timeshare 
creditors can adequately explain to consumers at consummation why they 
were not required to receive the Loan Estimate in those transactions. 
The Bureau believes the statement will be just as useful to consumers 
of transactions secured by a consumer's interest in a timeshare plan 
where consummation occurs after the third business day from receipt of 
the consumer's application as it will be for consumers in transactions 
secured by real property. Accordingly, the Bureau declines to revise 
Sec.  1026.37(a)(2) and is adopting it as proposed, pursuant to the 
legal authority described above and in the proposal.
38(a)(3) Closing Information
    Appendix A to Regulation X currently requires the settlement agent 
to include in the RESPA settlement statement basic information about 
the settlement process, including the name of the settlement agent, the 
place of settlement, the property location, and the settlement date. In 
addition to this information, with the exception of the place of 
settlement, proposed Sec.  1026.38(a)(3) would have required creditors 
to disclose: (1) the date the Closing Disclosure is issued; (2) the 
dates funds are disbursed to the seller and consumer, as applicable; 
(3) the sale price of the property that is the subject of the 
transaction; and (4) the file number assigned to the transaction by the 
closing agent. All of the aforementioned information would be located 
under the heading ``Closing Information.'' The Bureau stated its belief 
in the proposal that this information and the additional information 
discussed below effectuate the purposes of TILA and RESPA by promoting 
the informed use of credit and more effective advance notice of 
settlement costs, consistent with TILA section 105(a) and RESPA section 
19(a), and will ensure that the features of the transaction are fully, 
accurately, and effectively disclosed to consumers in a manner that 
permits consumers to better understand the costs, benefits, and risks 
associated with mortgage transactions, in light of the facts and 
circumstances, consistent with Dodd-Frank Act section 1032(a). The 
Bureau did not receive any comments on Sec.  1026.38(a)(3) and is 
adopting it as proposed, pursuant to the legal authority described 
above and in the proposal. The specific requirements of the disclosure 
proposed in Sec.  1026.38(a)(3) will be discussed below.
38(a)(3)(i) Date Issued
    Proposed Sec.  1026.38(a)(3)(i) would have required the creditor to 
disclose the date the disclosures required for transactions subject to 
Sec.  1026.19(f) are issued to the consumer, labeled ``Date Issued.'' 
Proposed comment Sec.  1026.38(a)(3)(i)-1 would have cross-referenced 
the commentary to proposed Sec.  1026.37(a)(4).
    A document preparation company commenter requested guidance on 
whether to disclose the date the form is printed or the date the form 
is mailed to the consumer. A national settlement company requested 
guidance on which date to disclose if the Closing Disclosure is printed 
at settlement or is printed after consummation for a purpose other than 
providing notice to the consumer. The same commenter also suggested 
that the Bureau add a space for disclosure of the time the disclosure 
is issued to the consumer, in the event that a creditor delivers more 
than one disclosure to a consumer in one day.
    Regarding which date to disclose on the Closing Disclosure, as 
stated in proposed comment 37(a)(4)-1, the date issued is the date the 
form is delivered to the consumer, regardless of the method of 
delivery. In response to the request for guidance on how to disclose 
the date of a form printed after consummation, under Sec.  
1026.38(a)(3)(i), the Bureau believes that the regulation text is clear 
that the date to be disclosed is the date of delivery, regardless of 
whether it is printed after consummation for some other purpose. 
Lastly, with respect to the suggestion to permit disclosure of the time 
the Closing Disclosure is printed, while the Bureau understands that 
there may be instances in which a Closing Disclosure is revised and 
delivered to the consumer more than once in a single day, the Bureau 
believes that including the time may result in information overload and 
that consumers in most cases would only need to know the date the 
Closing

[[Page 80001]]

Disclosure was issued. Accordingly, the Bureau is adopting Sec.  
1026.38(a)(3)(i) and comment 38(a)(3)(i)-1 as proposed.
38(a)(3)(ii) Closing Date
    Proposed Sec.  1026.38(a)(3)(ii) would have required the creditor 
to disclose the consummation date for the mortgage loan transaction, 
labeled ``Closing Date.'' A national settlement company and a large 
bank both commented that the consummation date can only be an estimate 
at the time the Closing Disclosure is delivered, especially given the 
consumers right to waive the three-day waiting period between delivery 
of the Closing Disclosure and consummation under limited circumstances. 
The commenters requested that Sec.  1026.38(a)(3)(ii) expressly permit 
disclosure of an estimated consummation date.
    The commenters are correct that given the requirement that the 
Closing Disclosure be provided so that it is received by the consumer 
three days before consummation under Sec.  1026.19(f)(1)(ii), the 
consummation date may, in some transactions, change after the delivery 
of the Closing Disclosure. However, Sec.  1026.19(f)(1)(i) requires 
creditors to use the best information reasonably available to them to 
complete the Closing Disclosure and thus, the closing date disclosed 
under Sec.  1026.38(a)(3)(ii) would be based on that best information. 
Moreover, under the requirements of Sec.  1026.19(f)(2), if the 
disclosure previously provided becomes inaccurate, the creditor would 
be required to deliver a revised Closing Disclosure at consummation and 
the revised Closing Disclosure would therefore disclose the actual 
consummation date. Accordingly, either consummation of the transaction 
will occur on the date the creditor initially disclosed and be 
accurate, or the creditor will be required to revise the Closing 
Disclosure to reflect the date on which consummation actually occurs. 
In either case, the Closing Disclosure will reflect the actual date of 
consummation and not an estimate. Accordingly, the Bureau is adopting 
Sec.  1026.38(a)(3)(ii) as proposed. Section Sec.  1026.38(a)(3)(ii) 
requires disclosure of the date of consummation of the transaction. 
Current Sec.  1026.2(a)(13) defines ``consummation'' for purposes of 
Regulation Z as ``the time that a consumer becomes contractually 
obligated on a credit transaction.'' See commentary to Sec.  
1026.2(a)(13) for additional guidance regarding the definition of 
consummation.
38(a)(3)(iii) Disbursement Date
    Proposed Sec.  1026.38(a)(3)(iii) would have required the 
disclosure of the date the amounts disclosed pursuant to proposed Sec.  
1026.38(j)(3)(iii) and (k)(3)(iii) are expected to be paid to the 
consumer and seller, respectively, labeled ``Disbursement Date.'' A 
large bank commenter noted that because the consumer has the right, 
under limited circumstances, to waive the three-day waiting period 
between delivery of the Closing Disclosure and the closing, the 
disbursement date is necessarily an estimate and should be labeled 
``Estimated Disbursement Date.'' The Bureau notes that under Sec.  
1026.19(f)(1)(i), creditors are required to disclose the actual terms 
of the legal obligation, but where such information is not known to the 
creditor, creditors must disclose the best information reasonably 
available. Accordingly, under Sec.  1026.38(a)(3)(iii), creditors may 
disclose the date the funds are expected to be paid to the consumer and 
seller using the best information reasonably available regarding such 
date. See the section-by-section analysis of Sec.  1026.19(f)(1)(i) and 
its commentary for further discussion regarding the labeling of 
estimates on the Closing Disclosure. Accordingly, the Bureau declines 
to add the word ``estimated'' to the label ``Disbursement Date.'' The 
Bureau is adopting Sec.  1026.38(a)(3)(iii) substantially as proposed, 
but is modifying the provision to provide additional clarity regarding 
the required disclosure in transactions that are not purchase 
transactions under Sec.  1026.37(a)(9). In such non-purchase 
transactions, creditors are required to disclose the date the amounts 
disclosed pursuant to Sec.  1026.38(j)(2)(iii) or (t)(5)(vii)(B) are 
expected to be paid to the consumer or a third party.
38(a)(3)(iv) Settlement Agent
    Proposed Sec.  1026.38(a)(3)(iv) would have required disclosure of 
the identity of the settlement agent conducting the closing, labeled 
``Agent.'' Proposed comment 38(a)(3)(iv)-1 would have clarified that 
the name of the agency that employs the settlement agent should be 
provided in the disclosure required by Sec.  1026.38(a)(3)(iv) and that 
the name of the individual conducting the closing is not required. 
Several industry commenters noted in response to the proposal that the 
label ``Agent'' was unclear given the numerous types of agents involved 
in a real estate transaction. In addition, GSE commenters noted that 
the proposal used the term ``Settlement Agent'' in the contact 
information table required under proposed Sec.  1026.38(r), in contrast 
with the label proposed under Sec.  1026.38(a)(3)(iv). The Bureau 
agrees that the label ``Agent'' was not sufficiently specific and did 
not conform with the contact information table in the proposed Closing 
Disclosure. Accordingly, the Bureau is revising the label for the 
disclosure required by Sec.  1026.38(a)(3)(iv) to ``Settlement Agent,'' 
to improve the consistency and clarity of the Closing Disclosure. The 
Bureau is also revising final comment 38(a)(3)(iv)-1 to reflect the 
label ``Settlement Agent'' and to refer to the entity employing the 
settlement agent, rather than the agency, such that the term will cover 
settlement agents that are employed by entities that are not title 
insurance agents, such as law firms.
38(a)(3)(v) File Number
    Proposed Sec.  1026.38(a)(3)(v) would have required disclosure of 
the number assigned to the transaction by the closing agent for 
identification purposes, labeled ``File .'' A national 
settlement company requested that the Bureau add ``Settlement'' before 
the proposed label ``File '' to clarify whose file number is 
disclosed on the Closing Disclosure. Because the file number disclosure 
is directly below the Settlement Agent disclosure on the Closing 
Disclosure, the Bureau believes that consumers will understand that the 
file number being disclosed is that of the Settlement Agent. Moreover, 
Sec.  1026.38(a)(5)(v) requires that the creditor separately disclose 
its own loan identification number, under the label ``Loan ID 
'' which further clarifies that the file number referred to on 
form H-25 is the settlement agent's. Accordingly, the Bureau is 
adopting Sec.  1026.38(a)(3)(v) as proposed. The Bureau is also adding 
comment 38(a)(3)(v)-1 to clarify that the file number may contain any 
alpha-numeric characters and need not be limited to numbers.
38(a)(3)(vi) Property
    Proposed Sec.  1026.38(a)(3)(vi) would have required the street 
address of the property required to be disclosed under proposed Sec.  
1026.37(a)(6), labeled ``Property.'' Proposed comment 38(a)(3)(iv)-1 
would have cross-referenced the commentary to Sec.  1026.37(a)(6), 
which provides guidance regarding the information that must be provided 
in response to this requirement when a standard property address is 
unavailable. A GSE commenter requested guidance on how to disclose 
personal property that secures a transaction under proposed

[[Page 80002]]

Sec.  1026.38(a)(3)(vi). That comment is addressed in the section-by-
section analysis of Sec.  1026.37(a)(6), in response to which the 
Bureau added comment 37(a)(6)-2 to provide that where personal property 
secures a transaction, a description of the personal property may be 
disclosed to the extent that it fits on the space provided for the 
disclosure on form H-24 for the Loan Estimate. The Bureau is adopting 
Sec.  1026.38(a)(3)(vi) and comment 38(a)(3)(vi)-1 substantially as 
proposed but with modifications to clarify that, unlike with respect to 
the disclosure of personal property in connection with the Loan 
Estimate, personal property securing the transaction may be disclosed 
if it does not fit within the space provided on form H-25 by using an 
addendum to form H-25 for the Closing Disclosure. The Bureau believes 
that in connection with the consummation of the transaction, the 
consumer should be provided with this information to understand the 
final loan terms and costs of the transaction.
38(a)(3)(vii) Sale Price
    In credit transactions where there is a seller, proposed Sec.  
1026.38(a)(3)(vii)(A) would have required disclosure of the contract 
sale price for the property identified in proposed Sec.  
1026.38(a)(3)(vii), labeled ``Sale Price.'' In transactions where there 
is no seller, proposed Sec.  1026.38(a)(3)(vii)(B) would have required 
disclosure of the appraised value of the property in proposed Sec.  
1026.38(a)(3)(vi), labeled ``Appraised Prop. Value.'' Proposed comment 
38(a)(3)(vii)-1 also would have provided that when there is no seller 
that is a party to the transaction, the value to be disclosed is that 
determined by the appraisal or valuation used to determine approval of 
the credit transaction, or if a more recent appraisal or valuation has 
been obtain by the creditor, the value determined by the more recent 
appraisal or valuation.
    The Bureau did not receive any comments on proposed Sec.  
1026.38(a)(3)(vii)(A) and is adopting it as proposed. Several national 
trade associations representing mortgage lenders commented that in 
transactions without a seller, such as a refinance transaction, an 
appraisal is not always obtained and that Sec.  1026.38(a)(3)(vii)(B) 
should permit disclosure of an estimated property value. A GSE 
commented that the value that should be disclosed is the one used for 
underwriting, regardless of whether there is a subsequent appraisal. 
The GSE commenter noted that other fees disclosed on the Closing 
Disclosure, such as mortgage insurance and loan level pricing 
adjustments, are tied to the loan-to-value ratio which is, in turn, 
determined by the value used for underwriting. The commenter stated 
that disclosing a value different than the one used for underwriting 
would render the disclosures on the Closing Disclosure misaligned and 
cause confusion for consumers and creditors. A GSE also requested 
guidance on whether to disclose the value of personal property in 
transactions where such property is valued separately from real 
property.
    With respect to refinance transactions where an appraisal may not 
be obtained, the Bureau agrees that disclosing an estimated property 
value is permissible where an appraisal is not obtained and is revising 
comment 38(a)(3)(vii)-1 to permit disclosure of an estimated property 
value if the creditor has not obtained an appraisal. Revised comment 
38(a)(3)(vii)-1 further provides that where an estimate, rather than an 
appraisal, is used, the label for the disclosure would be changed to 
``Estimated Prop. Value.''
    Regarding the GSE's comment that the value disclosed should be the 
one used for underwriting, the Bureau agrees that the value disclosed 
on the Closing Disclosure should be the one used for underwriting for 
the reasons suggested by the commenter. Accordingly, the Bureau is 
further revising comment 38(a)(3)(vii)-1 to revise the description of 
the requirement to disclose the most recent appraisal or valuation and 
clarify that Sec.  1026.38(a)(3)(vii) requires disclosure of the 
appraisal or estimate used to determine approval of the credit 
transaction. Regarding the GSE's request for guidance on the disclosure 
of personal property, the Bureau addresses that comment in the section-
by-section analysis of Sec.  1026.37(a)(7), above. The Bureau added 
comment 37(a)(7)-2 to clarify that where personal property is included 
in the sale price of real property Sec.  1026.37(a)(7) permits 
disclosure of the aggregate price without any reduction for the 
appraised or estimated value of the real property. The Bureau is adding 
comment 38(a)(3)(vii)-2 to cross-reference the guidance provided in 
comment 37(a)(7)-2 regarding the disclosure of personal property.
38(a)(4) Transaction Information
    Proposed Sec.  1026.38(a)(4) would have required the creditor to 
disclose the names and addresses of the parties to the transaction: the 
borrower, seller, and lender, as applicable. This information would 
appear under the heading ``Transaction Information.'' As noted in the 
proposal, these disclosures are currently provided in the RESPA 
settlement statement. See appendix A to Regulation X. In addition, TILA 
section 128(a)(1) and Regulation Z Sec.  1026.18(a) require disclosure 
of the identity of the creditor. The Bureau stated its belief in the 
proposal that these disclosures effectuate the purposes of TILA and 
RESPA by promoting the informed use of credit and more effective 
advance notice of settlement costs, consistent with TILA section 105(a) 
and RESPA section 19(a), and will ensure that the features of the 
transaction are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to better understand the 
costs, benefits, and risks associated with mortgage transactions, in 
light of the facts and circumstances, consistent with Dodd-Frank Act 
section 1032(a). Proposed comment 38(a)(4)-1 would have clarified that 
the name and address for each consumer and seller must be provided and 
referred creditors to the commentary to proposed Sec.  1026.37(a)(5) 
for further guidance. Proposed comment 38(a)(4)-1 also would have 
clarified that the name and address of each consumer must be provided 
and that if the form does not provide enough space to include the 
required information for each seller, an additional page with that 
information may be appended to the end of the form, provided the 
creditor is in compliance with proposed Sec.  1026.38(t)(3). Proposed 
comment 38(a)(4)-1 also would have cross-referenced commentary to Sec.  
1026.37(a)(5) for guidance on how to disclose multiple borrowers. 
Proposed comment 38(a)(4)-2 would have clarified that, in transactions 
where there is no seller such as in a refinancing or home equity loan, 
the creditor must provide the name of the person or persons primarily 
liable under the obligation or who have a right of rescission. Finally, 
proposed comment 38(a)(4)-3 would have cross-referenced the commentary 
to proposed Sec.  1026.37(a)(3) for information regarding the 
identification of multiple creditors.
    A GSE commented that the heading ``Transaction Information'' is 
misleading because the information disclosed relates only to the 
parties to the transaction. Two document preparation company commenters 
requested guidance on who meets the definition of ``creditor'' and is 
therefore required to be disclosed under proposed Sec.  1026.38(a)(4).
    With respect to the heading ``Transaction Information,'' as 
discussed elsewhere in this section-by-section analysis, the Bureau 
extensively tested the integrated disclosures with

[[Page 80003]]

consumers and found no evidence that consumers were confused by this 
heading. Accordingly, the Bureau declines to revise the heading 
``Transaction Information'' required under Sec.  1026.38(a)(4). 
Regarding the request for guidance on which creditor is required to be 
disclosed, the definition of ``creditor'' is addressed by Sec.  
1026.2(a)(17) and its accompanying commentary. The Bureau notes that 
comment 38(a)(4)-3 cross-references Sec.  1026.37(a)(3) and its 
commentary for guidance. The Bureau also notes the existing guidance 
regarding transactions with multiple creditors under comment 17(d)-1 
which is cross-referenced in commentary to Sec.  1026.37(a)(3), and 
therefore believes adequate guidance is provided in the regulation as 
proposed. Because the Bureau continues to believe that disclosing the 
described transaction information will effectuate the purposes of TILA 
and RESPA, it is adopting Sec.  1026.38(a)(4) as proposed. The Bureau 
did not receive any comments on comments 38(a)(4)-1 through -3 and is 
adopting them substantially as proposed but with minor modifications 
for clarity.
38(a)(5) Loan Information
    Proposed Sec.  1026.38(a)(5) would have required the creditor to 
provide certain information about the mortgage loan that is the subject 
of the transaction. With the exception of the mortgage insurance case 
number required by proposed Sec.  1026.38(a)(5)(vi), all of the 
disclosures required under proposed Sec.  1026.38(a)(5) mirror the 
disclosures required by proposed Sec.  1026.37(a)(8) through (12). In 
the proposal, the Bureau stated its belief that these disclosures 
effectuate the purposes of TILA and RESPA by promoting the informed use 
of credit and more effective advance notice of settlement costs, 
consistent with TILA section 105(a) and RESPA section 19(a), and will 
ensure that the features of the transaction are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to better understand the costs, benefits, and risks associated with 
mortgage transactions, in light of the facts and circumstances, 
consistent with Dodd-Frank Act section 1032(a).
    Proposed comment 38(a)(5)-1 would have referred the creditor to the 
commentary to proposed Sec.  1026.37(a)(8) through (12) for further 
guidance on the general requirements and definitions applicable to 
proposed Sec.  1026.38(a)(5)(i) through (v). The disclosures required 
by proposed Sec.  1026.38(a)(5) appear under the heading ``Loan 
Information.'' Comments received in relation to the disclosures 
required by Sec.  1026.37(a)(8) through (12) that are mirrored in Sec.  
1026.38(a)(5) are addressed in the section-by-section analyses of Sec.  
1026.37(a)(8) through (12). The Bureau did not receive any comments on 
proposed Sec.  1026.38(a)(5) and comment 38(a)(5)-1 and is adopting 
them as proposed.
38(a)(5)(i) Loan Term
    Proposed Sec.  1026.38(a)(5)(i) would have required disclosure of 
the term of the loan, consistent with proposed Sec.  1026.37(a)(8) and 
labeled ``Loan Term.'' The Bureau did not receive any comments 
regarding Sec.  1026.38(a)(5)(i) not already discussed in the section-
by-section analysis of Sec.  1026.37(a)(8). The Bureau continues to 
believe Sec.  1026.38(a)(5)(i) will effectuate the purposes of TILA and 
RESPA and is adopting Sec.  1026.38(a)(5)(i) as proposed.
38(a)(5)(ii) Purpose
    Proposed Sec.  1026.38(a)(5)(ii) would have required disclosure of 
the purpose of the loan, consistent with proposed Sec.  1026.37(a)(9) 
and labeled ``Purpose.'' The Bureau did not receive any comments 
regarding Sec.  1026.38(a)(5)(ii) not already discussed in the section-
by-section analysis of Sec.  1026.37(a)(9) and continues to believe 
that Sec.  1026.38(a)(5)(ii) will effectuate the purposes of TILA and 
RESPA. Accordingly, the Bureau is adopting Sec.  1026.38(a)(5)(ii) as 
proposed.
38(a)(5)(iii) Product
    Proposed Sec.  1026.38(a)(5)(iii) would have required disclosure of 
the loan product, consistent with proposed Sec.  1026.37(a)(10) and 
labeled ``Product.'' The Bureau did not receive any comments regarding 
Sec.  1026.38(a)(5)(iii) not already discussed in the section-by-
section analysis of Sec.  1026.37(a)(10) and continues to believe that 
Sec.  1026.38(a)(5)(iii) will effectuate the purposes of TILA and 
RESPA. Accordingly, the Bureau is adopting Sec.  1026.38(a)(5)(iii) as 
proposed.
38(a)(5)(iv) Loan Type
    Proposed Sec.  1026.38(a)(5)(iv) would have required disclosure of 
the loan type, consistent with proposed Sec.  1026.37(a)(11) and 
labeled ``Loan Type.'' The Bureau did not receive any comments 
regarding Sec.  1026.38(a)(5)(iv) not already discussed in the section-
by-section analysis of Sec.  1026.37(a)(11) and continues to believe 
that Sec.  1026.38(a)(5)(iv) will effectuate the purposes of TILA and 
RESPA. Accordingly, the Bureau is adopting Sec.  1026.38(a)(5)(iv) as 
proposed.
38(a)(5)(v) Loan Identification Number
    Proposed Sec.  1026.38(a)(5)(v) would have required disclosure of 
the loan identification number, consistent with Sec.  1026.37(a)(12) 
and labeled ``Loan ID .'' Comments received in relation to the 
loan identification number disclosure generally are discussed in the 
section-by-section analysis of Sec.  1026.37(a)(12). One document 
preparation company commenter requested that the disclosure of the loan 
identification number on the Closing Disclosure be permitted to differ 
from that on the Loan Estimate because the identifying number used may 
be one used by the settlement company, rather than the lender.
    Notwithstanding the fact that a settlement company may use an 
identification number for a transaction that differs from that used by 
the creditor, the Bureau believes that disclosing the same 
identification number on the Loan Estimate and the Closing Disclosure 
is beneficial for consumers who wish to compare the Closing Disclosure 
to the Loan Estimate. The settlement company would not be required, 
however, to use the identification number disclosed on the Loan 
Estimate and the Closing Disclosure in its own systems and can list its 
identification number under Sec.  1026.38(a)(3)(v).
    The Bureau continues to believe that disclosure of a loan 
identification number will promote the informed use of credit, and 
accordingly, is adopting Sec.  1026.38(a)(5)(v) as proposed. The Bureau 
is also adding comment 38(a)(5)(v)-1 to clarify that the identification 
number disclosed on the Closing Disclosure must be one that enables the 
creditor, consumer, and other parties to identify the transaction as 
the same transaction that was disclosed on the Loan Estimate under 
Sec.  1026.37. The Bureau has also clarified in the comment that the 
loan identification number may contain any alpha-numeric character, 
which means that the identification number need not be limited to 
numbers.
38(a)(5)(vi) Mortgage Insurance Case Number
    The mortgage insurance case number currently is disclosed in 
section B of the RESPA settlement statement. See appendix A to 
Regulation X. Proposed Sec.  1026.38(a)(5)(vi) would have incorporated 
this disclosure into the Closing Disclosure, labeled ``MIC .'' 
A national settlement company commented that the label ``MIC 
'' would be confusing to consumers. The Bureau extensively 
tested the integrated disclosures with consumers and did not

[[Page 80004]]

find that the proposed label ``MIC '' detracted from consumer 
understanding of the loan transactions. The Bureau believes that to the 
extent consumers do not understand the acronym, they can find such 
information from other sources, such as the Bureau's Web site, the 
creditor's or mortgage broker's loan officer, the settlement agent, or 
real estate agents. The Closing Disclosure will contain a statement 
referring consumers to the Bureau's Web site to obtain more information 
next to a graphic depiction of a question mark, which consumer testing 
conducted by the Bureau indicated drew consumers' attention to the 
notice. See Kleimann Testing Report at 224. Accordingly, the Bureau 
believes that consumers will have available information regarding this 
information in the disclosure should they have questions. For the 
aforementioned reasons, the Bureau is adopting Sec.  1026.38(a)(5)(vi) 
as proposed.
38(b) Loan Terms
    For transactions subject to Sec.  1026.19(f), proposed Sec.  
1026.38(b) would have implemented the requirements of TILA section 
128(a)(6), (a)(11), and (b)(2)(C)(ii) by requiring creditors to 
disclose on the Closing Disclosure the table of key loan terms provided 
on the Loan Estimate pursuant to proposed Sec.  1026.37(b). This 
information includes the loan amount; interest rate; periodic principal 
and interest payment; whether the loan amount, interest rate, or 
periodic payment may increase; and whether the loan has a prepayment 
penalty or balloon payment. For a detailed description of the Bureau's 
implementation of these statutory provisions and its legal authority 
for this final rule, see the section-by-section analysis of Sec.  
1026.37(b). The requirements of proposed Sec.  1026.38(b) generally 
would have mirrored those of Sec.  1026.37(b). Proposed comment 38(b)-1 
would have provided a cross-reference to the commentary to Sec.  
1026.37(b) for guidance on the disclosures required by Sec.  
1026.38(b). The Bureau did not receive any comments on proposed Sec.  
1026.38(b) or its associated commentary not already discussed in the 
section-by-section analysis of Sec.  1026.37(b) and is adopting Sec.  
1026.38(b) and its accompanying commentary as proposed.
38(c) Projected Payments
    Proposed Sec.  1026.38(c) would have implemented the requirements 
of TILA section 128(a)(6), (a)(16), (b)(2)(C), and (b)(4) for 
transactions subject to proposed Sec.  1026.19(f), by requiring 
creditors to disclose on the Closing Disclosure the periodic payment or 
range of payments, together with an estimate of the taxes, insurance, 
and assessments and the payments to be made with escrow account funds. 
15 U.S.C. 128(a)(6), (a)(16), (b)(2)(C), (b)(4). The requirements of 
proposed Sec.  1026.38(c) generally would have mirrored those of 
proposed Sec.  1026.37(c), with certain exceptions which are discussed 
below. Accordingly, proposed comment 38(c)-1 would have directed 
creditors to Sec.  1026.37(c) and its commentary for guidance on the 
disclosures required by Sec.  1026.38(c). For a detailed description of 
the Bureau's implementation of these statutory provisions and the 
Bureau's legal authority, see the section-by-section analysis of Sec.  
1026.37(c) above. As discussed below in the section-by-section analysis 
of Sec.  1026.38(t), the items that would have been required to be 
disclosed pursuant to Sec.  1026.38 would have been actual terms and 
costs, as required by proposed Sec.  1026.19(f).
    Proposed Sec.  1026.38(c) would have differed from proposed Sec.  
1026.37(c) in several ways. First, proposed Sec.  1026.38(c)(2) would 
have required an additional reference to the information required by 
proposed Sec.  1026.38(l)(7). The proposal noted the Bureau's belief, 
based on consumer testing, that this additional reference would help 
consumers to understand the specific payment amounts to be made with 
escrow funds and those that must be paid separately by the consumer. 
Second, proposed Sec.  1026.38(c) would have provided different rules 
for estimating escrow payments. As discussed in the section-by-section 
analysis of proposed Sec.  1026.37(c), the Dodd-Frank Act amended TILA 
to add new requirements regarding the disclosure of escrow payments in 
consumer credit transactions secured by a first mortgage on the 
principal dwelling of the consumer, other than an open-end credit plan 
or reverse mortgage. Specifically, TILA section 128(b)(4)(A) provides 
that the disclosures required by TILA section 128(a)(6) must take into 
account the amount of any monthly payment to an escrow account, in 
accordance with section 10(a)(2) of RESPA. 15 U.S.C. 1638(b)(4)(A); 12 
U.S.C. 2609(a)(2). In addition, new TILA section 128(b)(4)(B) generally 
requires creditors to take into account the taxable assessed value of 
the property during the first year after consummation, including the 
value of any improvements constructed or to be constructed on the 
property, if known, and the replacement costs of the property for 
hazard or flood insurance, when disclosing estimated escrow payments 
pursuant to TILA section 128(b)(4)(A). 15 U.S.C. 1638(b)(4)(B). For the 
Loan Estimate provided to consumers near the time of application, 
proposed Sec.  1026.37(c) generally would have incorporated these 
statutory provisions, but would have expanded the requirements to all 
transactions subject to Sec.  1026.37(c). However, the proposal noted 
the Bureau's belief that separate treatment is required for the Closing 
Disclosure because the statutory requirements may conflict with certain 
provisions of Regulation X, which implements the provisions of RESPA 
sections 6(g) and 10, regarding the administration of escrow accounts. 
12 U.S.C. 2605(g), 2609.
    Current Regulation X Sec.  1024.17(c)(7) specifies how a creditor 
conducting an escrow account analysis must estimate disbursement 
amounts. If the creditor knows the charge for a particular escrow item, 
the creditor must use that amount in estimating the disbursement. If 
the charge is unknown, the creditor may base the estimate on the 
preceding year's charge, but may adjust the estimate to account for 
inflation. The Regulation X requirement that the creditor use actual 
charges, if known, in estimating escrow payment amounts may conflict 
with the TILA section 128(b)(4)(B) requirement that the creditor take 
into account the replacement costs of the property for hazard insurance 
when determining the estimated escrow amount. Under the plain language 
of TILA section 128(b)(4)(B), a creditor must base estimated escrows 
for hazard insurance on the replacement costs of the property, even if 
it knows that the actual charges will be different. The proposal noted 
that while the Bureau believes that the TILA requirement for estimating 
escrow payments is appropriate for the Loan Estimate because it 
requires creditors to use a uniform standard for estimates and 
therefore facilitates comparison, the disclosure of actual payment 
amounts, when known, is more appropriate for the Closing Disclosure.
    Accordingly, the Bureau proposed to use its authority under TILA 
section 105(a), Dodd-Frank Act section 1032(a), and, for residential 
mortgage loans, Dodd-Frank Act section 1405(b) to modify the 
requirements of TILA section 128(b)(4)(B) for the estimation of escrow 
payment amounts on the Closing Disclosure. Proposed Sec.  1026.38(c) 
would have provided that, in disclosing estimated escrow payments as 
described in Sec.  1026.37(c)(2)(iii) and (4)(ii), the amount disclosed 
on the Closing Disclosure: (1) for transactions subject to

[[Page 80005]]

RESPA, is determined under the escrow account analysis described in 
Regulation X, 12 CFR 1024.17, and (2) for transactions not subject to 
RESPA, may be determined under the escrow account analysis described in 
Regulation X, 12 CFR 1024.17, or in the manner set forth in Sec.  
1026.37(c)(5). Comment 38(c)(1)-1 would have clarified that the amount 
of estimated escrow payments disclosed on the Closing Disclosure is 
accurate if it differs from the estimated escrow payment disclosed on 
the Loan Estimate due to the escrow account analysis described in 
Regulation X, 12 CFR 1024.17. The Bureau noted its belief that the 
proposed modification would effectuate the purposes of TILA by 
promoting the informed use of credit by allowing disclosure of actual 
escrow amounts for hazard insurance, when known. Additionally, the 
Bureau noted its belief that the proposed modification would ease 
compliance burden for creditors. In particular, permitting creditors in 
transactions not subject to RESPA to rely on the accounting rules 
described in Regulation X, 12 CFR 1024.17, to calculate the escrow 
payment disclosure would avoid requiring creditors to follow a separate 
disclosure requirement for the relatively small number of transactions 
that are subject to TILA but not RESPA. The Bureau also noted that the 
proposed modification will also improve consumer awareness and 
understanding of residential mortgage loans and is in the interest of 
consumers and the public, consistent with Dodd-Frank Act section 
1405(b). The Bureau also noted its belief that the disclosure would 
ensure that the features of consumer credit transactions secured by 
real property are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to understand the costs, 
benefits, and risks associated with the product or service, in light of 
the facts and circumstances, consistent with Dodd-Frank Act section 
1032(a).
    The Bureau received a number of comments on the projected payments 
table from industry and consumer advocacy groups. Those comments are 
generally discussed above in the section-by-section analysis of Sec.  
1026.37(c). The Bureau has considered those comments and made certain 
adjustments to the rules regarding the projected payments table in 
response to those comments and for additional clarity, as discussed 
above. Because the requirements of proposed Sec.  1026.38(c) generally 
would have mirrored those of proposed Sec.  1026.37(c), with certain 
exceptions outlined above, the comments received regarding the 
projected payments table are generally applicable to the projected 
payments table under Sec.  1026.38(c). In addition, one industry trade 
association commenter argued that, unlike the Loan Estimate where 
estimated escrow payments should always be disclosed, loans with no 
escrow account do not need escrow information on a Closing Disclosure.
    For the reasons discussed in the proposed rule, in the section-by-
section analysis of Sec.  1026.37(c), and below, the Bureau is adopting 
Sec.  1026.38(c) as proposed, although the changes to the projected 
payments table described above in the section-by-section analysis of 
Sec.  1026.37(c) also apply Sec.  1026.38(c). The Bureau has considered 
the comment suggesting that loans with no escrow account do not need 
escrow information disclosed on the Closing Disclosure. However, as 
noted above in the section-by-section analysis of Sec.  1026.37(c) and 
in the Kleimann Testing Report, consumer testing indicates that 
consumers view their total monthly payment as a key piece of 
information and that, even where no escrow account is established for 
the payment of taxes and insurance, the Bureau believes that 
information about such costs is an important measure of the consumer's 
ability to afford the transaction. See Kleimann Testing Report at 285. 
Absent such a disclosure, consumers may not fully comprehend the cost 
of their home loan on a periodic basis, and may not be as readily able 
to make an informed decision about whether to proceed with the 
transaction. Accordingly, the final rule requires creditors to disclose 
consumer's taxes, insurance, and assessment information on the table 
required by Sec.  1026.38(c), even where no escrow account for the 
payment of such amounts will be established.
38(d) Costs at Closing
    The Bureau's proposed Sec.  1026.38(d) would have required the 
disclosure of the cash required from the consumer at consummation of 
the transaction, with a breakdown of the amounts of loan costs and 
other costs associated with the transaction under a heading of ``Cash 
to Close.'' Under proposed Sec.  1026.38(d)(1), the dollar amount due 
from the consumer would have been the same amount as calculated in 
accordance with proposed Sec.  1026.38(j)(3)(iii) and would have been 
disclosed under a heading of ``Cash to Close'' and labeled ``Cash to 
Close.'' The total dollar amount of the loan costs to be paid by the 
consumer at closing as calculated under proposed Sec.  1026.38(f)(4) 
would have been disclosed under proposed Sec.  1026.38(d)(2) with a 
description of ``Loan Costs.'' The total dollar amount of the other 
costs to be paid by the consumer at closing as calculated under 
proposed Sec.  1026.38(g)(5) would have been disclosed under proposed 
Sec.  1026.38(d)(3) with a description of ``Other Costs.'' The amount 
of lender credits disclosed under Sec.  1026.38(h)(3) would have been 
disclosed under Sec.  1026.38(d)(4) with a description of ``Lender 
Credits.'' The sum of the amounts disclosed under Sec.  1026.38(d)(2), 
1026.38(d)(3), and 1026.38(d)(4) would have been disclosed with a 
description of ``Closing Costs'' under Sec.  1026.38(d)(5). A statement 
directing the consumer to refer to the tables required under Sec.  
1026.38(f) and (g) for more details would have been required under 
Sec.  1026.38(d)(6).
    As more fully discussed in the section-by-section analysis of 
proposed Sec.  1026.37(d) and (h), above, and Sec.  1026.38(e), below, 
several commenters stated that the cash to close amount would be 
difficult for consumers to understand, especially in the case of a 
cash-out refinance transaction where the cash to close amount disclosed 
under proposed Sec.  1026.38(d)(1) would have been negative. These 
commenters stated that consumers would have difficulty in understanding 
negative numbers in this context. The Bureau, in response to these 
comments, conducted additional qualitative testing of the proposed 
integrated disclosures using a sample refinance transaction in which a 
consumer would receive cash at consummation, in which case the cash to 
close would be disclosed as a negative amount, and a modified version 
of the integrated disclosures with an alternative table that would use 
checkboxes to denote that cash was received at consummation. As 
described in the section-by-section analysis of Sec.  1026.37(d) above, 
based on the comments received and this qualitative testing, the Bureau 
believes that disclosing a positive cash to close amount with a 
checkbox to denote that cash will be received will be more 
understandable to consumers than disclosing a negative amount for the 
cash to close. In addition, as also described in the section-by-section 
analysis of Sec.  1026.37(d) above, in response to comments received 
regarding the proposed cash to close tables under Sec. Sec.  1026.37(d) 
and 1026.38(d) and the results of one question in the Bureau's 
Quantitative Study regarding the total closing costs

[[Page 80006]]

amount, the Bureau tested with consumers a revised cash to close table 
on page 1 of the Loan Estimate and Closing Disclosure to place equal 
emphasis on the total closing costs amount and the cash to close amount 
for consumers, rather than placing the total closing costs amount 
embedded in text to the right of the cash to close amount as it was in 
the proposed Loan Estimate and Closing Disclosure. See Kleimann Post-
Proposal Testing Report at 51-52, 58, 62, 71; Kleimann Quantitative 
Study at 74. This table included a revised heading, ``Costs at 
Closing.'' Based on the comments received and its consumer testing, the 
Bureau believes this modification to the cash to close table enhances 
consumer understanding of the transaction.
    Accordingly, the Bureau is adopting Sec.  1026.38(d) as revised 
from proposed Sec.  1026.38(d) to revise the heading to ``Costs at 
Closing,'' and to include two separate rows: the first row contains the 
total closing costs, loan costs, other costs, and lender credits in 
connection with the transaction, as well as a reference to the closing 
cost details under Sec.  1026.38(f), (g), and (h) (disclosed on page 2 
of the Closing Disclosure); and the second row contains the cash to 
close amount, a statement that the cash to close amount includes 
closing costs, and a reference to the calculating cash to close table 
under Sec.  1026.38(i) (disclosed on page 3 of the Closing Disclosure), 
as illustrated by form H-25 of appendix H to Regulation Z. In addition, 
Sec.  1026.38(d) as revised provides for an alternative cash to close 
disclosure for transactions without a seller, consistent with the 
provisions of Sec.  1026.37(d) and (h) and Sec.  1026.38(e). As a 
result of these revisions, the cash to close disclosure under proposed 
Sec.  1026.38(d), is adopted in Sec.  1026.38(d)(1), which will use 
cross-references from the provisions of Sec.  1026.38(f), (g), and (h) 
for the amounts to be disclosed. The alternative cash to close 
disclosure under Sec.  1026.38(d)(2) must be provided for transactions 
without a seller when the Loan Estimate is disclosed with the optional 
alternative table pursuant to Sec.  1026.37(d)(2). The alternative cash 
to close disclosure under Sec.  1026.38(d)(2) will use cross-references 
from the provisions of Sec.  1026.38(e) for the amounts to be 
disclosed. The Bureau also is adopting comments 38(d)(2)-1, which 
clarifies that the use of the alternative cash to close disclosure 
under Sec.  1026.38(d)(2) must be used when the alternative calculating 
cash to close table under Sec.  1026.38(e) is used; and 38(d)(2)-2, 
which provides an example of how the indication of whether the cash is 
due from or to the consumer can be disclosed with the use of 
checkboxes, as shown in form H-25(J) of appendix H.
    Pursuant to its authority under TILA section 105(a), RESPA section 
19(a), and Dodd-Frank section 1032(a), the Bureau requires creditors to 
provide the actual total closing costs imposed upon the consumer and 
the amount of the cash required at consummation from the consumer. This 
disclosure will promote the informed use of credit and consumer 
understanding of the costs, benefits, and risks associated with the 
loan because it will indicate to the consumer the amount the consumer 
will pay at consummation of the credit transaction and closing of the 
real estate transaction.
38(e) Alternative Calculating Cash To Close Table for Transactions 
Without a Seller
    As discussed in the section-by-section analyses of Sec. Sec.  
1026.37(d) and (h) and 1026.38(d) and (i), the Bureau is adopting an 
alternative Calculating Cash to Close table for use in a transaction 
without a seller in response to the comments received that expressed 
concerns regarding the proposed calculation's understandability for 
consumers in refinance transactions, and the disclosure of a negative 
cash to close amount for transactions in which a consumer would receive 
cash from a refinance transaction. The Bureau developed and conducted 
qualitative consumer testing of an alternative Calculating Cash to 
Close table after reviewing these comments. The Bureau's consumer 
testing of the alternative table demonstrated greater consumer 
comprehension and the alternative table proved to be readily understood 
by consumers for transactions without a seller. See Kleimann Post-
Proposal Testing Report at 58, 71.
    Accordingly, the Bureau adopts Sec.  1026.38(e) to require an 
alternative calculating cash to close table for transactions without a 
seller when the Loan Estimate was disclosed with the optional 
alternative Calculating Cash to Close table permitted under Sec.  
1026.37(h)(2). The Bureau is requiring use of the alternative 
Calculating Cash to Close table permitted under Sec.  1026.38(e) if the 
optional alternative table under Sec.  1026.37(h)(2) is used because 
the Bureau designed the tables to match information and content. The 
Bureau has designed the Loan Estimate and Closing Disclosure generally 
to match, to enable easier comparison of estimated and final numbers 
for consumers. The Bureau's Quantitative Study determined that consumer 
participants using the Bureau's integrated disclosures performed 
statistically significantly better than consumer participants using the 
current disclosures at comparing estimated and final loan terms costs. 
See Kleimann Quantitative Study Report at 68. The Bureau believes this 
increased performance is due, in part, to the matching designs of the 
Loan Estimate and Closing Disclosure. Accordingly, the Bureau has 
determined to require the alternative Calculating Cash to Close table 
permitted under Sec.  1026.38(e) if the optional alternative table 
under Sec.  1026.37(h)(2) is used, because use of a similar format and 
content for the table on both the Loan Estimate and the Closing 
Disclosure will enable consumers to compare changes more easily between 
the estimated and final terms and costs, aiding consumer understanding 
of the transaction, which is one of the purposes of the integrated 
disclosures under Dodd-Frank Act sections 1098 and 1100A.
    The alternative table under Sec.  1026.38(e) discloses the loan 
amount, total closing costs, amount of closing costs paid before 
closing, payoffs and payments, the total amount of cash to or from the 
consumer, and the closing costs financed. These items, with the 
exception of closing costs financed, would be disclosed with three 
columns: the first to disclose the corresponding amounts from the Loan 
Estimate under Sec.  1026.37(h)(2); the second to disclose amounts from 
Sec.  1026.38(f), (g), and (t)(5)(viii)(B); and the final column to 
disclose whether the amounts change, with additional statements 
providing more information to the consumer about the change. The 
disclosure of the closing costs financed, because it is not part of the 
calculation of the cash to close in the alternative table, is not 
disclosed as a row in the table, but instead, disclosed in the bottom 
right of the table. The calculation of the closing costs financed 
amount in the alternative table under Sec.  1026.38(e) is the same as 
under Sec.  1026.37(h)(2)(v), except that the sum of closing costs 
designated borrower-paid before closing under Sec.  1026.38(h)(2) are 
subtracted from the amount, because those costs are not paid from loan 
funds. The consumer has made payment for those charges before the loan 
was consummated. The Bureau is adopting comment 38(e)-1 to clarify that 
the optional use of the alternative table must be made in conjunction 
with the alternative disclosure under Sec.  1026.38(d)(2). Based on its 
authority under TILA section 105(a), RESPA

[[Page 80007]]

section 19(a), and Dodd-Frank Act section 1032(a), the Bureau is 
requiring the creditor in a transaction without a seller to provide an 
alternative Calculating Cash to Close table in lieu of disclosing the 
table required by Sec.  1026.38(i) when the alternative Calculating 
Cash to Close table was disclosed pursuant to Sec.  1026.37(h)(2) which 
highlights the cash to close amount and its critical components and 
compares those amounts to the corresponding disclosures shown on the 
Loan Estimate under Sec.  1026.37(h). The Bureau believes that this 
disclosure will effectuate the purposes of TILA and RESPA by 
facilitating the informed use of credit and ensuring that consumers are 
provided with greater and timelier information on the costs of the 
closing process. Providing consumers with information about the cash to 
close amount, its critical components, and how such amounts changed 
from the estimated amounts disclosed on the Loan Estimate helps ensure 
that the features of the transaction are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to better understand the costs, benefits, and risks associated with the 
transaction, in light of the facts and circumstances, consistent with 
Dodd-Frank Act section 1032(a).

38(f), (g), and (h) Closing Cost Details

    The Bureau's proposed Sec.  1026.38(f), (g), and (h) would have 
required the creditor or closing agent to disclose the details of the 
closing costs at closing and totals of those costs. The costs related 
to the consummation of the credit transaction and the closing of the 
real estate transaction would have been disclosed under Sec.  
1026.38(f), (g), and (h), as discussed below, regardless of the person 
responsible for paying the cost. Currently, RESPA section 4(a) requires 
that the forms published by the Bureau ``shall conspicuously and 
clearly itemize all charges imposed upon the borrower and all charges 
imposed upon the seller in connection with the settlement. . . .'' 12 
U.S.C. 2603(a). The current RESPA settlement statement used in 
residential real estate transactions is promulgated under Regulation X 
Sec.  1024.8, with instructions in appendix A to Regulation X.
    As discussed above, Dodd-Frank Act sections 1032(f), 1098, and 
1100A require the Bureau to integrate these RESPA disclosures with the 
disclosures required by TILA. However, section 1419 of the Dodd-Frank 
Act amended TILA section 128(a) also to require, in the case of a 
residential mortgage loan, disclosure of the aggregate amount of 
settlement charges for all settlement services provided in connection 
with the loan and the aggregate amount of other fees or required 
payments in connection with the loan. 15 U.S.C. 1638(a)(17).
    Many of the comments submitted to the Bureau related to Sec.  
1026.38(f) and (g) concern the same issues raised in comments received 
concerning Sec.  1026.37(f) and (g). To the extent that similar 
comments addressed an issue that was more fully discussed in response 
to comments related to Sec.  1026.37(f) and (g), the discussion of the 
comments received related to Sec.  1026.38(f) and (g) will include only 
summaries of comments and refer to the section-by-section analyses of 
Sec.  1026.37(f) and (g), unless there is a specific reason that the 
comment needs to be addressed in the context of the Closing Disclosure.
    Generally, the Bureau is adopting the requirements of Sec.  
1026.38(f), (g), and (h) as proposed, with modifications to some 
provisions and additional commentary to address comments received as 
discussed below. Pursuant to its authority under Dodd-Frank Act section 
1032(a) and (f), TILA section 105(a), and RESPA section 19(a), the 
Bureau is requiring creditors to provide the loan costs and other costs 
imposed upon the consumer and the seller in tables as part of the 
integrated Closing Disclosure for closed-end transactions secured by 
real property (other than reverse mortgages). Based on its consumer 
testing, the Bureau believes that the disclosure of loan costs and 
other costs in the format illustrated in form H-25 of appendix H to 
Regulation Z will improve consumer understanding of the loan costs and 
other costs being imposed. The Bureau tested several different 
prototype formats for disclosing actual closing costs on the Closing 
Disclosure, including prototypes that were similar in format to the 
current RESPA settlement statement, with a similar three- and four-
digit line numbering system, and other prototypes that more closely 
matched the Loan Estimate. Consumer participants at the Bureau's 
consumer testing performed better at identifying closing costs, 
including whether closing costs had changed between the estimated and 
actual amounts, when using a format for closing costs that closely 
matched that of the Loan Estimate. Participants gained a familiarity 
with the organization of closing costs on the Loan Estimate and 
benefited from this experience when engaging with the Closing 
Disclosure. In addition, consumer participants often placed the Loan 
Estimate and Closing Disclosure prototypes side-by-side to compare the 
closing costs, and this method of comparing the two disclosures was 
better enabled and assisted by a closely matching organization of 
closing costs between them. Accordingly, pursuant to Sec.  1026.38(t) 
and illustrated by form H-25, the Bureau is requiring a format for the 
disclosure of closing cost information required by Sec.  1026.38(f) and 
(g) that closely matches the format and organization of the closing 
cost information on the Loan Estimate.
    This format of form H-25 also uses a different line numbering 
system than that of the current RESPA settlement statement. Both 
consumer and industry participants at the Bureau's qualitative testing 
before issuance of the proposal stated that line numbers would be 
useful to facilitate conversations between consumers, creditors, and 
other participants in the credit transaction and underlying real estate 
transaction. However, consumer participants at the Bureau's testing 
appeared overwhelmed by the three- and four-digit line numbers on the 
prototypes similar to the current RESPA settlement statement, and 
performed worse with prototypes containing that system. See Kleimann 
Testing Report at 289. As discussed above in part III, the Bureau is 
particularly mindful of the potential risk of information overload for 
consumers, given the amount of numbers and complexity involved in the 
credit transaction and the underlying real estate transaction. 
Accordingly, in its qualitative testing before issuance of the 
proposal, the Bureau tested prototypes with a two-digit line numbering 
system, which performed better with both consumer and industry 
participants at the Bureau's testing, with some industry participants 
at the Bureau's testing preferring it over the system of the current 
RESPA settlement statement. See Kleimann Testing Report at 293. In 
addition, at the Bureau's Quantitative Study, consumer participants 
using the Bureau's integrated disclosures performed statistically 
significantly better than consumer participants using the current 
disclosures at comparing estimated and final loan terms costs. See 
Kleimann Quantitative Study Report at 67-71. The Bureau believes the 
matching organization of the closing costs on the Loan Estimate and 
Closing Disclosure, as well as the streamlined line numbering system, 
enabled consumers to better compare the estimated and final loan terms 
and costs. Accordingly, the format for the information required by 
Sec.  1026.38(f) and (g), as required by Sec.  1026.38(t) and 
illustrated by form H-25, also contains a matching organization between 
the

[[Page 80008]]

Loan Estimate and Closing Disclosure, as well as a two-digit line 
numbering system that is different than the current RESPA settlement 
statement.
    The Bureau believes that this disclosure will effectuate the 
purpose of TILA by promoting the informed use of credit and assuring a 
meaningful disclosure to consumers. The Bureau believes that this 
disclosure will also satisfy the purpose of RESPA to provide more 
effective advanced disclosure of settlement costs to both the consumer 
and the seller in the real estate transaction. In addition, consistent 
with section 1032(a) of the Dodd-Frank Act, this disclosure will ensure 
that the features of consumer credit transactions secured by real 
property are fully, accurately, and effectively disclosed to consumers 
in a manner that permits consumers to understand the costs, benefits, 
and risks associated with the product or service, in light of the facts 
and circumstances.
    During the Small Business Review Panel, several settlement agents 
and one mortgage company requested that the line numbers from the 
current RESPA settlement statement be retained, stating that using the 
revised line numbers in the prototype integrated Closing Disclosure 
would significantly increase programming costs. See Small Business 
Review Panel Report at 20, 28-9. Based on this feedback, the Bureau 
sought comment on whether the use of line numbers would lower software-
related costs on industry and the exact amount of the savings given the 
rest of the changes in the integrated Closing Disclosure contemplated 
by the proposal, while also improving consumer understanding of the 
loan terms and costs at the consummation of the credit transaction and 
the closing of the real estate transaction.
    Other than generalized statements and assertions, the Bureau did 
not receive comments that included data or factual information on the 
issues sought. Some industry commenters stated that the line numbers 
currently on the RESPA settlement statement are sometimes used for 
reference when discussing closing costs. However, even though the line 
numbers on the Closing Disclosure will be different and many are not 
directly attributable to a certain charge in all transactions, the line 
numbers on the Closing Disclosure still can be used in the same 
fashion. One document preparation/software industry commenter stated 
that changing the line numbers is a significant project on its own, but 
that the other changes to the forms will necessitate enough changes to 
the forms that changing the line number methodology would not be a 
significant part of any update to their system. Other document 
preparation/software industry commenters stated that mapping of the 
charges between the Loan Estimate and Closing Disclosure may be more 
difficult. However, difficulty in mapping for systems purposes does not 
mean that consumers will be more confused. To the contrary, consumer 
testing conducted by the Bureau generally indicates that consumers 
using the Closing Disclosure were better able to understand their final 
loan terms and costs than those using the current RESPA settlement 
statement. See Kleimann Quantitative Study Report at 67. A title 
company industry commenter stated that line numbering is important and 
retaining the current line numbers would not reduce costs since there 
is not a one-to-one correlation between the RESPA settlement statement 
and the Closing Disclosure, and therefore supported retaining the 
proposed line numbers to quickly guide consumers to specific items.
    Some title company industry commenters stated that the line numbers 
are used to generate checks and issue reports. This, however, does not 
address consumer understanding, but rather the use of disclosure forms 
to simplify business practices. As with the RESPA settlement statement, 
the Bureau anticipates that industry will be able to utilize the 
Closing Disclosure for the same business practices. However, the 
purpose of the integrated disclosures under Dodd-Frank sections 1098 
and 1100A is not to streamline business practices, but to assist 
consumers in understanding the transaction and facilitate compliance 
with applicable regulations. A document preparation/software industry 
commenter stated that neither of the provisions of proposed Sec.  
1026.38(f) nor (g) required the identification of the third party 
providing the service to be itemized on the Closing Disclosure. As 
demonstrated by the examples proposed in appendix H to Regulation Z, 
the Bureau intended that a third party ultimately receiving payment 
would be identified on the Closing Disclosure, as is currently required 
under current Regulation X on the RESPA settlement statement. See 12 
CFR part 1024 appendix A. The Bureau has added this requirement into 
the regulatory text of Sec.  1026.38(f) and (g), as applicable, to 
ensure that the required disclosures are made on the Closing 
Disclosure.

38(f) Closing Cost Details; Loan Costs

    The Bureau proposed Sec.  1026.38(f), which would have disclosed 
closing cost details under a master heading of ``Closing Cost 
Details,'' with columns stating whether the charge is paid at or before 
consummation by the consumer or the seller, or paid by others. All loan 
costs in the credit transaction would have been disclosed in a table 
under a heading of ``Loan Costs'' in three subcategories. The Bureau 
did not receive comments on the design of the Closing Disclosure under 
Sec.  1026.38(f). Two national trade association commenters stated that 
the proposed rule was unclear whether the amounts disclosed in the 
``paid by others'' column were to include charges paid before or at 
closing, since the borrower and seller columns in form H-25 break out 
these designations in separate columns. The borrower and seller columns 
break out charges paid before or at closing because the distinction is 
essential to determine the amounts due to or from the consumer and 
seller at consummation. The same concern is not present for charges 
paid by parties other than the consumer or seller. Therefore, the 
``paid by others'' column does not make such a distinction, and charges 
that are required to be disclosed on the Closing Disclosure, whenever 
paid, are itemized in the ``paid by others'' column. Accordingly, the 
Bureau is adopting Sec.  1026.38(f) as proposed, with modifications and 
clarifications as identified below. The Bureau also is adopting comment 
38(f)-1, which permits charges disclosed pursuant to Sec.  1026.38(f) 
and (g) and designated as paid by others to include a notation of 
``(L)'' to designate those charges paid by the creditor pursuant to the 
legal obligation between the creditor and the consumer for the reasons 
stated in the section-by-section analysis of Sec.  1026.38(h)(3), 
below.
38(f)(1) Origination Charges
    The first subcategory of loan costs would have been disclosed under 
the label ``Origination Charges,'' which encompassed the same items as 
would have been disclosed on the Loan Estimate under proposed Sec.  
1026.37(f)(1), together with any compensation of a loan originator paid 
by the creditor. Each cost would have been disclosed in the appropriate 
column designated borrower-paid at or before closing, seller-paid at or 
before closing, or paid by others. Proposed comment 38(f)(1)-1 would 
have clarified that comments 37(f)(1)-1, -2 and -3 provide additional 
guidance for the charges listed under Sec.  1026.38(f)(1). Proposed 
comment 38(f)(1)-2 would have clarified that all compensation paid to a 
loan originator must be disclosed under Sec.  1026.38(f)(1) and that 
compensation from the creditor to a loan originator must be disclosed 
in

[[Page 80009]]

the paid by others column. In addition, proposed comment 38(f)(1)-2 
would have clarified that compensation from both the consumer and the 
creditor to the loan originator is prohibited under Sec.  
1026.36(d)(2). Proposed comment 38(f)(1)-3 would have clarified that 
any amount disclosed as paid from the creditor to the loan originator 
is calculated as the dollar value of all compensation to the loan 
originator and referred to comments 36(d)(1)-1, -2, -3 and -6 for 
further guidance on the components of compensation to a loan 
originator. The Bureau believed that the origination charges disclosed 
under proposed Sec.  1026.38(f)(1) would have implemented TILA section 
128(a)(18), as amended by Dodd-Frank Act section 1419, which requires 
disclosure of the aggregate amount of fees paid to the mortgage 
originator, the amount of those fees paid directly by the consumer, and 
any additional amount received by the originator from the creditor. The 
Bureau also noted that it was engaged in six other rulemakings that 
relate to mortgage credit and intended that the rulemakings function 
collectively as a whole. Accordingly, the Bureau noted it might have to 
modify the disclosure of origination charges under Sec.  1026.38(f)(1) 
as appropriate for consistency with other rulemakings related to 
permissible mortgage loan originator compensation.
    Alternatively, the Bureau invited comment on whether it should 
require itemization in the Closing Disclosure of fees received by loan 
originators from the creditor, and whether it should require 
itemization of any compensation paid by consumers to loan originators, 
which does not include creditors, in the Loan Estimate and Closing 
Disclosure. As discussed above with respect to Sec.  1026.37(f)(1), the 
Bureau is using its authority under TILA section 105(a) and (f), RESPA 
section 19(a), and Dodd-Frank Act section 1405(b) to exempt the 
disclosures required by proposed Sec.  1026.19(e) from the TILA section 
128(a)(18) requirement that creditors disclose the amount of 
origination fees received by loan originators from the creditor. The 
Bureau sought comment on whether a similar exemption should be applied 
under proposed Sec.  1026.38(f)(1).
    Comments from industry stated the same comments as discussed in the 
section-by-section analysis of Sec.  1026.37(f)(1) above regarding 
``negative discount points,'' itemizations for services provided by 
third parties, and requests for clarification of the level of 
itemization under proposed Sec.  1026.38(f)(1). Industry commenters 
generally expressed concern regarding the requirement to disclose all 
compensation received by loan originators, including creditor-paid 
compensation.
    Industry commenters stated that loan originator compensation should 
not be disclosed to protect the privacy of loan originators, some of 
whom are their employees. In addition, commenters stated that the 
disclosure of loan originator compensation would require the disclosure 
of trade secrets, and that the disclosure of loan originator 
compensation would not benefit consumers. Industry commenters also 
stated that loan originator compensation does not affect a consumer's 
loan terms. One large bank commenter specifically requested that the 
Bureau utilize its exemption authority under Dodd-Frank Act section 
1405(b) to eliminate the disclosure of loan originator compensation 
from the requirements of the Closing Disclosure. Another community bank 
commenter stated that the disclosure of loan originator compensation is 
a de facto taking under the Fifth Amendment to the U.S. Constitution.
    Lastly, a national trade association representing developers of 
timeshare and other similar fractional interest real estate products 
stated that the Bureau should clarify that the proposed disclosure 
would not apply to timeshare lenders. The trade association commenter 
asserted that it believes that TILA section 103(cc)(5), as added by 
section 1401 of the Dodd-Frank Act, exempts timeshare lenders from 
compliance with, among other things, TILA section 129C and any 
regulations promulgated thereunder.
    Dodd-Frank Act section 1419 amended TILA section 128(a) to require 
the disclosure of all amounts received by loan originators in a 
transaction. Although the Bureau recognizes that industry has concerns 
about disclosing compensation to loan originators, the Bureau believes 
that the use of exemption authority to exempt creditors from disclosure 
of all loan originator compensation would be inappropriate, because 
information regarding certain loan originator compensation may be 
useful to consumers in understanding their transaction, or to 
facilitate compliance with other applicable requirements. In addition, 
the Bureau does not believe that this disclosure amounts to an 
unconstitutional taking of property. The mere disclosure of the amount 
a loan originator will receive in compensation cannot be interpreted to 
be the required relinquishment of a cognizable property interest by 
government action.\298\ Lastly, with respect to the argument that the 
Closing Disclosure should not apply to timeshare lenders, the general 
section-by-section analysis of Sec.  1026.19 provides a more detailed 
discussion of the Bureau's decision to expand the scope of some of the 
disclosure requirements set forth in TILA, as amended by the Dodd-Frank 
Act. The Bureau believes the disclosure of amounts received by third-
party loan originators in a transaction would be just as useful to 
consumers obtaining a loan secured by a consumer's interest in a 
timeshare plan as it would be to consumers obtaining loans secured by 
real property.
---------------------------------------------------------------------------

    \298\ ``[T]he Government's imposition of an obligation between 
private parties, or destruction of an existing obligation, must 
relate to a specific property interest to implicate the Takings 
Clause.'' Eastern Enterprises v. Apfel, 524, U.S. 498, 544 (Kennedy, 
J., concurring). See also Koontz v. St. Johns River Water Management 
Dist., 568 U.S. --------, 133 S.Ct. 2586, 2599-2600 (2013), 
available at: http://www.supremecourt.gov/opinions/12pdf/11-1447_4e46.pdf.
---------------------------------------------------------------------------

    Industry commenters also made statements concerning the disclosure 
of compensation paid by the creditor to a loan originator that were 
consistent with comments that they had provided in connection with 
other Bureau rulemakings concerning or dealing with loan originator 
compensation. See 78 FR 6407 (Jan. 30, 2013), 78 FR 10367 (Feb. 13, 
2013), 78 FR 35430 (June 12, 2013), and 78 FR 60382 (Oct. 1, 2013). In 
the proposed rule, the Bureau recognized that it may have to make 
adjustments to the items disclosed on the Closing Disclosure to reflect 
these matters or for consistency with determinations made in the 
Bureau's other mortgage rulemakings. The comments received in response 
to the proposed rule were extremely similar, if not the same, as the 
arguments of commenters discussed in the 2013 ATR Final Rule, the 2013 
Loan Originator Final Rule, and the May 2013 ATR Final Rule, such as: 
That the identity of a loan originator is not needed to be disclosed, 
that the amount of loan originator compensation cannot be calculated on 
the date of consummation due to post-consummation events such as 
quarterly bonus and profit-sharing compensation, that the term 
compensation is unclear and overly broad, that the amount of 
compensation is difficult to calculate, and that compensation to loan 
originators can be double-counted because both upfront fees and future 
interest payments can be the source of the funds used for compensating 
loan originators. The extent to which loan originator compensation 
should be

[[Page 80010]]

included in the definition of points and fees was the subject of 
considerable discussion in the Bureau's 2013 ATR Final Rule and May 
2013 ATR Final Rule.\299\ Because of the similar issues involved in 
whether loan originator compensation should be included in the 
definition of points and fees and disclosed on the integrated 
disclosures, the Bureau believes that the matters stated by commenters 
in response to the proposed rule were fully discussed and considered in 
the Bureau's 2013 ATR Final Rule and May 2013 ATR Final Rule.\300\ In 
addition, the Bureau stated in the proposal that it may have to modify 
aspects of this proposed rule for consistency with determinations made 
in the other rulemakings. Based on this evaluation and the Bureau's 
belief that consistency between its mortgage rulemakings will 
facilitate compliance for industry, the Bureau is modifying the 
guidance provided in proposed comment 38(f)(1)-3 to reflect that the 
amount of loan originator compensation paid by a creditor to a loan 
originator will be calculated in accordance with the guidance provided 
in relation to Sec.  1026.32(b)(1)(ii). The Bureau believes that this 
modification will facilitate compliance and assist consumer 
understanding of the transaction.
---------------------------------------------------------------------------

    \299\ See 12 CFR 1026.32(b)(1)(ii) for amounts of loan 
originator compensation excluded from the definition of points and 
fees; and discussions of comments received concerning the issues 
identified in 78 FR 6408, 6432-6438 (Jan. 30, 2013); 78 FR 35430, 
35442-35459 (June 12, 2013); and 78 FR 60382, 60408-60413 (Oct. 1, 
2013).
    \300\ Id.
---------------------------------------------------------------------------

    Accordingly, the Bureau is adopting Sec.  1026.38(f)(1) with the 
addition of a requirement to provide the identity of any third-party 
loan originator that ultimately receives compensation from the 
creditor, and comment 38(f)(1)-1 and -2 as proposed with a modification 
to reflect payments from a creditor to a third-party loan originator. 
The Bureau is also adopting comment 38(f)(1)-3 with modifications to 
address comments about how to calculate the amount of compensation to a 
third-party loan originator paid by a creditor by referencing the 
calculation of creditor-paid compensation to the third-party loan 
originator for the purposes of determining the amount of points and 
fees associated with the transaction in accordance with Sec.  
1026.32(b)(1)(ii).
    The Bureau is using its authority under TILA section 105(a), RESPA 
section 19(a), and Dodd-Frank Act section 1032(a) to exempt from 
disclosure the amounts paid to the employee of a loan originator 
organization from the amounts disclosed under Sec.  1026.38(f)(1). As 
stated above, the Bureau believes that the amounts of third-party loan 
originator compensation disclosed on the Closing Disclosure should be 
calculated in accordance with the amount of third-party loan originator 
compensation included in the points and fees calculation used by Sec.  
1026.32(b)(1)(ii), which does not include such employee compensation. 
The Bureau believes that consumers understand that employees are 
compensated by their employer, and do not require separate disclosure 
because the consumer is already paying the creditor. Accordingly, the 
Bureau believes the inclusion of such information on the Closing 
Disclosure will not aid consumer understanding of the transaction, and 
instead, may cause information overload for consumers. However, 
consumers may not understand that a third-party loan originator will be 
paid by the creditor in connection with the transaction, and thus, the 
disclosure of such compensation may aid consumer understanding of the 
transaction. In addition, the Bureau believes that using the 
calculation of Sec.  1026.32(b)(1)(ii) to determine the amount of 
third-party loan originator compensation disclosed under Sec.  
1026.38(f)(1) will facilitate compliance by creditors with the 2013 ATR 
Final Rule, the May 2013 ATR Final Rule, and the second set of 
amendments to the Title XIV Rulemakings. See 78 FR 60382 (Oct. 1, 
2013).
    Accordingly, this disclosure will effectuate the purposes of TILA 
and RESPA by promoting the informed use of credit and more effective 
advance notice of settlement costs, consistent with TILA section 105(a) 
and RESPA section 19(a), and will ensure that the features of the 
mortgage transactions are fully, accurately, and effectively disclosed 
to consumers in a manner that permits consumers to better understand 
the costs, benefits, and risks associated with mortgage transactions, 
in light of the facts and circumstances, consistent with Dodd-Frank Act 
section 1032(a). The Bureau also believes such disclosure will improve 
consumers' awareness and understanding of residential mortgage 
transactions, which is in the interest of consumers and the public, 
consistent with Dodd-Frank Act section 1405(b).
38(f)(2) Services Borrower Did Not Shop for
    The second subcategory of loan costs would have been disclosed 
under the label ``Services Borrower Did Not Shop For.'' The costs of 
services that were required by the creditor and provided by persons 
other than the creditor for which the consumer could not or did not 
shop would have been disclosed under proposed Sec.  1026.38(f)(2). Any 
additional items that were required by the creditor but were not 
disclosed on the Loan Estimate under proposed Sec.  1026.37(f)(2) would 
have been disclosed under proposed Sec.  1026.38(f)(2) when the 
consumer did not shop for the service under Sec.  1026.19(e)(1)(vi). 
Each cost would have been disclosed in the appropriate column 
designated borrower-paid at or before closing, seller-paid at or before 
closing, or paid by others. Proposed comment 38(f)(2)-1 would have 
referred to comments 37(f)(2)-1 through -4 to provide additional 
guidance for the charges listed under proposed Sec.  1026.38(f)(2).
    Commenters made statements in relation to proposed Sec.  
1026.38(f)(2) that concerned matters of appraisal management fees, the 
perceived difficulty in how some charges would be categorized, and the 
disclosure of enhanced lender's title insurance policies, which are 
discussed in the section-by-section analysis of Sec.  1026.37(f)(2) 
above. The Bureau did not receive other comments related to proposed 
Sec.  1026.38(f)(2). Accordingly, the Bureau is adopting Sec.  
1026.38(f)(2) substantially as proposed. The Bureau is adding to Sec.  
1026.38(f)(2) a requirement to provide the identity of the person 
ultimately receiving the payment. The Bureau is also adopting comment 
38(f)(2)-1 as proposed.
38(f)(3) Services Borrower Did Shop for
    The third subcategory of loan costs would have been disclosed under 
the label ``Services Borrower Did Shop For.'' The services required by 
the creditor but for which the consumer independently shopped would 
have been disclosed under proposed Sec.  1026.38(f)(3). Each cost would 
have been disclosed in the appropriate column for borrower-paid at or 
before closing, seller-paid at or before closing, or paid by others. 
Proposed comment 38(f)(3)-1 would have clarified that all services that 
were disclosed under proposed Sec.  1026.37(f)(3) that the consumer did 
not shop for under proposed Sec.  1026.19(e)(1)(vi) are disclosed under 
proposed Sec.  1026.38(f)(2), and not under proposed Sec.  
1026.38(f)(3).
    The Bureau did not receive comments concerning proposed Sec.  
1026.38(f)(3). Accordingly, the Bureau is adopting Sec.  1026.38(f)(3) 
substantially as proposed. The Bureau is adding to Sec.  1026.38(f)(3) 
a requirement to provide the identity of the person ultimately

[[Page 80011]]

receiving the payment. The Bureau is adopting comment 38(f)(3)-1 as 
proposed.
38(f)(4) and (5) Total Loan Costs and Subtotal of Loan Costs
    With the label ``Total Loan Costs (Borrower-Paid),'' the total 
costs designated borrower-paid charges at closing and borrower-paid 
charges before closing would have been disclosed under proposed Sec.  
1026.38(f)(4). The costs disclosed under proposed Sec.  1026.38(f)(1), 
(2), and (3) would have been subtotaled and disclosed in the 
appropriate column designated borrower-paid at or before closing under 
proposed Sec.  1026.38(f)(5). Proposed comment 38(f)(5)-1 would have 
clarified that costs that are seller-paid at or before closing, or paid 
by others, are not subtotaled under proposed Sec.  1026.38(f)(5), and 
that the subtotal of charges that are seller-paid at or before closing, 
or paid by others, would be disclosed under proposed Sec.  
1026.38(h)(2).
    Several commenters stated that consumers and sellers may be 
confused if the seller-paid at closing, seller-paid before closing, and 
paid by other columns are treated differently than the borrower-paid 
columns, and therefore also should be subtotaled under proposed Sec.  
1026.38(f)(5). Consumer testing conducted by the Bureau did not 
indicate that consumers were confused because of a lack of subtotals in 
the seller-paid at closing, seller-paid before closing, and paid by 
other columns. Unless agreed to by contract, many of the costs 
disclosed in proposed Sec.  1026.38(f) would not be paid by the seller, 
since the seller is not legally obligated to or required by the 
creditor to pay for such services. The seller's transaction is only 
with the consumer, and typically has fewer costs associated with 
consummation. Accordingly, the Bureau is adopting Sec.  1026.38(f)(5) 
and its accompanying commentary as proposed, with a modification to the 
label required under Sec.  1026.38(f)(5) to conform to H-25.
38(g) Closing Cost Details; Other Costs
    Under proposed Sec.  1026.38(g), all other costs in the credit 
transaction and the real estate transaction would have been disclosed 
in a table under the heading of ``Other Costs'' in four subcategories. 
Proposed comment 38(g)-1 would have referred to proposed comment 38(f)-
1 and proposed comment 37(g)-1 to provide guidance related to proposed 
Sec.  1026.38(g). The Bureau did not receive comments on proposed Sec.  
1026.38(g) or its accompanying commentary generally. Accordingly, the 
Bureau is adopting Sec.  1026.38(g) and its accompanying commentary as 
proposed, with the modifications stated for the individual 
subcategories of other costs as specifically discussed, below.
38(g)(1) Taxes and Other Government Fees
    The first subcategory would have been disclosed under the label 
``Taxes and Other Government Fees.'' The amount of recording fees and 
an itemization of transfer taxes would have been disclosed under 
proposed Sec.  1026.38(g)(1). Proposed comment 38(g)(1)-1 would have 
referred to comments 37(g)(1)-1, -2, -3 and -4 for guidance on 
disclosures required under proposed Sec.  1026.38(g)(1). Several 
commenters again stated concerns related to the definition of recording 
fees that are discussed in the section-by-section analysis of Sec.  
1026.37(g)(1) above. Several national industry trade association 
commenters stated that the disclosure of the split of recording fees 
between those required for recording the deed and mortgage would omit 
recording fees for other documents (such as powers of attorney and 
subordination agreements), and therefore the disclosed amount under 
proposed Sec.  1026.38(g)(1) would not equal the sum of the two 
disclosed components. Some of these commenters suggested deleting the 
breakout between charges associated with recording the deed and the 
mortgage. The Bureau's consumer testing did not indicate that consumers 
were confused about the breakout. See Kleimann Testing Report at 186-
87, 291. The Bureau believes that to introduce further breakouts would 
require additional space that may not be available on the form as 
tested and would not demonstrably change consumer understanding of the 
Closing Disclosure.
    Several commenters stated that there are sometimes multiple 
transfer taxes that cannot be lumped together in one line. However, 
Sec.  1026.38(g)(1) does not require all transfer taxes to be included 
on one line, unlike Sec.  1026.37(g)(1). Additionally, Sec.  
1026.38(g)(1) expressly requires an itemization of transfer taxes, and 
reflects the actual division of transfer taxes between the consumer and 
seller, instead of transfer taxes that the consumer could pay that are 
disclosed in accordance with Sec.  1026.37(g)(1), as any negotiations 
between the consumer and seller will be resolved by consummation.
    Accordingly, the Bureau is adopting proposed Sec.  1026.38(g)(1) 
and its accompanying commentary substantially as proposed, with a 
modification to Sec.  1026.38(g)(1)(ii) to include the name of the 
government entity assessing the transfer tax to clarify that the 
identities of such entities are required to be disclosed. The Bureau is 
also adopting comment 38(g)(1)-2 to provide guidance clarifying that 
transfer taxes can be itemized by the creditor as provided in State or 
local law and the real estate purchase contract, to provide further 
clarity regarding the requirement to itemize transfer taxes.
38(g)(2) Prepaids
    The second subcategory would have been disclosed under the label 
``Prepaids.'' The items that were identified under this label and 
stated with the actual costs in the applicable columns would have been 
disclosed under Sec.  1026.38(g)(2). Proposed comment 38(g)(2)-1 would 
have referred to proposed comment 37(g)(2)-1 to provide guidance on 
disclosures required under proposed Sec.  1026.38(g)(2). Proposed 
comment 38(g)(2)-2 would have clarified that the amount of prepaid 
interest can be disclosed as a negative number if the calculation of 
prepaid interest results in a negative number. Proposed comment 
38(g)(2)-3 would have clarified that if interest is not collected for a 
portion of a month or other period between closing and the date from 
which interest will be collected with the first monthly payment, then 
$0.00 must be disclosed under proposed Sec.  1026.38(g)(2) for prepaid 
interest. This guidance would have been consistent with instructions 
for RESPA settlement statement line 901 in appendix A to Regulation X.
    Several commenters submitted comments similar to comments received 
in response to proposed Sec.  1026.37(g)(2), stating that this 
subcategory under proposed Sec.  1026.38(g)(2) should be labeled with a 
different description, and that any prepaid interest should be 
calculated in reference to the introductory interest rate instead of 
the fully-indexed rate. Accordingly, for the reasons discussed above in 
the section-by-section analysis of Sec.  1026.37(g)(2), the Bureau is 
adopting Sec.  1026.38(g)(2) and its accompanying commentary as 
proposed with a modification to require the name of the person 
ultimately receiving the payment, except for the disclosure of prepaid 
interest. The Bureau also is adopting comment 38(g)(2)-4 to clarify 
that the interest rate used to determine the amount of prepaid interest 
is the interest rate disclosed on page one of the Closing Disclosure 
under Sec.  1026.38(b), as required by Sec.  1026.37(b)(2). One 
industry commenter stated that the proposed rule did not provide a 
definition for items that would be

[[Page 80012]]

considered property taxes. The Bureau is adopting comment 38(g)(2)-5 to 
clarify that property taxes that are disclosed pursuant to Sec.  
1026.38(g)(2) are those items that meet the definition stated in 
comment 43(b)(8)-2.
38(g)(3) Initial Escrow Payment at Closing
    The third subcategory would have been disclosed under the 
subheading ``Initial Escrow Payment at Closing.'' The items that would 
have been identified under Sec.  1026.37(g)(3) would have been stated 
with their actual cost and the applicable aggregate adjustment required 
under 12 CFR 1024.17(d)(2) and disclosed under proposed Sec.  
1026.38(g)(3). Proposed comment 38(g)(3)-1 would have clarified that 
the creditor would be required to state the amount that it would 
require the consumer to place into a reserve or escrow account at 
consummation to be applied to recurring charges for property taxes, 
homeowner's and similar insurance, mortgage insurance, homeowner's 
association dues, condominium dues, and other periodic charges. Each 
charge identified would have been disclosed with a relevant label, 
monthly payment amount, and number of months collected at consummation. 
Proposed comment 38(g)(3)-2 would have clarified that the method used 
to determine the aggregate adjustment for purposes of establishing the 
reserve or escrow account is described in Regulation X Sec.  
1024.17(d)(2), that examples of the calculation methodology can be 
found in appendix E to Regulation X, and that the result of the 
calculation will always be a negative number or zero, except for 
amounts due to rounding. This comment would have incorporated guidance 
provided in appendix A to Regulation X relating to the instructions to 
complete the current RESPA settlement statement section 1000.
    Comments received regarding proposed Sec.  1026.38(g)(3) sought 
clarity regarding the difference between items that are considered to 
be prepaid versus those items that are considered to be included in an 
escrow account, since both categories are payable prior to the first 
payment date. Commenters also sought clarity on the itemization of 
multiple taxes, as discussed in Sec.  1026.37(g)(3) above. The Bureau 
observes that escrow payments would be paid to a creditor (or a 
mortgage servicer if one has been identified at closing) while prepaid 
amounts generally are paid to third parties, and thus the Bureau does 
not believe this difference is confusing or difficult to comply with. 
Indeed, Sec.  1026.38(g)(2) requires disclosure of the person 
ultimately receiving the payment or the government entity assessing the 
property taxes, while Sec.  1026.38(g)(3) does not impose such a 
requirement.
    One document preparation/software industry commenter stated that 
the aggregate adjustment disclosed under proposed Sec.  1026.38(g)(3) 
should be the last item disclosed under this subheading. The Bureau 
believes that it would improve consumer understanding to have the 
aggregate adjustment required by Sec.  1024.17(d)(2) listed as the last 
item disclosed under this subheading, and is adding a sentence to 
comment 37(g)(3)-2 to address this issue. One industry commenter stated 
that the proposed rule did not provide a definition for items that 
would be considered property taxes.
    Accordingly, the Bureau is adopting Sec.  1026.38(g)(3) and its 
accompanying commentary as proposed. The Bureau also is adding an 
additional sentence to comment 38(g)(3)-2 to clarify that the aggregate 
adjustment required under Sec.  1024.17(d)(2) should be listed as the 
last item disclosed under this subheading. The Bureaus also is adopting 
comment 38(g)(3)-3 to incorporate guidance from 37(g)(3)-5 for multiple 
taxes with different accounting periods. The Bureau is adopting comment 
38(g)(3)-4 to clarify that property taxes that could be disclosed 
pursuant to Sec.  1026.38(g)(3) are those items that meet the 
definition stated in comment 43(b)(8)-2. The Bureau is adopting comment 
38(g)(3)-5 to clarify that the amounts disclosed pursuant to Sec.  
1026.38(g)(3) are those amounts that are included in the definition of 
``escrow account'' under 12 CFR 1024.17(b).
38(g)(4) Other
    The fourth subcategory would have been disclosed under the label 
``Other.'' The services required or obtained in the real estate closing 
by the consumer, seller, or other party would have been described and 
the costs for the services would have been disclosed under proposed 
Sec.  1026.38(g)(4). The label for any cost that is a component of 
title insurance would have been required to include the description 
``Title--.'' The label for costs of premiums for separate insurance, 
warranty, guarantee, or event-coverage products would have been 
required to include the parenthetical ``(optional)'' at the end. 
Proposed comment 38(g)(4)-1 would have clarified that the charges 
disclosed under proposed Sec.  1026.38(g)(4) include all real estate 
brokerage fees, homeowner's or condominium association charges paid at 
closing, home warranties, inspection fees, and other fees that are part 
of the real estate transaction but not required by the creditor or 
disclosed elsewhere in proposed Sec.  1026.38. Proposed comment 
38(g)(4)-2 would have clarified that any owner's title insurance 
premium disclosed under proposed Sec.  1026.38(g)(4) in a jurisdiction 
that permits simultaneous issuance title insurance rates would have 
been calculated by using the full owner's title insurance premium, 
adding any simultaneous issuance premium for issuance of lender's 
coverage, and then deducting the full premium for lender's coverage 
disclosed under proposed Sec.  1026.38(f)(2) or (f)(3) and that the 
cost of a premium for an owner's title insurance policy would have been 
always labeled with ``Title--'' at the beginning, and labeled 
``(optional)'' at the end when designated borrower-paid at or before 
closing. Proposed comment 38(g)(4)-3 would have referred to comment 
37(g)(4)-3 for additional guidance on the use of the parenthetical 
``(optional)'' at the end of label on a cost under proposed Sec.  
1026.38(g)(4)(ii).
    Commenters that provided comments related to the calculation of the 
owner's title insurance premium presented arguments identical to those 
provided in relation to proposed Sec.  1026.37(g)(4), which are 
discussed in the section-by-section analysis of that provision, above. 
Two GSE commenters indicated that there was no guidance in the proposal 
on how to disclose real estate commissions charged by real estate 
brokerages in a transaction. The Bureau is addressing this query with 
the addition of commentary to clarify this issue. Accordingly, the 
Bureau is adopting Sec.  1026.38(g)(4) and its accompanying commentary 
as proposed. In response to the comments regarding the real estate 
brokerage commissions, the Bureau also is adopting comment 38(g)(4)-4 
to clarify that the total amount of the real estate commission charged 
by any real estate brokerage must be disclosed under Sec.  
1026.38(g)(4), regardless of the identity of the party that may hold 
any earnest money deposit.
38(g)(5) Total Other Costs
38(g)(6) Subtotal of Costs
    With the label ``Total Other Costs (Borrower-Paid),'' the total of 
the consumer paid charges at closing and the consumer paid charges 
before closing would have been disclosed under proposed Sec.  
1026.38(g)(5). The costs disclosed under proposed Sec.  1026.38(g)(1) 
through (4) would have

[[Page 80013]]

been subtotaled and disclosed in the appropriate column designated 
borrower-paid at or before closing under proposed Sec.  1026.38(g)(6). 
Proposed comment 38(g)(6)-1 would have clarified that the only costs 
subtotaled under proposed Sec.  1026.38(g)(6) are those that would have 
been designated borrower-paid at or before closing. The costs disclosed 
under Sec.  1026.38(g)(1) through (4) that are seller-paid at closing, 
seller-paid before closing, or paid by others would not have been 
disclosed under proposed Sec.  1026.38(g)(6), but would have been 
subtotaled under proposed Sec.  1026.38(h)(2). The Bureau did not 
receive comments concerning proposed Sec.  1026.38(g)(5) or (6). 
Accordingly, the Bureau is adopting Sec.  1026.38(g)(5) and (6) and its 
accompanying commentary as proposed, with a minor modification to the 
label required under Sec.  1026.38(g)(6) to conform to form H-25.
38(h) Closing Cost Totals
38(h)(1) and (2)
    Subtotals of closing costs and total closing costs paid by the 
consumer would have been required to be disclosed under proposed Sec.  
1026.38(h). With the label ``Total Closing Costs (Borrower-Paid),'' the 
total amount of consumer paid closing costs would have been disclosed 
under proposed Sec.  1026.38(h)(1). With a description of ``Closing 
Costs Subtotal (Loan Costs + Other Costs),'' the subtotal of all 
charges disclosed under proposed Sec.  1026.38(f) and (g) in each 
column described in proposed Sec.  1026.38(f) would have been disclosed 
under proposed Sec.  1026.38(h)(2). Comment 38(h)(2)-1 would have 
clarified that the loan costs and other costs that are seller-paid at 
closing, seller-paid before closing, and paid by others are also 
subtotaled under proposed Sec.  1026.38(h)(2). The Bureau did not 
receive comments concerning the totals and subtotals to be provided 
under Sec.  1026.38(h)(1) and (2). Accordingly, the Bureau is adopting 
Sec.  1026.38(h)(1) and (2) and its accompanying commentary as 
proposed, with a minor modification to the label required under Sec.  
1026.38(h)(2) to conform to form H-25.
    The Bureau adopts Sec.  1026.38(h)(1) and (2) pursuant to its 
authority under TILA section 105(a) and Dodd-Frank Act section 1032(a) 
because disclosure of this closing cost information promotes the 
informed use of credit and consumer understanding of the costs, 
benefits, and risks associated with the mortgage transaction. 
Furthermore, for the reasons stated above, the rule is in the interest 
of consumers and in the public interest, consistent with Dodd-Frank Act 
section 1405(b). In addition, Sec.  1026.38(h)(1) and (2) implements 
Dodd-Frank Act section 1419, which amended section 128(a) of TILA to 
add a new paragraph (17) requiring disclosure of, among other amounts, 
the amount of settlement charges the borrower must pay at closing and 
the aggregate amount of all settlement charges for all settlement 
services provided in connection with the loan.
38(h)(3)
    Section 1026.38(h)(3) would have required the creditor to disclose 
the amount of credits provided by the creditor to the consumer at 
consummation. Proposed comment 38(h)(3)-1 would have provided a cross-
reference to guidance provided in comments 17(c)(1)-19, 19(e)(3)(i)-4, 
and 19(e)(3)(i)-5 concerning the disclosure of lender credits, 
including those that are disclosed under Sec.  1026.37(g)(6). Proposed 
comment 38(h)(3)-2 would have clarified that any amounts disclosed 
under Sec.  1026.38(h)(3) also can be used for disclosing any credits 
from the creditor to remediate excess costs determined under Sec.  
1026.19(e)(3)(i) or (e)(3)(ii). This comment would have incorporated 
guidance provided in the HUD RESPA Roundup dated April 2010.
    Industry commenters stated that lender credits should not be 
deducted from the total costs, but rather should offset origination 
charges, in a fashion similar to the existing RESPA GFE and RESPA 
settlement statement. Industry commenters stated that to show credits 
in another fashion would make loans offered by mortgage brokers appear 
more expensive. Consumer testing conducted by the Bureau indicated that 
applying lender credits to origination charges lead to negative loan 
costs, which may not be understood by consumers. See Kleimann Testing 
Report at 125. The Bureau moved lender credits to offset all closing 
costs to better ensure they would be understood by consumers. See 
Kleimann Testing Report at 259-60
    However, an association of State financial regulators stated that 
it believed netting of lender credits against origination fees would be 
contrary to the nature of Regulation Z, and that netting of credits 
should be avoided wherever possible. Specifically, the association of 
State financial regulators stated that a clear enumeration of how a 
lender credit was applied should be provided in the Closing Disclosure. 
As noted in the proposed rule, the Bureau understands that lender 
credits are sometimes provided to offset specific charges, as well as 
provided in a lump sum without attribution to specific costs, pursuant 
to the legal obligation between the creditor and the consumer. The 
Bureau believes that the Closing Disclosure should, to the extent 
practicable, reflect the terms of the legal obligation. The Bureau has 
adopted comment 38(f)-1, which provides a method to designate those 
specific closing costs that are paid by the lender, which is intended 
to permit the itemization of lender credits in accordance with the 
legal obligation between the creditor and consumer. However general, 
undesignated lender credits also need to be appropriately reflected on 
the Closing Disclosure. Accordingly, the Bureau is adopting Sec.  
1026.38(h)(3) and its accompanying commentary substantially as 
proposed, with minor modifications for clarity. The Bureau is modifying 
Sec.  1026.38(h)(3) to require statements regarding the inclusion of a 
credit under Sec.  1026.19(f)(2)(v) to cure a tolerance violation of 
Sec.  1026.19(e)(3), and making minor modifications for clarity. The 
statement regarding the inclusion of a credit under Sec.  
1026.19(f)(2)(v) is illustrated by form H-25(F) of appendix H.
38(h)(4)
    Section 1026.38(h)(4) would have required the creditor to use 
terminology describing the charges on the Closing Disclosure in a 
manner that is consistent with the descriptions used for charges 
disclosed on the Loan Estimate under Sec.  1026.37. The creditor also 
would have been required to list the charges on the Closing Disclosure 
in the same sequential order on the Loan Estimate under Sec.  1026.37. 
Proposed comment 38(h)(4)-1 would have clarified that the creditor 
would have been required to use the same terminology and order to make 
it easier for the consumer to compare charges listed on the Loan 
Estimate and Closing Disclosure. Also, if charges move between 
subheadings under Sec.  1026.38(f)(2) and (3), listing the charges in 
alphabetical order in each subheading category would have been 
considered to be in compliance with Sec.  1026.38(h)(4).
    Commenters stated that showing items in alphabetical order would be 
difficult for their information technology systems, which was discussed 
in the section-by-section analysis of Sec.  1026.37(f)(6), above. 
Proposed Sec.  1026.38(h)(4) requires that the items on the Closing 
Disclosure be kept in the same order as the items were disclosed on the 
Loan Estimate, with items added on the Closing Disclosure to be re-
alphabetized. Consumer testing

[[Page 80014]]

conducted by the Bureau showed that maintaining, to the extent 
possible, the order of charges in the order disclosed on the Loan 
Estimate on the Closing Disclosure assisted consumers to better 
identify changes between the estimated and actual amounts. See Kleimann 
Testing Report at 292. At the Bureau's Quantitative Study, consumer 
participants using the Loan Estimate and Closing Disclosure performed 
statistically significantly better than the consumer participants using 
the current RESPA GFE, early TILA disclosure, RESPA settlement, and 
final TILA disclosure at comparing their estimated and final terms and 
costs. See Kleimann Quantitative Study Report at 68-9. Based on these 
findings, the Bureau believes that there is substantial consumer 
benefit to the proposed ordering of the charges. Accordingly, the 
Bureau is adopting Sec.  1026.38(h)(4) and its accompanying commentary 
as proposed, with modifications for clarity.
38(i) Calculating Cash To Close
    As discussed above, the total amount of cash or other funds that 
the consumer must provide at consummation is commonly known as the 
``cash to close.'' Prior to the enactment of the Dodd-Frank Act, 
neither TILA nor Regulation Z expressly required disclosure of the cash 
to close amount or its critical components. The Dodd-Frank Act added 
section 128(a)(17) to TILA, which requires the disclosure of ``the 
aggregate amount of settlement charges for all settlement services 
provided in connection with the loan, the amount of charges that are 
included in the loan and the amount of such charges the borrower must 
pay at closing . . . and the aggregate amount of other fees or required 
payments in connection with the loan.'' 15 U.S.C. 1638(a)(17).
    The ``Summary of Borrower's Transaction'' on page 1 of the RESPA 
settlement statement, line 303, includes a box that shows the amount of 
cash due to or from the consumer. See appendix A to Regulation X. Page 
3 of the RESPA settlement statement also includes a chart entitled 
``Comparison of Good Faith Estimate (GFE) and HUD-1 Charges,'' which 
highlights any changes between the estimated and actual amounts for 
settlement service charges that are subject to the limitations on 
increases under 12 CFR 1024.7(e). However, these settlement service 
charges comprise only a portion of the total amount of funds that the 
consumer would need to consummate the transaction. Thus, the cash to 
close box on line 303 and the comparison chart on page 3 of the RESPA 
settlement statement together provide an incomplete picture of how the 
cash to close amount is calculated and whether it is different than the 
consumer expects based on the RESPA GFE.
    The ``Calculating Cash to Close'' table in the Closing Disclosure 
under proposed Sec.  1026.38(i) would have mirrored the format of, and 
updated the amounts shown on, the ``Calculating Cash to Close'' table 
in the Loan Estimate under proposed Sec.  1026.37(h). The Bureau 
believed that including separate ``Calculating Cash to Close'' tables 
on both the Loan Estimate and the Closing Disclosure would have aided 
the consumer in ascertaining whether the cash to close amount and its 
critical components changed between the Loan Estimate and the Closing 
Disclosure, and by how much. The two tables would have been similar in 
format and designed to be used in tandem when the consumer is reviewing 
the Closing Disclosure and comparing its content to that shown on the 
Loan Estimate. However, the table on the Closing Disclosure would have 
included additional information under the subheading ``Did this 
change?'' which was intended to assist the consumer in identifying and 
understanding the reasons for any such changes.
    The Bureau's consumer testing indicated that consumers were able to 
use the detailed comparison table to understand how and why the actual 
cash to close amount on the Closing Disclosure differs from the 
estimated amounts shown on the Loan Estimate. During testing conducted 
prior to the proposal, consumers tended to use the ``Calculating Cash 
To Close'' table in conjunction with the ``Closing Cost Details'' 
tables showing itemized charges and subtotals on the Closing 
Disclosure, to identify the differences between the estimated and 
actual cash to close amount and its critical components and to gain a 
better understanding of the numbers underlying the cash to close 
amount. The consumers also benefited from the ``Did this change?'' 
subheading containing statements that components of the cash to close 
changed and simple explanations as to why. The Bureau incorporated this 
feedback into the design of the table and its choice of language to be 
used under the ``Did this change?'' subheading, as applicable.
    The proposal stated that requiring disclosure of the ``Calculating 
Cash To Close'' table also would have complemented Sec.  
1026.19(f)(1)(ii), which requires delivery of the Closing Disclosure 
three business days prior to consummation. TILA section 128(b)(2)(D) 
requires that a corrected TILA disclosure be given to the consumer not 
later than three business days prior to consummation if the APR as 
initially disclosed becomes inaccurate and the Bureau understands that 
the annual percentage rate changes triggering the redisclosure 
obligation occur so frequently that many creditors currently provide 
the corrected TILA disclosure as a matter of course even if 
redisclosure is not required. RESPA section 4 provides that the RESPA 
settlement statement be provided ``at or before settlement,'' however, 
and the Bureau understands that it typically is given the day of 
settlement. As discussed above, proposed Sec.  1026.19(f)(1)(ii) would 
have merged the two provisions by requiring that consumers be given the 
integrated disclosures three business days prior to consummation. The 
Bureau stated that, during this three-business-day period, the consumer 
can review the Closing Disclosure, contact the creditor with questions 
regarding the information contained on the Closing Disclosure, and 
correct any errors prior to consummation. The proposal stated that 
disclosing the cash to close amount and how it was calculated three 
business days in advance of consummation generally provides the 
consumer with a three-business-day window to make arrangements to have 
the necessary funds available for the consummation. The proposal stated 
that this would help alleviate concerns that, in some cases, consumers 
may not know until shortly before consummation--or even the day of 
consummation--how much of their own funds they will be expected to 
bring to the closing table.
    The ``Calculating Cash To Close'' table that would have been 
disclosed on the Closing Disclosure under Sec.  1026.38(i) would have 
consisted of four columns and nine rows. The first column, which does 
not have a subheading, would have included labels for the components of 
cash to close. Total closing costs, which would have been listed in the 
first row, would have been the sum total of creditor, third-party 
settlement service, and other transaction-related charges disclosed on 
the ``Closing Cost Details'' tables on the Closing Disclosure. 
Subsequent rows would have listed other components of the cash to close 
amount, such as the closing costs paid before consummation, closing 
costs financed, and the deposit. These component amounts are discussed 
in more detail under Sec.  1026.38(i)(1) through (8), below. The second 
column, under the subheading ``Estimate,'' would have included the 
estimated amounts of cash to close and its

[[Page 80015]]

components. These amounts would have matched the estimates given on the 
``Calculating Cash To Close'' table in the Loan Estimate, which would 
have been shown to the nearest whole dollar amount. The third column, 
under the subheading ``Final,'' would have included the actual amounts 
of the cash to close and its components without rounding. In both the 
second and the third columns, the amounts that increase the total cash 
to close amount would have been shown as positive numbers, and the 
amounts that reduce the total cash to close amount would have been 
shown as negative numbers. The fourth column, under the subheading 
``Did this change?'' would have contained in each row: (1) A statement, 
more prominent than other disclosures under proposed Sec.  1026.38(i), 
as to whether the actual amount is different from or increased above 
the estimated amount; and (2) if the actual amount is different from or 
increased over the estimated amount, a simple explanation for the 
difference or increase along with cross-references to other relevant 
information disclosed on the Closing Disclosure, as applicable.
    Proposed comment 38(i)-1 would have discussed how, under each 
subparagraph (iii) of Sec.  1026.38(i)(1) through (i)(8), the statement 
as to whether the ``Final'' amount disclosed under each subparagraph 
(ii) of Sec.  1026.38(i)(1) through (i)(8) is greater than, equal to, 
or less than the corresponding ``Estimate'' amount disclosed under each 
subparagraph (i) of Sec.  1026.38(i)(1) through (i)(8) would have been 
disclosed more prominently than the other disclosures under Sec.  
1026.38(i). The proposed comment would have clarified that this more 
prominent statement can take the form, for example, of a ``Yes'' or 
``No'' disclosed in capital letters and in boldface, as shown on the 
Closing Disclosure form H-25 set forth in appendix H to Regulation Z, 
the standard form or model form, as applicable, pursuant to Sec.  
1026.38(t). The comment also would have discussed how, in the event a 
difference or an increase in costs has occurred, certain words within 
the narrative text that are included under the subheading ``Did this 
change?'' are displayed more prominently than other disclosures, and 
gives an example of such a prominent statement.
    Proposed comment 38(i)-2 would have described how a final amount 
shown to two decimal places on the ``Calculating Cash to Close'' table 
disclosed under proposed Sec.  1026.38(i) could appear to be a larger 
number than its corresponding estimate shown to the nearest dollar 
when, in fact, the apparent increase is due solely to rounding. The 
comment further would have clarified that any statement disclosed under 
the subheading ``Did this change?'' as to whether an actual amount is 
higher than its corresponding estimated amount is based on the actual, 
non-rounded estimate that would have been disclosed on the Loan 
Estimate under Sec.  1026.37(h) if it had been shown to two decimal 
places rather than a whole dollar amount. The proposed comment also 
would have provided an example of how a contrary rule could result in 
inaccurate disclosures of increases. The proposed comment would have 
reflected the Bureau's intention that the statements of increases to be 
disclosed under each subparagraph (iii) under Sec.  1026.38(i)(1) 
through (i)(8) capture true increases rather than increases due solely 
to rounding rules.
    Proposed comments 38(i)-3 and -4 would have provided guidance 
regarding the statements required by each of Sec.  
1026.38(i)(4)(iii)(A), (i)(5)(iii)(A), (i)(6)(iii)(A), (i)(7)(iii)(A), 
and (i)(8)(iii)(A) that the consumer should see the details disclosed 
pursuant to another subsection or other subsections within proposed 
Sec.  1026.38, or that an amount has increased or decreased from an 
estimated amount, as applicable. The comments would have noted that, 
for example, Sec.  1026.38(i)(7)(iii)(A) requires a statement that the 
consumer should see the details disclosed pursuant to Sec.  
1026.38(j)(2)(v), and, as shown on Closing Disclosure form H-25, that 
statement could read: ``See Seller Credits in Section L.'' These 
comments also provide guidance regarding the required statements that 
are not illustrated as samples in form H-25 of appendix H.
    Commenters stated several reasons for why the Calculating Cash To 
Close table proposed under Sec.  1026.38(i) would not work in 
transactions without a seller, including the disclosure of negative 
numbers for cash received by the consumer, and the different nature of 
a transaction without a seller. The Bureau is addressing the differing 
nature of a transaction without a seller by providing an alternative 
Calculating Cash To Close table under Sec.  1026.38, as discussed in 
the section-by-section analysis of Sec.  1026.38(e) above. However, the 
Bureau believes that negative numbers, to a certain extent, are 
necessary to be used in order to offset charges from credits. One large 
non-bank lender commenter stated that it was unfair to require the 
creditor to know the amount of an earnest money deposit, payments to 
others, and the funds for the consumer in the calculating cash to close 
table. However, much, if not all, of the information that the commenter 
cited will be necessary to know and evaluate the loan-to-value ratio 
and other criteria in order to: (1) Determine the consumer's ability to 
repay as required under Sec.  1026.43(c); or (2) to evaluate the 
transaction for its eligibility for government loan programs and sale 
on the secondary market. Since the creditor will be evaluating this 
information in connection with underwriting the loan, the inclusion of 
the information on the Closing Disclosure should not create a 
compliance burden.
    One large bank commenter stated that there was no provision in the 
calculating cash to close table under proposed Sec.  1026.38(i) to 
compare the charges disclosed on the Loan Estimate to the charges on 
the Closing Disclosure in a more itemized fashion, such as is currently 
disclosed on page 3 of the RESPA settlement statement. The Bureau's 
consumer testing of the integrated disclosures before it issued the 
proposal has shown that consumers were confused about the disclosure of 
the charges subject to a tolerance limit and the exact extent of 
tolerance, if any, which would apply to each charge. See Kleimann 
Testing Report at 125, 134.\301\ The calculating cash to close table 
under proposed Sec.  1026.38(i) would have indicated to consumers when 
the creditor exceeded a tolerance limit. The approach tested and 
included in proposed Sec.  1026.38(i) provided clearer information to 
the consumer than the type of breakdown suggested by the large bank 
commenter.
---------------------------------------------------------------------------

    \301\ A table entitled ``Limits on Increases'' was tested in 
subsequent rounds, which also proved to be difficult for consumers 
to understand. Kleimann Testing Report at 168, 174. The information 
was instead incorporated into the calculating cash to close table. 
Kleimann Testing Report at 226. The calculating cash to close table 
subsequently assisted in consumer's understanding of why charges 
changed and if they exceeded tolerance limitations. Kleimann Testing 
Report at 248-49, 267.
---------------------------------------------------------------------------

    Several national industry trade association commenters stated that, 
while the calculating cash to close table was required to show when 
there was a tolerance violation under Sec.  1026.19(e)(3), there was no 
provision to show a tolerance cure. Tolerance cures at consummation 
could be effectuated by indicating that the charge, or a portion of a 
charge, was designated as paid by others under proposed Sec.  
1026.38(f), and thus the total amount paid by the consumer under Sec.  
1026.38(i)(1) would be within the tolerance limits of Sec.  
1026.19(e)(3). Thus, the difference discussed in Sec.  
1026.38(i)(1)(iii)(A)(2) would not

[[Page 80016]]

exceed the legal limits and no statement would be required under Sec.  
1026.38(i)(1)(iii)(A)(3). The documentation of a tolerance cure after 
consummation would be accomplished under proposed Sec.  1026.38(h)(3), 
as discussed in proposed comment 38(h)(3)-2. Therefore, the disclosure 
of tolerance cures was already addressed by other provisions of the 
proposal, all of which have been adopted by the Bureau. Several 
commenters requested additional guidance on the statements that could 
be made in the column designated ``Did this change?'' The Bureau has 
added additional guidance in the commentary and additional samples to 
appendix H to Regulation Z to provide additional guidance related to 
these disclosures.
    One title insurance company commenter stated that the amounts 
disclosed in the ``Estimate'' column of the calculating cash to close 
table under Sec.  1026.38(i) should not be rounded, and instead the 
total unrounded amount of the charges that were the basis for the 
rounded amount should be provided. This could be problematic, since the 
unrounded amounts would not have been disclosed to the consumer until 
the Closing Disclosure was provided. Thus, the consumer would not see 
the same amounts on the Loan Estimate and the ``Estimate'' column of 
the calculating cash to close table. Accordingly, the Bureau is 
adopting Sec.  1026.38(i) and its accompanying commentary as proposed. 
Based on its authority under TILA section 105(a), RESPA section 19(a), 
and Dodd-Frank Act sections 1032(a) and, for residential mortgage 
loans, 1405(b), the Bureau is requiring that the Closing Disclosure 
contain a Calculating Cash to Close table that highlights the cash to 
close amount and its critical components and compares those amounts to 
the corresponding disclosures shown on the Loan Estimate under Sec.  
1026.37(h). The Bureau believes that this disclosure will effectuate 
the purposes of TILA and RESPA by facilitating the informed use of 
credit and ensuring that consumers are provided with greater and 
timelier information on the costs of the closing process. Providing 
consumers with information about the cash to close amount, its critical 
components, and how such amounts changed from the estimated amounts 
disclosed on the Loan Estimate helps ensure that the features of the 
transaction are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to better understand the 
costs, benefits, and risks associated with the transaction, in light of 
the facts and circumstances, consistent with Dodd-Frank Act section 
1032(a). The Bureau also believes such disclosure will improve 
consumers' awareness and understanding of residential mortgage 
transactions, which is in the interest of consumers and the public, 
consistent with Dodd-Frank Act section 1405(b).
38(i)(1) Total Closing Costs
    Proposed Sec.  1026.38(i)(1)(i) and (ii) would have required the 
disclosure of a comparison of the consumer's estimated and actual 
``Total Closing Costs'' amounts. The estimated ``Total Closing Costs'' 
amount would have been the same amount that is disclosed on the Loan 
Estimate in the Calculating Cash To Close table under proposed Sec.  
1026.37(h)(1). This amount also would have matched the ``Total Closing 
Costs'' amount that is disclosed on the Loan Estimate under proposed 
Sec.  1026.37(g)(6). The actual ``Total Closing Costs'' amount would 
have been the same amount disclosed on the Closing Disclosure under 
proposed Sec.  1026.38(h)(1), reduced by the amount of any lender 
credits disclosed under proposed Sec.  1026.38(h)(3). Proposed comment 
38(i)(1)(i)-1 would have provided guidance regarding the requirement 
under proposed Sec.  1026.38(i)(1)(i) that the amount disclosed is 
labeled ``Total Closing Costs'' and that such label is accompanied by a 
reference to the disclosure of ``Total Closing Costs'' under Sec.  
1026.38(h)(1).
    Proposed Sec.  1026.38(i)(1)(iii)(A) would have specified that if 
the actual amount of ``Total Closing Costs'' is different than the 
estimated amount of such costs as shown on the Loan Estimate (unless 
the difference is due to rounding), the creditor or closing agent must 
state, under the subheading ``Did this change?,'' that the consumer 
should see the total loan costs and total other costs subtotals 
disclosed on the Closing Disclosure under proposed Sec.  1026.38(f)(4) 
and (g)(5), and must include a reference to such disclosures, as 
applicable. This language was intended to direct the consumer to the 
more detailed itemization on the Closing Disclosure of the costs that 
comprise the ``Total Closing Costs.''
    Under proposed Sec.  1026.38(i)(1)(iii)(A), the creditor or closing 
agent also would have stated the dollar amount of any excess amount of 
closing costs above the limitations on increases in closing costs under 
proposed Sec.  1026.19(e)(3), if applicable, along with language 
stating that the increase exceeds the legal limits by the dollar amount 
of the excess. The dollar amount that would have been disclosed would 
have been required to reflect the different methods of calculating such 
excess amounts under proposed Sec.  1026.19(e)(3)(i) and (ii). Proposed 
comment 38(i)(1)(iii)(A)-1 would have contained examples of how to 
calculate such excess amounts and would have clarified that because 
certain closing costs, individually, are subject to the limitations on 
increases in closing costs under proposed Sec.  1026.19(e)(3)(i) (e.g., 
origination fees, transfer taxes, charges paid by the consumer to an 
affiliate of the creditor), while other closing costs are collectively 
subject to the limitations on increases in closing costs under proposed 
Sec.  1026.19(e)(3)(ii) (e.g., recordation fees, fees paid to an 
unaffiliated third party if the creditor permitted the consumer to shop 
for the service provider), the creditor or closing agent calculates 
subtotals for each type of excess amount, and then adds such subtotals 
together to yield the dollar amount to be disclosed in the table. The 
proposed comment also would have clarified that the calculation of the 
excess amounts above the limitations on increases in closing costs 
takes into account the fact that the itemized, estimated closing costs 
disclosed on the Loan Estimate will not result in charges to the 
consumer if the service is not actually provided at or before 
consummation, and that certain itemized charges listed on the Loan 
Estimate under the subheading ``Services You Can Shop For'' may be 
subject to different limitations depending on the circumstances. 
Proposed comments 38(i)(1)(iii)(A)-2.i through -2.iii would have 
complemented commentary to proposed Sec.  1026.19(e)(3). Pursuant to 
proposed Sec.  1026.19(f)(2)(v), the creditor or closing agent would 
have been required to refund to the consumer any such excess amounts at 
consummation or within 30 days thereafter. Accordingly, the Bureau 
stated its belief that this proposed disclosure may help the consumer 
identify when a refund may be required and this information can be used 
by the consumer to request that the creditor or closing agent provide 
such refund at consummation or within 30 days thereafter.
    The Bureau did not receive additional comments concerning Sec.  
1026.38(i)(1). Accordingly, the Bureau is adopting Sec.  1026.38(i)(1) 
substantially as proposed, with modifications for clarity, a 
modification of the subheading of ``Estimate'' to ``Loan Estimate'' for 
consistency with form H-25 of appendix H to Regulation Z, and a 
modification removing the requirement to provide a reference to ``Total 
Closing Costs'' as duplicative of the

[[Page 80017]]

requirements of Sec.  1026.38(t)(3). The Bureau is modifying the design 
of these subheadings in the Closing Disclosure as discussed in more 
detail in section-by-section analysis of appendix H below. The revised 
design uses the subheading ``Loan Estimate'' instead of ``Estimate'' to 
increase understanding by consumers that the amounts disclosed in this 
column are those that were disclosed on the Loan Estimate. In the 
Bureau's pre-proposal and post-proposal qualitative consumer testing, 
consumers were able to use the Calculating Cash to Close table to 
understand their transactions and compare the estimated and final 
amounts. See Kleimann Testing Report at 248-9, 267-8; Kleimann Post-
Proposal Testing Report at 68-71. The Bureau also is modifying Sec.  
1026.38(i)(1)(iii)(A)(3) to require specific statements in the case 
that a credit is provided to the consumer under Sec.  1026.19(f)(2)(v) 
to cure a tolerance violation under Sec.  1026.19(e)(3). These 
statements are illustrated by form H-25(F) of appendix H on the 
alternative Calculating Cash to Close table under Sec.  1026.38(e), but 
are equivalent to those required under Sec.  1026.38(i)(1)(iii)(A)(3). 
The Bureau is adopting comment 38(i)(1)(iii)(A)-3 to provide guidance 
regarding these statements.
38(i)(2) Closing Costs Subtotal Paid Before Closing
    Proposed Sec.  1026.38(i)(2) would have required the disclosure of 
a comparison of the estimated and actual amounts of the ``Total Closing 
Costs'' that are paid before consummation of the transaction. The 
estimated ``Closing Costs Subtotal Paid Before Closing'' would have 
been required to be disclosed as $0. Proposed comment 38(i)(2)(i)-1 
would have clarified that this requirement is because the Loan Estimate 
does not have an equivalent disclosure under proposed Sec.  1026.37(h). 
The actual ``Closing Costs Subtotal Paid Before Closing'' would have 
been the sum of the amount disclosed on the Closing Disclosure under 
proposed Sec.  1026.38(h)(2) and designated ``Borrower-Paid Before 
Closing.'' Proposed Sec.  1026.38(i)(2)(iii) would have specified that 
if the actual amount of ``Closing Costs Subtotal Paid Before Closing'' 
is different than the estimated amount, in this case $0 (unless the 
difference is due to rounding), the creditor or closing agent must 
state under the subheading ``Did this change?'' that the consumer paid 
such costs before consummation. This language was intended to remind 
the consumer that he or she paid certain transaction closing costs 
prior to consummation and that such costs will be subtracted from the 
actual cash to close amount. Proposed comment 38(i)(2)(iii)(B)-1 would 
have provided guidance regarding the requirement to disclose whether 
the estimated and final amounts are equal.
    The Bureau did not receive comments concerning Sec.  1026.38(i)(2). 
Accordingly, the Bureau is adopting Sec.  1026.38(i)(2) and its 
accompanying commentary as proposed, with modifications for clarity, 
and a modification of the subheading of ``Estimate'' to ``Loan 
Estimate'' for consistency with form H-25 of appendix H to Regulation 
Z.
38(i)(3) Closing Costs Financed
    Proposed Sec.  1026.38(i)(3) would have required the disclosure of 
a comparison of the estimated and actual amounts of the ``Total Closing 
Costs'' that are financed. The estimated ``Closing Costs Financed'' 
amount would have been the same amount that is disclosed in the 
``Calculating Cash to Close'' table in the Loan Estimate under proposed 
Sec.  1026.37(h)(2). The actual ``Closing Costs Financed'' amount would 
have reflected any changes to the amount previously disclosed on the 
Loan Estimate. Proposed Sec.  1026.38(i)(3)(iii) would have specified 
that if the actual amount of ``Closing Costs Financed'' is different 
than the estimated amount (unless the excess is due to rounding), the 
creditor or closing agent must state under the subheading ``Did this 
change?'' that the consumer included these closing costs in the loan 
amount, which increased the loan amount. The Bureau believed this 
explanatory language would have been particularly helpful to consumers 
for two reasons. First, an increase in closing costs financed may 
trigger a sizeable decrease in the cash to close, which in turn could 
create a false impression that the overall transaction costs to the 
consumer decreased. Second, during consumer testing, when consumers 
were presented with a scenario involving a loan amount that increased 
after delivery of the Loan Estimate, some of the consumers had 
difficultly isolating the increase in closing costs financed as the 
reason for the increased loan amount. See Kleimann Testing Report at 
250. The Bureau believed this disclosure may assist consumers in 
understanding that the financed portion of the closing costs are paid 
for through the loan proceeds.
    The Bureau did not receive comments concerning Sec.  1026.38(i)(3). 
Accordingly, the Bureau is adopting Sec.  1026.38(i)(3) and its 
accompanying commentary as proposed, with modifications for clarity, a 
modification of the subheading of ``Estimate'' to ``Loan Estimate,'' 
and to change the label of ``Closing Costs Financed'' to ``Closing 
Costs Financed (Paid from your Loan Amount),'' for consistency with 
form H-25 of appendix H to Regulation Z. In addition to the design 
modification described above under the section-by-section analysis of 
Sec.  1026.38(i)(1), the Bureau is modifying the design of the Closing 
Disclosure to change the parenthetical in the label of Closing Costs 
Financed from ``Included in Loan Amount'' to ``Paid From Your Loan 
Amount'' to provide additional clarity regarding the use of loan 
proceeds when financing closing costs (as discussed in more detail in 
section-by-section analysis of appendix H below). In the Bureau's post-
proposal qualitative consumer testing, consumers were able to use the 
Calculating Cash to Close table to understand their transactions and 
compare the estimated and final amounts. See Kleimann Post-Proposal 
Testing Report at 68-71.
38(i)(4) Down Payment/Funds From Borrower
    Proposed Sec.  1026.38(i)(4) would have required the disclosure of 
a comparison of the estimated and actual amounts of the ``Down Payment/
Funds from Borrower.'' Down payment and funds from borrower are related 
concepts, but down payment is applicable to a transaction that is a 
purchase as defined in proposed Sec.  1026.37(a)(9)(i), while funds 
from borrower relates to a transaction other than a purchase. Under 
proposed Sec.  1026.38(i)(4)(i), the estimated ``Down Payment/Funds 
from Borrower'' amount would have been the same amount that is 
disclosed on the ``Calculating Cash To Close'' table in the Loan 
Estimate under proposed Sec.  1026.37(h)(3). Under proposed Sec.  
1026.38(i)(4)(ii)(A), in a transaction that is a purchase as defined in 
proposed Sec.  1026.37(a)(9)(i), the actual amount of the ``Down 
Payment/Funds from Borrower'' would have been the actual amount of the 
difference between the purchase price of the property and the principal 
amount of the credit extended, stated as a positive number. Under 
proposed Sec.  1026.38(i)(4)(ii)(B), in a transaction other than a 
purchase as defined in proposed Sec.  1026.37(a)(9)(i), the actual 
amount of ``Down Payment/Funds from Borrower'' would have been 
determined in accordance with Sec.  1026.38(i)(6)(iv), by subtracting 
from the total amount of all existing debt being satisfied in the real 
estate closing and disclosed under Sec.  1026.38(j)(1)(v) (except to 
the extent the satisfaction of such existing debt is disclosed under 
Sec.  1026.38(g)) the principal amount of the credit extended. If such 
calculation

[[Page 80018]]

would have yielded a positive number, then the positive number is 
disclosed under proposed Sec.  1026.38(i)(4)(ii)(B); otherwise, $0.00 
is disclosed.
    Proposed comment 38(i)(4)(ii)(A)-1 would have provided an example 
of the down payment changing in a particular transaction. Proposed 
comment 38(i)(4)(ii)(B)-1 would have provided further clarification 
about how the actual ``Down Payment/Funds from Borrower'' amount is 
determined under proposed Sec.  1026.38(i)(6)(iv), and gives an example 
of when that actual amount may change from the corresponding estimated 
amount.
    Proposed Sec.  1026.38(i)(4)(iii)(A) would have specified that if 
the actual amount of ``Down Payment/Funds from Borrower'' is different 
than the estimated amount (unless the difference is due to rounding), 
the creditor or closing agent must state under the subheading ``Did 
this change?'' that the consumer increased or decreased the payment, as 
applicable, and also state that the consumer should see the details 
disclosed under Sec.  1026.38(j)(1) or (j)(2), as applicable. This 
language was intended to remind the consumer that he or she will be 
contributing a different amount of his or her own funds toward the cash 
to close, and therefore must make arrangements prior to the date of 
consummation to procure any necessary funds. Comment 38(i)(4)(iii)(A)-1 
would have clarified the requirement under Sec.  1026.38(i)(4)(iii)(A) 
that a statement be given that the consumer has increased or decreased 
this payment, as applicable, along with a statement that the consumer 
should see the details disclosed under Sec.  1026.38(j)(1) or (j)(2), 
as applicable. The comment would have noted that, in the event the 
purchase price of the property increased, that statement can read, for 
example: ``You increased this payment. See details in Section K.'' In 
the event the loan amount decreased, that statement can read, for 
example, ``You increased this payment. See details in Section L.'' This 
language was intended to direct the consumer to the section within the 
Closing Disclosure containing the information that accounts for the 
increase in the ``Down Payment/Funds From Borrower'' amount.
    The Bureau did not receive comments concerning Sec.  1026.38(i)(4). 
Accordingly, the Bureau is adopting Sec.  1026.38(i)(4) and its 
accompanying commentary as proposed, with a modification for clarity, 
and a modification of the subheading of ``Estimate'' to ``Loan 
Estimate'' for consistency with form H-25 of appendix H to Regulation 
Z.
38(i)(5) Deposit
    Proposed Sec.  1026.38(i)(5) would have required the disclosure of 
a comparison of the estimated and actual amounts of the ``Deposit.'' 
The estimated ``Deposit'' amount would have been the same amount that 
is disclosed in the ``Calculating Cash To Close'' table on the Loan 
Estimate under proposed Sec.  1026.37(h)(4). The actual ``Deposit'' 
amount would have been the same amount that is disclosed on the Closing 
Disclosure under proposed Sec.  1026.38(j)(2)(ii). Proposed Sec.  
1026.38(i)(5)(iii) would have specified that if the actual amount of 
``Deposit'' is different than the estimated amount (unless the 
difference is due to rounding), the creditor or closing agent must 
state, under the subheading ``Did this change?,'' that the consumer 
increased or decreased this payment, as applicable, and should see the 
details disclosed under Sec.  1026.38(j)(2)(ii). This language was 
intended to direct the consumer to the section within the Closing 
Disclosure containing the itemization of the deposit in the Closing 
Disclosure.
    The Bureau did not receive comments concerning Sec.  1026.38(i). 
Accordingly, the Bureau is adopting Sec.  1026.38(i)(5) as proposed, 
with modifications for clarity, and a modification of the subheading of 
``Estimate'' to ``Loan Estimate'' for consistency with form H-25 of 
appendix H to Regulation Z. In addition, the Bureau is adopting new 
comment 38(i)(5)-1 to provide additional clarity regarding the 
disclosure required under Sec.  1026.38(i)(5) in transactions in which 
there is no deposit.
38(i)(6) Funds for Borrower
    Proposed Sec.  1026.38(i)(6) would have required the disclosure of 
a comparison of the estimated and actual amounts of the ``Funds for 
Borrower.'' Like proposed Sec.  1026.37(h)(5), this amount was intended 
to represent generally the amount to be disbursed to the consumer or 
used at the consumer's discretion at consummation of the transaction, 
such as in cash-out refinance transactions. The determination of 
whether the transaction will result in ``Funds for Borrower'' would 
have been made under proposed Sec.  1026.38(i)(6)(iv). The estimated 
``Funds for Borrower'' amount disclosed under proposed Sec.  
1026.38(i)(6)(i) would have been the same amount that is disclosed in 
the ``Calculating Cash To Close'' table in the Loan Estimate under 
proposed Sec.  1026.37(h)(5). Proposed Sec.  1026.38(i)(6)(ii) would 
have provided that the actual ``Funds for Borrower'' amount disclosed 
is determined pursuant to proposed Sec.  1026.38(i)(6)(iv), by 
subtracting from the total amount of all existing debt being satisfied 
in the real estate closing and disclosed under Sec.  1026.38(j)(1)(v) 
(except to the extent the satisfaction of such existing debt is 
disclosed under Sec.  1026.38(g)) the principal amount of the credit 
extended (excluding any amount disclosed under Sec.  
1026.38(i)(3)(ii)). The exclusion of any amount disclosed under Sec.  
1026.38(i)(3)(ii) would have been necessary since that amount of the 
credit extended has already been accounted for in the cash to close 
calculation by inclusion in proposed Sec.  1026.38(i)(3)(ii). If such 
calculation yielded a negative number, then the negative number is 
disclosed under proposed Sec.  1026.38(i)(6)(ii); otherwise, $0 is 
disclosed.
    Proposed comment 38(i)(6)(ii)-1 would have provided further 
clarification about how the actual ``Funds for Borrower'' amount is 
determined under Sec.  1026.38(i)(6)(iv), and to whom such amount is 
disbursed. Proposed Sec.  1026.38(i)(6)(iii) would have provided that, 
if the actual amount of ``Funds for Borrower'' is different than the 
estimated amount (unless the difference is due to rounding), the 
creditor or closing agent must state in the subheading ``Did this 
change?'' that the consumer's available funds from the loan amount have 
increased or decreased, as applicable. This language was intended to 
remind the consumer that a different amount of loan proceeds will be 
available following payoff of existing loans.
    The Bureau did not receive comments concerning Sec.  1026.38(i)(6). 
Accordingly, the Bureau is adopting Sec.  1026.38(i)(6) and its 
accompanying commentary as proposed, with a minor modification to 
indicate that zero amounts are disclosed as ``$0,'' without decimal 
places denoting cents, modifications for clarity, and a modification of 
the subheading of ``Estimate'' to ``Loan Estimate'' for consistency 
with form H-25 of appendix H to Regulation Z.
38(i)(7) Seller Credits
    Proposed Sec.  1026.38(i)(7) would have required the disclosure of 
a comparison of the estimated and actual amounts of the ``Seller 
Credits.'' ``Seller Credits'' would have been described in proposed 
Sec.  1026.38(j)(2)(v) and corresponding commentary. The estimated 
``Seller Credits'' amount would have been the same amount that is 
disclosed on the ``Calculating Cash to Close'' table in the Loan 
Estimate under proposed Sec.  1026.37(h)(6). The actual ``Seller 
Credits'' amount would have been the same amount disclosed on the 
Closing

[[Page 80019]]

Disclosure under proposed Sec.  1026.38(j)(2)(v). Proposed comment 
38(i)(7)(ii)-1 would have clarified that the ``Final'' amount reflects 
any change, following the delivery of the Loan Estimate, in the amount 
of funds given by the seller to the consumer for generalized credits 
for closing costs or for allowances for items purchased separately, as 
distinguished from payments by the seller for items attributable to 
periods of time prior to consummation (which are considered 
``Adjustments and Other Credits'' separately disclosed under proposed 
Sec.  1026.38(i)(8)).
    Proposed Sec.  1026.38(i)(7)(iii) would have specified that, if the 
actual amount of ``Seller Credits'' is different than the estimated 
amount (unless the difference is due to rounding), the creditor or 
closing agent must state that fact under the subheading ``Did this 
change?,'' and state that the consumer should see the details disclosed 
under Sec.  1026.38(j)(2)(v). This language was intended to direct the 
consumer to the section within the Closing Disclosure containing the 
itemization of seller credits.
    The Bureau did not receive comments concerning Sec.  1026.38(i)(7). 
Accordingly, the Bureau is adopting Sec.  1026.38(i)(7) and its 
accompanying commentary as proposed, with modifications for clarity, 
and a modification of the subheading of ``Estimate'' to ``Loan 
Estimate'' for consistency with form H-25 of appendix H to Regulation 
Z.
38(i)(8) Adjustments and Other Credits
    Proposed Sec.  1026.38(i)(8) would have required the disclosure of 
a comparison of the estimated and actual amounts of the ``Adjustments 
and Other Credits.'' ``Adjustments and Other Credits'' would have been 
described in proposed Sec.  1026.38(j)(2)(vi) through (xi) and 
corresponding commentary. The estimated ``Adjustments and Other 
Credits'' amount is the same amount that would have been disclosed on 
the ``Calculating Cash to Close'' table in the Loan Estimate under 
proposed Sec.  1026.37(h)(7). The actual ``Adjustments and Other 
Credits'' amount would have been equal to the total amount of the 
adjustments and other credits due from the consumer at consummation 
(i.e., the amounts disclosed on the Closing Disclosure under Sec.  
1026.38(j)(1)(v) through (x)), reduced by the total amount of the 
adjustments and other credits already paid by or on behalf of the 
consumer at consummation (i.e., the amounts disclosed on the Closing 
Disclosure under Sec.  1026.38(j)(2)(vi) through (xi)). Proposed Sec.  
1026.38(i)(8)(iii) would have specified that if the actual amount of 
``Adjustments and Other Credits'' is different than the estimated 
amount (unless the difference is due to rounding), the creditor or 
closing agent must state that fact under the subheading ``Did this 
change?,'' and state that the consumer should see the details disclosed 
under Sec.  1026.38(j)(1)(v) through (x) and (j)(2)(vi) through (xi). 
This language was intended to direct the consumer to the sections 
within the Closing Disclosure containing the itemization of the 
adjustments and other credits. Proposed comment 38(i)(8)(ii)-1 would 
have given examples of items that may be adjustments and other credits, 
and would have clarified that if the calculation required by Sec.  
1026.38(i)(8)(ii) yields a negative number, the creditor or closing 
agent discloses it as such.
    One industry commenter stated that additional guidance was needed 
concerning the amount to be disclosed pursuant to Sec.  1026.38(i)(8) 
for calculations without a seller, since the amounts under Sec.  
1026.38(j) may not be disclosed. An amount disclosed pursuant to Sec.  
1026.38(i)(8) in transactions without a seller would be $0 since there 
would be no amount disclosed under Sec.  1026.38(j). However, a 
creditor can choose to use the alternative calculating cash to close 
table adopted in Sec.  1026.38(e) as discussed in the section-by-
section analysis of Sec.  1026.38(e), above, in which case, the 
creditor would not disclose $0 under Sec.  1026.38(i)(8). The Bureau is 
adopting Sec.  1026.38(i)(8) and its accompanying commentary as 
proposed, with modifications for clarity, and a modification of the 
subheading of ``Estimate'' to ``Loan Estimate'' for consistency with 
form H-25 of appendix H to Regulation Z.
38(i)(9) Cash To Close
    Proposed Sec.  1026.38(i)(9) would have required the disclosure of 
a comparison of the estimated and actual amounts of the ``Cash To 
Close.'' The estimated ``Cash To Close'' amount would have been the 
same amount that is disclosed on the ``Calculating Cash To Close'' 
table in the Loan Estimate under proposed Sec.  1026.37(h)(8) as 
``Estimated Cash To Close.'' The actual ``Cash To Close'' amount would 
have been the sum of the amounts disclosed under proposed Sec.  
1026.38(i)(1) through (8). The label ``Cash To Close'' and the 
estimated and actual amounts listed in the table would have been 
disclosed more prominently than other disclosures in Sec.  1026.38(i), 
as a means of emphasizing the importance of the cash To close amount. 
Proposed comment 38(i)(9)(ii)-1 would have clarified that the ``Final'' 
amount of ``Cash To Close'' disclosed under Sec.  1026.38(i)(9)(ii) 
equals the amount disclosed on the Closing Disclosure as ``Cash To 
Close'' under Sec.  1026.38(j)(3)(iii). The proposed comment also would 
have clarified that if the calculation required by Sec.  
1026.38(i)(9)(ii) yielded a negative number, the creditor or closing 
agent discloses it as such. Proposed comment 38(i)(9)(ii)-2 would have 
discussed how the disclosure of the ``Final'' amount of ``Cash To 
Close'' under Sec.  1026.38(i)(9)(ii) is more prominent than the other 
disclosures under Sec.  1026.38(i) and would have clarified that this 
more prominent disclosure can take the form, for example, of boldface, 
as shown on the Closing Disclosure form H-25(B).
    The Bureau did not receive comments concerning Sec.  1026.38(i)(9). 
Accordingly, the Bureau is adopting Sec.  1026.38(i)(9) and its 
accompanying commentary substantially as proposed, with a modification 
of the subheading of ``Estimate'' to ``Loan Estimate'' for consistency 
with form H-25 of appendix H to Regulation Z and with a modification to 
Sec.  1026.38(i)(9)(ii) to clarify that the sum disclosed is the sum of 
the amounts disclosed under the subheading ``Final'' in paragraphs 
(i)(1) through (i))(8) and not the sum of every amount disclosed in 
those paragraphs.
38(j) and (k) Summaries of Borrower's and Seller's Transactions
    Proposed Sec.  1026.38(j) and (k) would have required that the 
creditor or closing agent provide summaries of the consumer and seller 
portions of the transaction. Currently, RESPA section 4 requires the 
settlement agent to clearly and conspicuously itemize all charges 
imposed upon the borrower and seller in connection with the settlement. 
See 12 U.S.C. 2603. Regulation X implements these requirements by 
requiring the settlement agent to provide summaries of the consumer's 
and seller's transactions on the RESPA settlement statement. See 
Regulation X Sec.  1024.8 and appendix A. Dodd-Frank Act section 
1032(f) requires that the Bureau propose disclosures that combine the 
disclosures required under TILA and RESPA sections 4 and 5 into a 
single, integrated disclosure for mortgage loan transactions covered 
under TILA and RESPA.
    Several commenters stated that the current RESPA settlement 
statement number system should be retained. However, the format 
required by proposed Sec.  1026.38(t), as illustrated by proposed form 
H-25 of appendix H to Regulation Z, for the information

[[Page 80020]]

required by proposed Sec.  1026.38(j) and (k) contains a two-digit line 
numbering system, in contrast to the three-digit line numbering system 
for this information on the current RESPA settlement statement. At the 
Bureau's consumer testing, consumer participants appeared overwhelmed 
by the three- and four-digit line numbers on prototypes that contained 
line numbers similar to the current RESPA settlement statement. As 
described above in part III, the Bureau is also mindful of the risks of 
information overload to consumers. The Bureau believes that the 
increased amount of numbers on the page from the three- and four-digit 
line numbering system may detract significantly from the consumer's 
ability to engage with the Closing Disclosure. The prototypes that the 
Bureau tested that contained only a two-digit line numbering system 
performed better with consumers, and were more effective at enabling 
them to understand their actual closing costs and the differences 
between the estimated and actual amounts. In addition, as described 
above in the section-by-section analysis of Sec.  1026.38(f) and (g), 
the use of this two-digit line numbering system for the information 
required by Sec.  1026.38(f) and (g) allows the Loan Estimate and 
Closing Disclosure to match more closely, which the Bureau's consumer 
testing indicates better enables consumers to understand their 
transaction. See the section-by-section analysis of Sec.  1026.38(f) 
and (g) above for more detail regarding the two-digit line numbering 
system. During the Small Business Review Panel, several settlement 
agents and one mortgage company requested that the line numbers from 
the current RESPA settlement statement be retained, stating that using 
the revised line numbers in the prototype integrated Closing Disclosure 
would significantly increase programming costs. See Small Business 
Review Panel Report at 20, 28. Based on this feedback, the Bureau 
sought comment on whether the use of line numbers will lower software-
related costs on industry, and the exact amount of the savings given 
the rest of the changes contemplated by this proposal, while also 
improving consumer understanding of the loan terms and costs at the 
consummation of the credit transaction and the closing of the real 
estate transaction.
    Commenters did not provide the information sought by the Bureau, 
other than short, conclusory estimates of costs associated with 
implementation without discussion of the potential savings of the rest 
of the proposed rule. One title insurance company commenter stated that 
the separation of the Closing Disclosure into two disclosures, one for 
the consumer's transaction and one for the seller's transaction, should 
be mandatory under proposed Sec.  1026.38(j), and not permissive as 
provided under proposed Sec.  1026.38(t)(5)(vi) and (vii). In proposing 
Sec.  1026.38(t)(5)(vi) and (vii), the Bureau sought to balance privacy 
concerns and more restrictive State law requirements with the mandated 
combination of the existing TILA and RESPA disclosures. This approach 
is consistent with current RESPA settlement statement requirements. 12 
CFR 1024.9(a)(6). Even if the consumer and seller are provided with 
separate disclosures, creditors may still prepare, or require that a 
settlement agent prepare, a complete Closing Disclosure to document 
compliance and to evaluate the transaction in accordance with 
governmental loan program and secondary market requirements to 
underwrite the mortgage.
    Several commenters stated that it would be easier to provide two 
separate disclosure documents at consummation: (1) One representing the 
transaction between the creditor and the consumer; and (2) one 
representing the transaction between the consumer and seller. However, 
the Bureau has found through its consumer testing and in its analysis 
of the comments received, that the inclusion of the summaries of the 
consumer's and seller's transactions enable consumers to fully provide 
effective advance notice to home buyers of settlement costs. See 
Kleimann Testing Report at xvii; Kleimann Quantitative Study Report at 
67-71. To separate the Closing Disclosure into two separate 
disclosures, one for the transaction between the creditor and consumer 
and another for the transaction between the consumer and seller would 
be impracticable, if not impossible, due to the intertwined nature of 
the two transactions. Without a real estate purchase contract, there 
would not be a transaction between the consumer and the creditor. And, 
without a mortgage loan, there would not be a transaction between the 
consumer and the seller. Often, costs associated with one transaction 
are accounted for or allocated between the parties and have a direct 
effect on the other transaction. For example, seller concessions from 
the real estate purchase contract can change the availability or terms 
of the loan transaction if the concessions are large enough to change 
the loan-to-value ratio and the amount of the consumer's down payment. 
In addition, at the Bureau's Quantitative Study, consumer participants 
using the Bureau's integrated disclosures performed statistically 
significantly better at understanding their final loan terms and costs 
than consumer participants using the current RESPA settlement statement 
and final TILA disclosure. See Kleimann Quantitative Study Report at 
68-9. Accordingly, the Bureau is adopting Sec.  1026.38(j) and (k) with 
applicable modifications as discussed further below.
    In addition to effectuating Dodd-Frank Act section 1032(f), the 
Bureau believes that including on the Closing Disclosure summaries of 
the consumer's and seller's transactions will effectuate the purposes 
of TILA and RESPA by promoting the informed use of credit and more 
effective advance notice to home buyers and sellers of settlement 
costs, respectively. The summaries will assist consumers in 
understanding of the resolution of their legal obligations to sellers 
under the terms of the sales contract for the property which will be 
used to secure the credit extended to facilitate the purchase. The 
summaries also will assist sellers in understanding the charges they 
are required to pay under the sales contract. Moreover, consistent with 
section 1032(a) of the Dodd-Frank Act, the addition of the summaries of 
the consumer's and seller's transactions will ensure that the features 
of consumer credit transactions secured by real property are fully, 
accurately, and effectively disclosed to consumers in a manner that 
permits consumers to understand the costs, benefits, and risks 
associated with the product or service, in light of the facts and 
circumstances. Therefore, the Bureau is exercising its authority under 
TILA section 105(a), RESPA section 19(a), and Dodd-Frank Act section 
1032(a) to require the creditor or closing agent to provide the 
summaries of the consumer's and seller's transactions that are 
currently provided in the RESPA settlement statement. The required 
information regarding the consumer's transaction is set forth in Sec.  
1026.38(j) and the required information regarding the seller's 
transaction is set forth in Sec.  1026.38(k). Furthermore, for the 
reasons stated above, the rule is in the interest of consumers and in 
the public interest, consistent with Dodd-Frank Act section 1405(b).
38(j) Summary of Borrower's Transaction
    Proposed Sec.  1026.38(j) would have required that the creditor or 
closing agent provide the summaries of the consumer's and seller's 
transactions in separate tables under the heading ``Summaries of 
Transactions'' with a

[[Page 80021]]

statement that the purpose of the table is to summarize the 
transaction. Proposed Sec.  1026.38(j) also would have listed the 
information that must be provided under the subheading ``Borrower's 
Transaction.'' Proposed comment 38(j)-1 would have clarified that it is 
permissible to give two separate Closing Disclosures to the consumer 
and seller. This comment would have incorporated guidance provided in 
the HUD RESPA FAQs p. 44, 4 (``HUD-1--General''). Comment 
38(j)-2 would have clarified that additional lines can be added to the 
Closing Disclosure to show customary recitals and information used 
locally in real estate closings. This comment would have incorporated 
guidance provided in HUD RESPA FAQs p. 44, 5 and 10 
(``HUD-1--General''). Proposed comment 38(j)-3 would have clarified 
that the amounts disclosed under the following provisions of proposed 
Sec.  1026.38(j) are the same as the amounts disclosed under the 
corresponding provisions of proposed Sec.  1026.38(k): proposed Sec.  
1026.38(j)(1)(ii) and proposed Sec.  1026.38(k)(1)(ii); proposed Sec.  
1026.38(j)(1)(iii) and proposed Sec.  1026.38(k)(1)(iii); if the amount 
disclosed under proposed Sec.  1026.38(j)(1)(v) is attributable to 
contractual adjustments between the consumer and seller, proposed Sec.  
1026.38(j)(1)(v) and proposed Sec.  1026.38(k)(1)(iv); proposed Sec.  
1026.38(j)(1)(vii) and proposed Sec.  1026.38(k)(1)(vi); proposed Sec.  
1026.38(j)(1)(viii) and proposed Sec.  1026.38(k)(1)(vii); proposed 
Sec.  1026.38(j)(1)(ix) and proposed Sec.  1026.38(k)(1)(viii); 
proposed Sec.  1026.38(j)(1)(x) and proposed Sec.  1026.38(k)(1)(ix); 
proposed Sec.  1026.38(j)(2)(iv) and proposed Sec.  1026.38(k)(2)(iv); 
proposed Sec.  1026.38(j)(2)(v) and proposed Sec.  1026.38(k)(2)(vii); 
proposed Sec.  1026.38(j)(2)(viii) and proposed Sec.  1026.38(k)(2)(x); 
proposed Sec.  1026.38(j)(2)(ix) and proposed Sec.  1026.38(k)(2)(xi); 
proposed Sec.  1026.38(j)(2)(x) and proposed Sec.  1026.38(k)(2)(xii); 
and proposed Sec.  1026.38(j)(2)(xi) and proposed Sec.  
1026.38(k)(2)(xiii). The Bureau did not receive comments on Sec.  
1026.38(j), generally. Accordingly, the Bureau is adopting Sec.  
1026.38(j) and its accompanying commentary as proposed, with 
modifications for clarity and as specifically discussed below.
38(j)(1) Itemization of Amounts Due From Borrower
    Proposed Sec.  1026.38(j)(1)(i) would have required the creditor or 
closing agent to disclose the label ``Due from Borrower at Closing'' 
and the total amount due from the consumer at closing, calculated as 
the sum of items required to be disclosed under proposed Sec.  
1026.38(j)(1)(ii) through (x), excluding items paid from funds other 
than closing funds defined under proposed Sec.  1026.38(j)(4)(i). Below 
this label proposed Sec.  1026.38(j)(ii) would have required the 
creditor or closing agent to provide a reference to the sale price of 
the property and the amount of the contract sales price of the property 
being sold, excluding the price of any items of tangible personal 
property if the consumer and seller have agreed to a separate price for 
such items. In addition, below the same label, a reference to the 
subtotal of closing costs paid at closing by the consumer with 
adjustments for items paid by the seller in advance also would have 
been required to be provided by the creditor or closing agent. Proposed 
comment 38(j)(1)(ii)-1 would have clarified that, for purposes of this 
disclosure, personal property is defined by State law, but could 
include such items as carpets, drapes, and appliances. Manufactured 
homes would not have been considered personal property for purposes of 
proposed Sec.  1026.38(j)(1)(ii). This comment would have incorporated 
guidance currently provided in the instructions for RESPA settlement 
statement line 102 in appendix A to Regulation X. Proposed Sec.  
1026.38(j)(1)(iii) would have required the creditor or closing agent to 
provide a reference to the sales price of any tangible personal 
property included in the sale that is not included in the sales price 
disclosed under proposed Sec.  1026.38(j)(1)(ii).
    Proposed Sec.  1026.38(j)(1)(iv) would have required the creditor 
or closing agent to provide a reference to the subtotal of closing 
costs paid at closing by the consumer and to disclose the amount of 
closing costs paid by the consumer at closing. Proposed Sec.  
1026.38(j)(1)(v) would have required the creditor or closing agent to 
describe and disclose the amount of any additional items that the 
seller has already paid but are attributable to a time after closing 
and therefore will be used by the consumer. Also, proposed Sec.  
1026.38(j)(1)(v) would have required a description and the cost of any 
other items owed by the consumer not otherwise disclosed under proposed 
Sec.  1026.38(f), (g), or (j). Proposed comment 38(j)(1)(v)-1 would 
have clarified that items described and disclosed under Sec.  
1026.38(j)(v) can include: any balance in the seller's reserve account 
held in connection with an existing loan, if assigned to the consumer 
in a loan assumption case; any rent the consumer would collect after 
closing for a time period prior to closing; or the treatment of a 
security deposit. Proposed comment 38(j)(1)(v)-2 would have clarified 
costs owed by the consumer not otherwise disclosed under proposed Sec.  
1026.38(f), (g), or (j) will not have a parallel amount disclosed under 
proposed Sec.  1026.38(k)(1)(iv).
    Proposed Sec.  1026.38(j)(1)(vi) would have required the creditor 
or closing agent to provide a reference to adjustments paid by the 
seller in advance. Proposed Sec.  1026.38(j)(1)(vii) would have 
required the creditor or closing agent to provide a reference to city/
town taxes, the time period that the consumer is responsible to 
reimburse the seller for any such prepaid taxes, and the prorated 
amount of any such prepaid taxes due from the consumer at closing. 
Proposed Sec.  1026.38(j)(1)(viii) would have required the creditor or 
closing agent to provide a reference to county taxes, the time period 
that the consumer is responsible for reimbursing the seller for any 
such prepaid taxes, and the prorated amount of any such prepaid taxes 
due from the consumer at closing. Proposed Sec.  1026.38(j)(1)(ix) 
would have required the creditor or closing agent to provide a 
reference to assessments, the time period that the consumer is 
responsible for reimbursing the seller for any such prepaid 
assessments, and the prorated amount of any such prepaid assessment due 
from the consumer at closing. Proposed Sec.  1026.38(j)(1)(x) would 
have required the creditor or closing agent to provide a description 
and amount of any additional items paid by the seller prior to closing 
that are due from the consumer at closing. Proposed comment 
38(j)(1)(x)-1 would have clarified that amounts disclosed under 
proposed Sec.  1026.38(j)(1)(x) could be for additional taxes not 
disclosed under proposed Sec.  1026.38(j)(1)(vii) and (viii), flood and 
hazard insurance premiums where the consumer is being substituted as an 
insured under the same policy, mortgage insurance in loan assumptions, 
planned unit development or condominium association assessments paid in 
advance, fuel or other supplies on hand purchased by the seller which 
the consumer will use when consumer takes possession of the property, 
and ground rent paid in advance. This comment would have incorporated 
instructions for RESPA settlement statement lines 106-112 in appendix A 
to Regulation X.
    The Bureau did not receive comments concerning the required 
disclosures

[[Page 80022]]

under proposed Sec.  1026.38(j)(1). Accordingly, the Bureau is adopting 
Sec.  1026.38(j)(1) and its accompanying commentary as proposed, with a 
minor modification to the label under Sec.  1026.38(j)(1)(iv) to 
conform to form H-25.
38(j)(2) Itemization of Amounts Already Paid by or on Behalf of 
Borrower
    Proposed Sec.  1026.38(j)(2)(i) would have required the creditor or 
closing agent to disclose the label ``Paid Already by or on Behalf of 
Borrower at Closing'' and the total amount paid by or on behalf of the 
consumer prior to closing, calculated as the sum of items required to 
be disclosed under Sec.  1026.38(j)(2)(ii) through (xi), excluding 
items paid from funds other than closing funds defined under Sec.  
1026.38(j)(4)(i). Below this label, Sec.  1026.38(j)(2)(ii) would have 
required the creditor or closing agent to provide a reference to the 
amount of the deposit, the consumer's loan amount, the existing loans 
assumed or taken subject to at closing, seller credit, other credits, 
and adjustments for items unpaid by seller. Proposed comment 
38(j)(2)(ii)-1 would have clarified that the deposit is any amount paid 
into a trust account by the consumer under the contract of sale for 
real estate. This would have been a change from the current definition 
of deposit in the instructions for RESPA settlement statement line 201 
in appendix A to Regulation X, that define the deposit as any amount 
paid against the sales price prior to settlement, because the amount of 
the down payment or funds from the consumer disclosed under Sec.  
1026.38(i)(4) may also be paid prior to closing. To differentiate 
between the down payment amount and the deposit amount in Sec.  
1026.38(i)(4), the amount of the deposit would have needed to be 
specified separately from other payments by the consumer against the 
sales price prior to closing. Proposed comment 38(j)(2)(ii)-2 would 
have clarified that the amount of the deposit should be reduced by a 
commensurate amount if any of the deposit is used to pay for a closing 
cost before closing. Instead, the charge for the closing cost paid from 
the deposit would have been designated as borrower-paid before closing 
under Sec.  1026.38(f)(1) or (g)(1), as applicable.
    Proposed Sec.  1026.38(j)(2)(iii) would have required the creditor 
or closing agent to provide a reference to the principal amount of the 
consumer's new loan and the amount of the new loan made by the creditor 
or the amount of the first user loan. Proposed comment 38(j)(2)(iii)-1 
would have clarified that the first user loan amount disclosed under 
Sec.  1026.38(j)(2)(iii) is used to finance construction of a new 
structure or purchase of a manufactured home and that how to disclose a 
first user loan will depend on whether it is known if the manufactured 
home will be considered real property at the time of consummation. This 
comment would have incorporated guidance currently provided in the 
instructions for RESPA settlement statement line 202 in appendix A to 
Regulation X and HUD RESPA FAQs p. 47, 2 (``HUD-1--200 
series'').
    Proposed Sec.  1026.38(j)(2)(iv) would have required the creditor 
or closing agent to provide a reference to existing loans assumed or 
taken subject to at closing by the consumer and the amount of those 
loans. Proposed comment 38(j)(2)(iv)-1 would have clarified that the 
amount that must be disclosed under proposed Sec.  1026.38(j)(2)(iv) is 
the outstanding amount of any loan that the consumer is assuming, or 
subject to which the consumer is taking title to the property. This 
comment would have incorporated guidance currently provided in the 
instructions for RESPA settlement statement line 203 in appendix A to 
Regulation X. One title insurance company commenter stated that when 
multiple loans are being assumed, each loan should have a separate 
itemization. However, an additional itemization for each loan is not 
necessary for assumed loans, as an aggregate amount is sufficient to 
describe the nature of the transaction between the consumer and seller. 
Accordingly, the Bureau is adopting Sec.  1026.38(j)(2)(iv), and 
comment 38(j)(2)(iv)-1 substantially as proposed with modifications to 
clarify that the total of all loans being assumed by the consumer is 
disclosed under Sec.  1026.38(j)(2)(iv).
    Proposed Sec.  1026.38(j)(2)(v) would have required the creditor or 
closing agent to provide a reference to seller credits and the total 
amount of money that the seller will provide in a lump sum at closing 
for closing costs, designated borrower-paid at or before closing, as 
disclosed under proposed Sec.  1026.38(f)(1) and (g)(1), as applicable. 
Proposed comment 38(j)(2)(v)-1 would have clarified that any amount 
disclosed under Sec.  1026.38(j)(2)(v) is for generalized seller 
credits, and that seller credits attributable to a specific closing 
cost would be designated ``seller-paid'' under Sec.  1026.38(f)(1) or 
(g)(1), as applicable. Proposed comment 38(j)(2)(v)-2 would have 
clarified that any other obligations of the seller to be paid directly 
to the consumer, such as for issues identified at a walk-through of the 
property prior to closing, are disclosed under proposed Sec.  
1026.38(j)(2)(v).
    Proposed Sec.  1026.38(j)(2)(vi) would have required the creditor 
or closing agent to provide a reference to other credits and the amount 
of items paid by or on behalf of the consumer and not otherwise 
disclosed under proposed Sec.  1026.38(j)(2), (f)(1), (g)(1), or 
(h)(3). Proposed comment 38(j)(2)(vi)-1 would have clarified that any 
amounts disclosed under proposed Sec.  1026.38(j)(2)(vi) are for other 
credits from parties other than the seller or creditor, but credits 
attributable to a specific closing cost would be reflected with a paid 
by other party designation under proposed Sec.  1026.38(f)(1) or 
(g)(1). For example, a credit from a real estate agent would have been 
listed as a credit along with a description of the rebate and include 
the name of the party giving the credit. This comment would have 
incorporated guidance provided by HUD RESPA FAQs p. 47-48, 4 
(``HUD-1--200 series'').
    Proposed comment 38(j)(2)(vi)-2 would have clarified that any 
amounts disclosed under Sec.  1026.38(j)(2)(vi) can also be used for 
disclosing subordinate financing proceeds. For subordinate financing, 
the principal amount of the loan would have been required to be 
disclosed with a brief explanation. If the net proceeds of the loan are 
less than the principal amount, the net proceeds could have been listed 
on the same lines as the principal amount. This comment would have 
incorporated guidance provided by the instructions for RESPA settlement 
statement lines 204 to 209 in appendix A to Regulation X and the HUD 
RESPA Roundup dated December 2010.
    Proposed comment 38(j)(2)(vi)-3 would have clarified that any 
amounts disclosed under proposed Sec.  1026.38(j)(2)(vi) can also be 
used for the disclosure of satisfaction of existing subordinate liens 
by the consumer. Any amounts paid to satisfy existing subordinate liens 
by the consumer with funds outside of closing funds would have been 
required to be disclosed with a statement that such amounts were paid 
outside of closing under Sec.  1026.38(j)(4). This comment would have 
incorporated guidance provided by the instructions for completing the 
RESPA settlement disclosure lines 204 to 209 in appendix A to 
Regulation X and the HUD RESPA Roundup dated September 2010.
    Proposed comment 38(j)(2)(vi)-4 would have clarified that any 
amounts disclosed under proposed Sec.  1026.38(j)(2)(vi) can also be 
used for disclosing a transferred escrow balance in a refinance 
transaction as a credit

[[Page 80023]]

along with a description of the transferred escrow balance. This 
comment would have incorporated guidance provided by the HUD RESPA FAQs 
p. 47, 3 (``HUD-1--200 series''). Proposed comment 
38(j)(2)(vi)-5 would have clarified that any amounts disclosed under 
Sec.  1026.38(j)(2)(vi) can also be used for gift funds provided on the 
consumer's behalf by parties not otherwise associated with the 
transaction.
    Several commenters stated that additional guidance was needed 
concerning whether a rebate or refund from any mortgage insurance 
premium after the payoff of an existing loan would be disclosed under 
proposed Sec.  1026.38(j)(2)(vi). The Bureau does not believe 
additional guidance is necessary in specific relation to a rebate or 
refund from any mortgage insurance premium after the payoff of an 
existing loan because the separate disclosure of such a rebate or 
refund will depend on how the government agency or the mortgage insurer 
provides the rebate or refund. In some instances, the amount of the 
premium collected during the consummation of the transaction will be 
reduced by the amount of the rebate or refund, making any separate 
disclosure under proposed Sec.  1026.38(j)(2)(vi) redundant and 
confusing to the consumer. In other instances, the rebate or refund 
would be sent to the consumer at an indefinite time after consummation, 
i.e., after the funds sufficient to satisfy the debt were received and 
have cleared. This would mandate an additional, subsequent provision of 
the Closing Disclosure to inform the consumer that she received a check 
that likely was already deposited. Such a result would seem to provide 
little information or understanding of the transaction to the consumer. 
The only instance where the rebate or refund would be disclosed to the 
consumer is where the government agency or mortgage insurer is sending 
the rebate or refund to the closing agent to be used to reduce the 
amount due from the consumer at consummation. In that event, the rebate 
or refund can be disclosed as any other credit from a party other than 
the creditor or seller under proposed Sec.  1026.38(j)(2)(vi). 
Accordingly, the Bureau is adopting Sec.  1026.38(j)(2)(vi) and its 
accompanying commentary as proposed.
    Proposed Sec.  1026.38(j)(2)(vii) would have required the creditor 
or closing agent to provide a reference to adjustments for items unpaid 
by the seller. Proposed Sec.  1026.38(j)(2)(viii) would have required 
the creditor or closing agent to provide a reference to city/town 
taxes, the time period that the seller is responsible for the payment 
of any such unpaid taxes, and the prorated amount of any such taxes due 
from the seller at closing. Proposed Sec.  1026.38(j)(2)(ix) would have 
required the creditor or closing agent to provide a reference to county 
taxes, the time period that the seller is responsible for the payment 
of any such unpaid taxes, and the prorated amount of any such unpaid 
taxes due from the seller at closing. Proposed Sec.  1026.38(j)(2)(x) 
would have required the creditor or closing agent to provide a 
reference to assessments, the time period that the seller is 
responsible for paying any such unpaid taxes, and the prorated amount 
of any such unpaid assessments due from the seller at closing.
    Proposed Sec.  1026.38(j)(2)(xi) would have required the creditor 
or closing agent to provide a description and the amount of any 
additional items which have not yet been paid and which the consumer is 
expected to pay, but which are attributable to a period of time prior 
to closing. Proposed comment 38(j)(2)(xi)-1 would have clarified that 
any amounts disclosed under proposed Sec.  1026.38(j)(2)(xi) are for 
other items not paid by the seller, such as utilities used by the 
seller, rent collected in advance by the seller from a tenant for a 
period extending beyond the closing date, and interest on loan 
assumptions.
    The Bureau did not receive comments concerning proposed Sec.  
1026.38(j)(2), except to the extent already discussed in relation to 
Sec.  1026.38(j)(2)(iv) and (vi), above. Accordingly, the Bureau is 
adopting Sec.  1026.38(j)(2) and its accompanying commentary, 
substantially as proposed with the modifications to comment 
38(j)(2)(iv)-1 discussed above and a minor modification to the label 
required under Sec.  1026.38(j)(2)(iii) to conform with form H-25.
38(j)(3) Calculation of Borrower's Transaction
    Proposed Sec.  1026.38(j)(3) would have required the creditor or 
closing agent to disclose the label ``Calculation.'' Proposed Sec.  
1026.38(j)(3)(i) would have required the creditor or closing agent to 
provide a reference to the total amount due from the consumer at 
closing under Sec.  1026.38(j)(1)(i). Proposed Sec.  1026.38(j)(3)(ii) 
would have required the creditor or closing agent to provide a 
reference to the total amount already paid by or on behalf of the 
consumer at closing as a negative number under Sec.  1026.38(j)(2)(i).
    Proposed Sec.  1026.38(j)(3)(iii) would have required the creditor 
or closing agent to provide a reference to cash to close, a statement 
of whether the disclosed amount is due from or to the consumer, and the 
amount due from or to the consumer at closing. Proposed comment 
38(j)(3)(iii)-1 would have clarified that the creditor or closing agent 
must state either the cash required from the consumer at closing, or 
cash payable to the consumer at closing. Proposed comment 
38(j)(3)(iii)-2 would have clarified that the amount disclosed under 
proposed Sec.  1026.38(j)(3)(iii) is the sum of the amounts disclosed 
under proposed Sec.  1026.38(j)(3)(i) and (ii). If the result is 
positive, the amount would be due from the consumer. If the result is 
negative, the amount would be due to the consumer.
    The Bureau did not receive comments concerning the required 
disclosures under Sec.  1026.38(j)(3). Accordingly, the Bureau is 
adopting Sec.  1026.38(j)(3) and its accompanying commentary as 
proposed.
38(j)(4) Items Paid Outside of Closing Funds
    Proposed Sec.  1026.38(j)(4)(i) would have required the creditor or 
closing agent to state amounts paid outside of closing with the phrase 
``paid outside closing'' or ``P.O.C.'' Proposed comment 38(j)(4)(i)-1 
would have clarified that any charges not paid from closing funds but 
otherwise disclosed under Sec.  1026.38(j) must be marked with the 
designation ``paid outside of closing'' or ``P.O.C.'' with a 
designation of the party making the payment. This comment would have 
incorporated guidance provided by the general instructions for the 
RESPA settlement statement in appendix A to Regulation X. Proposed 
comment 38(j)(4)(i)-2 would have clarified that charges paid outside of 
closing funds are not included in computing totals under proposed Sec.  
1026.38(j). Proposed Sec.  1026.38 (j)(4)(ii) would have defined 
closing funds to mean funds collected and disbursed at closing for 
purposes of proposed Sec.  1026.38(j). The Bureau did not receive 
comments concerning the requirements of proposed Sec.  1026.38(j)(4). 
Accordingly, the Bureau is adopting Sec.  1026.38(j)(1) and its 
accompanying commentary as proposed.
38(k) Summary of Seller's Transaction
    Proposed Sec.  1026.38(k) would have required that the creditor or 
closing agent provide a summary of the seller's transaction in a 
separate table under the heading ``Summaries of Transactions'' required 
under Sec.  1026.38(j). Proposed Sec.  1026.38(k) also would have 
listed the information that must be provided under the subheading 
``Seller's Transaction.'' Proposed comment 38(k)-1 would have clarified 
that proposed

[[Page 80024]]

Sec.  1026.38(k) does not apply in a transaction where there is no 
seller, such as a refinance transaction. Proposed comment 38(k)-2 would 
have clarified that proposed Sec.  1026.38(k) refers to comment 38(j)-2 
related to the use of addenda to the Closing Disclosure. Proposed 
comment 38(k)-3 would have referred to comment 38(j)-3 for guidance 
that the amounts disclosed under certain provisions of proposed Sec.  
1026.38(k) are the same as the amounts disclosed under certain 
provisions of proposed Sec.  1026.38(j).
    The Bureau did not receive comments concerning the required 
disclosures under Sec.  1026.38(k), other than described below. 
Accordingly, the Bureau is adopting Sec.  1026.38(k) and its 
accompanying commentary, with modifications for clarity and as 
discussed below, as proposed with a minor modification for clarity.
38(k)(1) Itemization of Amounts Due to Seller
    Proposed Sec.  1026.38(k)(1)(i) would have required the creditor or 
closing agent to disclose the label ``Due to Seller at Closing'' and 
the total amount due to the seller at closing, calculated as the sum of 
items required to be disclosed under proposed Sec.  1026.38(k)(1)(ii) 
through (ix), excluding items paid from funds other than closing funds 
as described in proposed Sec.  1026.38(k)(4)(i). Below this label, 
Sec.  1026.38(k)(1)(ii) would have required the creditor or closing 
agent to provide a reference to the sale price of the property and the 
amount of the real estate contract sales price of the property being 
sold, excluding the price of any items of tangible personal property if 
the consumer and seller have agreed to a separate price for such items. 
In addition, below the same subheading, a reference for adjustments for 
items paid by seller in advance also would have been required to be 
provided by the creditor or closing agent.
    Proposed Sec.  1026.38(k)(1)(iii) would have required the creditor 
or closing agent to provide a reference to the sale price of any 
personal property included in the sale and the amount of the sale price 
of any personal property excluded from the contract sales price under 
proposed Sec.  1026.38(k)(ii). Proposed comment 38(k)(1)(iii)-1 would 
have clarified that guidance regarding the classification of personal 
property is provided at proposed Sec.  1026.38(j)(1)(ii) and proposed 
comment 38(j)(1)(ii)-1.
    Proposed Sec.  1026.38(k)(1)(iv) would have required the creditor 
or closing agent to provide a description and the amount of other items 
to be paid to the seller by the consumer under the contract of sale or 
other agreement, such as charges that were not listed on the Loan 
Estimate or items paid by the seller prior to closing but reimbursed by 
the consumer at consummation. Proposed Sec.  1026.38(k)(1)(v) would 
have required the creditor or closing agent to provide a reference to 
adjustments for items paid by the seller in advance. Proposed Sec.  
1026.38(k)(1)(vi) would have required the creditor or closing agent to 
provide a reference to city/town taxes, the time period that the 
consumer is responsible for reimbursing the seller for any such prepaid 
taxes, and the prorated amount of any such prepaid taxes due from the 
consumer at closing. Proposed Sec.  1026.38(k)(1)(vii) would have 
required the creditor or closing agent to provide a reference to county 
taxes, the time period that the consumer is responsible for reimbursing 
the seller for any such prepaid taxes, and the prorated amount of any 
such prepaid taxes due from the consumer at closing.
    Proposed Sec.  1026.38(k)(1)(viii) would have required the creditor 
or closing agent to provide a reference to assessments, the time period 
that the consumer is responsible for reimbursing the seller for any 
such prepaid assessments, and the prorated amount of any such 
assessments due from the consumer at closing. Proposed Sec.  
1026.38(k)(1)(ix) would have required the creditor or closing agent to 
provide a description and amount of additional items paid by the seller 
prior to closing that are reimbursed by the consumer at closing.
    The Bureau did not receive comments concerning the required 
disclosures under Sec.  1026.38(k)(1). Accordingly, the Bureau is 
adopting Sec.  1026.38(k)(1) and its accompanying commentary as 
proposed.
38(k)(2) Itemization of Amounts Due From Seller
    Proposed Sec.  1026.38(k)(2)(i) would have required the creditor or 
closing agent to disclose the label ``Due from Seller at Closing'' and 
the total amount due from the seller at closing, calculated as the sum 
of items required to be disclosed under proposed Sec.  
1026.38(k)(2)(ii) through (xiii), excluding items paid from funds other 
than closing funds as described in proposed Sec.  1026.38(k)(4)(i). 
Below this label, proposed Sec.  1026.38(k)(2)(ii) would have required 
the creditor or closing agent to provide a reference to the amount of 
any excess deposit, the consumer's loan amount, the existing loans 
assumed or taken subject to at closing, the payoff amount of a first 
mortgage loan, the payoff of a second mortgage loan, seller credits, 
and adjustments for items unpaid by the seller. Proposed comment 
38(k)(2)(ii)-1 would have clarified that any excess deposit disbursed 
to the seller by a party other than the closing agent must be disclosed 
under Sec.  1026.38(k)(2)(ii) if the party will provide the excess 
deposit directly to the seller. Proposed comment 38(k)(2)(ii)-2 would 
have clarified that any amounts of the deposit that were disbursed to 
the seller prior to closing must be disclosed under proposed Sec.  
1026.38(k)(2)(ii).
    Two GSEs during an ex parte meeting stated that the calculation of 
the excess deposit amount was confusing, especially since the amount of 
the deposit would offset any real estate commission that may be 
disclosed under Sec.  1026.38(g)(4), above. Thus, the Closing 
Disclosure would not record the entire amount of the real estate 
commission paid by the seller in the event the real estate brokerage 
retained the deposit as part of its commission. The Bureau believes 
that this may be confusing to consumers and sellers and is adopting 
comment 38(g)(4)-4 to clarify that any real estate commissions 
disclosed under Sec.  1026.38(g)(4) should be the full amount of the 
commission, regardless of the party who holds the deposit. In addition, 
a title insurance company commenter stated that the description of the 
excess deposit in proposed comment 38(k)(2)(ii)-2 would have 
incorrectly calculated the amount shown as excess deposit because the 
amount already disbursed to the seller as proposed would not be 
included in the amount, directly contrary to the regulatory text that 
requires the reduction of the amount due to the seller by any amount 
paid to the seller prior to consummation. The Bureau is adopting Sec.  
1026.38(k)(2)(ii) to require disclosure of the amount disbursed to the 
seller prior to the real estate closing, and is adopting proposed 
comment 38(k)(2)(ii)-2 as comment 38(k)(2)(ii)-1, with a modification 
to indicate that the amount disclosed under Sec.  1026.38(k)(2)(ii) 
should be any amount of the deposit that has already been disbursed to 
the seller prior to closing. The Bureau is not adopting proposed 
comment 38(k)(2)(ii)-1 for the reasons stated above.
    Proposed Sec.  1026.38(k)(2)(iii) would have required the creditor 
or closing agent to provide a reference to and the amount of the 
subtotal closing costs paid at closing by the seller as calculated 
under proposed Sec.  1026.38(h)(1). Proposed Sec.  1026.38(k)(2)(iv) 
would have required the creditor or closing agent to provide a 
reference to existing loans assumed or taken subject to by the consumer 
and

[[Page 80025]]

the amount of those loans. Proposed comment 38(k)(2)(iv)-1 would have 
clarified that the amount of the outstanding balance of any lien that 
the consumer is assuming or taking title subject to, and which is to be 
deducted from the sales price, must be disclosed under proposed Sec.  
1026.38(k)(2)(iv). A title insurance company commenter stated that the 
term lien should be plural instead of singular in proposed comment 
38(k)(2)(iv)-1. The Bureau is adopting Sec.  1026.38(k)(2)(iv) and 
comment 38(k)(2)(iv)-1 substantially as proposed, but modified to state 
that more than one lien can be included in the amount being assumed.
    Proposed Sec.  1026.38(k)(2)(v) would have required the creditor or 
closing agent to provide a reference to the payoff of the first 
mortgage loan and the amount of any first loan that will be paid off as 
part of closing. Proposed Sec.  1026.38(k)(2)(vi) would have required 
the creditor or closing agent to provide a reference to the payoff of 
the second mortgage loan and the amount of any second loan that will be 
paid off as part of closing. A title insurance company commenter stated 
that additional subordinate financing other than just the second lien 
should also be disclosed under proposed Sec.  1026.38(k)(2)(vi). 
However, if there are third or fourth loans that are secured with liens 
on the property, they would be disclosed pursuant to Sec.  
1026.38(k)(2)(viii), below. Accordingly, the Bureau is adopting Sec.  
1026.38(k)(2)(vi) as proposed.
    Proposed Sec.  1026.38(k)(2)(vii) would have required the creditor 
or closing agent to provide a reference to seller credits and the total 
amount of money that the seller will provide as a lump sum at closing 
to pay for loan costs and other costs, designated borrower-paid at or 
before closing, as disclosed under proposed Sec.  1026.38(f)(1) and 
(g)(1), as applicable. Any costs disclosed as seller-paid at or before 
closing under proposed Sec.  1026.38(f)(1) and (g)(1) would not have 
been disclosed under proposed Sec.  1026.38(k)(vii). Proposed comment 
(k)(2)(vii)-1 would have clarified that any other obligations of the 
seller to be paid directly to the consumer, such as credits for issues 
identified at a walk-through of the property prior to closing, would 
have been disclosed under proposed Sec.  1026.38(k)(2)(vii).
    Proposed Sec.  1026.38(k)(2)(viii) would have required the creditor 
or closing agent to provide a description and the amount of any and all 
other obligations required to be paid by the seller at closing, 
including any lien-related payoffs, fees, or obligations. Proposed 
comment 38(k)(2)(viii)-1 would have clarified that amounts that must be 
paid in order to satisfy other seller obligations to clear title to the 
property must be disclosed under proposed Sec.  1026.38(k)(2)(viii). 
Proposed comment 38(k)(2)(viii)-2 would have clarified that the 
satisfaction of existing liens by the consumer that are not deducted 
from the sales price are disclosed under proposed Sec.  
1026.38(k)(2)(viii) and must be disclosed as paid outside of closing 
under Sec.  1026.38(k)(4)(i). This guidance would have been consistent 
with proposed comment 38(j)(2)(vi)-2, and would have incorporated 
guidance provided by the HUD RESPA Roundup dated December 2010. 
Proposed comment 38(k)(2)(viii)-3 would have clarified that escrowed 
funds held by the closing agent for payment of invoices related to 
repairs, water, fuel, or other utility bills received after closing 
that cannot be prorated are disclosed under proposed Sec.  
1026.38(k)(2)(viii), and that subsequent disclosure of the amounts paid 
after consummation is optional. This guidance would have been 
consistent with the instructions for RESPA settlement statement lines 
506 to 509 in appendix A to Regulation X.
    A title insurance company commenter stated that the subsequent 
disclosure of payments from escrowed funds held by the closing agent 
for payment of invoices related to repairs, water, fuel, or other 
utility bills received after consummation should be mandatory. However, 
closing agents can be regulated as part of the business of providing 
title insurance in some States. These States can have different 
requirements related to the subsequent disclosure of these amounts and 
the handling of the amounts held by the closing agent. The Bureau 
believes that providing the disclosure of the amounts after 
consummation should be optional to provide flexibility to the closing 
agent to comply with applicable State law. However, the Bureau notes 
that Sec.  1026.19(f)(2)(iii) requires a creditor to provide a 
corrected Closing Disclosure if a post-consummation event occurs during 
the 30-day period following consummation that results in a change to 
the actual amount paid by the consumer. Similarly, Sec.  
1026.19(f)(4)(ii) requires post-consummation disclosures for the seller 
for events that occur during the 30-day period following consummation. 
Otherwise, the disclosures related to the transaction could be a 
process that could continue for years and possibly implicate State 
escheatment procedures, in some instances. Accordingly, the Bureau is 
adopting Sec.  1026.38(k)(2)(viii) and its accompanying commentary as 
substantially as proposed, with a modification to comment 
38(k)(2)(viii)-3 to include a reference to the requirement under Sec.  
1026.19(f)(2)(iii).
    Proposed Sec.  1026.38(k)(2)(ix) would have required the creditor 
or closing agent to provide a reference to adjustments for items unpaid 
by the seller. Proposed Sec.  1026.38(k)(2)(x) would have required the 
creditor or closing agent to provide a reference to city/town taxes, 
the time period that the seller is responsible for payment of any such 
unpaid taxes, and the prorated amount of any such unpaid taxes due from 
the seller at closing. Proposed Sec.  1026.38(k)(2)(xi) would have 
required the creditor or closing agent to provide a reference to county 
taxes, the time period that the seller is responsible for the payment 
of any such unpaid taxes, and the prorated amount of any such unpaid 
taxes due from the seller at closing. Proposed Sec.  1026.38(k)(2)(xii) 
would have required the creditor or closing agent to provide a 
reference to assessments, the time period that the seller is 
responsible for payment of any such unpaid assessments, and the 
prorated amount of any such unpaid assessments due from the seller at 
closing. Proposed Sec.  1026.38(k)(2)(xiii) would have required the 
creditor or closing agent to provide a description and the amount of 
any additional items that have not yet been paid, and which the seller 
is expected to pay at closing, but which are attributable in part to a 
period of time prior to the closing.
    The Bureau did not receive any comments concerning the required 
disclosures under Sec.  1026.38(k)(2), except for the comments provided 
related to Sec.  1026.38(k)(2)(iv), (vi), and (vii) as discussed above. 
Accordingly, the Bureau is adopting Sec.  1026.38(k)(2) and its 
accompanying commentary substantially as proposed, with the 
modifications to comments 38(k)(2)(iv)-1 and 38(k)(2)(viii)-3 discussed 
above and with minor modifications to Sec.  1026.38(k)(2)(ii) for 
clarity and to Sec.  1026.38(k)(2)(iii) to conform to form H-25.
38(k)(3) Calculation of Seller's Transaction
    Proposed Sec.  1026.38(k)(3) would have required the creditor or 
closing agent to disclose the subheading ``Calculation.'' Proposed 
Sec.  1026.38(k)(3)(i) would have required the creditor or closing 
agent to provide a reference to the total amount due to the seller at 
closing and the amount described under proposed Sec.  1026.38(k)(1)(i). 
Proposed Sec.  1026.38(ii) would have required the creditor or closing 
agent to provide a reference to

[[Page 80026]]

the total amount due from the seller at closing and the amount 
described as a negative number under proposed Sec.  1026.38(k)(2)(i).
    Proposed Sec.  1026.38(k)(3)(iii) would have required the creditor 
or closing agent to include the word ''Cash,'' a statement of whether 
the disclosed amount is due from or to the seller, and the amount due 
from or to the seller at closing. Proposed comment 38(k)(3)(iii)-1 
would have clarified that the creditor or closing agent must state 
either the cash required from the seller at closing, or the cash 
payable to the seller at closing. Proposed comment 38(k)(3)(iii)-2 
would have clarified that the amount disclosed under proposed Sec.  
1026.38(k)(3)(iii) is the sum of the amounts disclosed under proposed 
Sec.  1026.38(k)(3)(i) and the amount disclosed under proposed Sec.  
1026.38(k)(ii). If the result is positive, the amount would be due to 
the seller. If the result is negative, the amount would be due from the 
seller.
    The Bureau did not receive comments concerning the required 
disclosures under Sec.  1026.38(k)(3). Accordingly, the Bureau is 
adopting Sec.  1026.38(k)(3) and its accompanying commentary as 
proposed.
38(k)(4) Items Paid Outside of Closing Funds
    Proposed Sec.  1026.38(k)(4)(i) would have required the creditor or 
closing agent to state amounts paid outside of closing with the phrase 
``Paid Outside of Closing'' or ``P.O.C.'' and would have provided that 
closing funds are funds collected and disbursed at consummation by the 
creditor or closing agent. Proposed Sec.  1026.38(k)(4)(ii) would have 
defined closing funds to mean funds collected and disbursed at 
consummation for purposes of proposed Sec.  1026.38(k).
    The Bureau did not receive comments concerning the requirements of 
Sec.  1026.38(k)(4). Accordingly, the Bureau is adopting Sec.  
1026.38(k)(4) and its accompanying commentary as proposed.
38(l) Loan Disclosures
    As discussed below, TILA requires that creditors provide consumers 
with a variety of disclosures prior to consummation regarding 
requirements in or arising from the legal obligation: assumption, 
demand feature, late payment, negative amortization, partial payment 
policy, security interest, and escrow account information. For purposes 
of the integrated disclosure form that would have been required by 
proposed Sec.  1026.19(f), these disclosures would have been required 
to be grouped together under the master heading ``Additional 
Information About This Loan'' and under the heading ``Loan 
Disclosures.''
    Several industry commenters criticized the design of the Loan 
Disclosures section of the Closing Disclosure, as illustrated by 
proposed from H-25. A non-depository lender commented that the 
checkboxes for this section should be made larger to make them more 
visible for consumers. An association of State regulators commented 
that the many technical disclosures included in this section could be 
confusing to consumers and recommended that the disclosures be broken 
up with bullet points or reference web-based tools to help consumers 
understand them. One document preparation company commenter requested 
guidance on whether the text shown on form H-25 with respect to the 
disclosures in Sec.  1026.38(l) is required or whether it can change.
    The Bureau declines to revise the design of the Closing Disclosure 
as suggested by the commenter with respect to the disclosures required 
by Sec.  1026.38(l). The Bureau is adopting Sec.  1026.38(l) as 
proposed. With respect to the comment requesting clarification of 
whether the text is variable or required, the Bureau notes that under 
Sec.  1026.38(l), the text illustrated by form H-25 of appendix H to 
Regulation Z is required for federally related mortgage loans, but is a 
model form for transactions subject to TILA only, and not RESPA. The 
Bureau recognizes that there is a large amount of information on page 4 
of the Closing Disclosure as required by Sec.  1026.38(l). With respect 
to the clarity of the disclosures under Sec.  1026.38(l), these 
disclosures are mandated by statute, and three of these disclosures 
have been added to TILA by the Dodd-Frank Act. The Bureau has made 
every effort to draft them as concisely and accurately as possible so 
that consumers will be able to understand them, and included them in 
the prototype disclosures at the Bureau's consumer testing. See 
Kleimann Testing Report at 17.
38(l)(1) Assumption
    Proposed Sec.  1026.38(l)(1) would have implemented TILA section 
128(a)(13) for transactions subject to Sec.  1026.19(f) by requiring 
the creditor to disclose the statement required by Sec.  1026.37(m)(2), 
which describes whether a subsequent purchaser may be permitted to 
assume the remaining loan obligation. For a detailed description of the 
Bureau's implementation of TILA section 128(a)(13) and the legal 
authority for this provision, see the section-by-section analysis of 
Sec.  1026.37(m)(2). For the reasons discussed in the section-by-
section analysis of Sec.  1026.37(m)(2), the Bureau is adopting Sec.  
1026.38(l)(1) as proposed, based on the authority described in the 
proposal. The Bureau is revising the assumption disclosure illustrated 
on form H-25 of appendix H to Regulation Z, for consistency with the 
disclosure required for the Loan Estimate, as illustrated by form H-24.
38(l)(2) Demand Feature
    TILA section 128(a)(12) requires the creditor to disclose a 
statement that the consumer should refer to the appropriate contract 
document for information about certain loan features, including the 
right to accelerate the maturity of the debt. 15 U.S.C. 1638(a)(12). 
Current Sec.  1026.18(p) implements TILA section 128(a)(12) by 
requiring, among other things, a statement that the consumer should 
refer to the appropriate contract document for information about 
nonpayment, default, and the right to accelerate the maturity of the 
obligation, and prepayment rebates and penalties. In addition, current 
Sec.  1026.18(i) requires the creditor to disclose whether the legal 
obligation includes a demand feature and, if the disclosures are based 
on the assumed maturity of one year as described in Sec.  
1026.17(c)(5), the creditor must state that fact.
    Pursuant to its authority under TILA section 105(a) and (f), Dodd-
Frank Act section 1032(a), and, for residential mortgage loans, Dodd-
Frank Act section 1405(b), the Bureau did not propose to incorporate 
into Sec.  1026.38(l)(2) the special disclosure requirement regarding 
assumed maturity of one year in current Sec.  1026.18(i) or the 
optional contract reference disclosures in current Sec.  1026.18(p). 
The proposal stated that, by exempting disclosure of information that 
will not be useful to consumers, the disclosure would effectuate the 
purposes of TILA by enhancing consumer understanding of mortgage 
transactions, consistent with TILA section 105(a). Similarly, the 
Bureau stated it considered the factors in TILA section 105(f) and that 
it believed that an exemption was appropriate under that provision. 
Specifically, the Bureau stated its belief in the proposal that the 
proposed exemption is appropriate for all affected borrowers, 
regardless of their other financial arrangements and financial 
sophistication and the importance of the loan to them, that the 
exemption is appropriate for all affected loans, regardless of the 
amount of the loan and whether the loan is secured by the principal 
residence of the consumer,

[[Page 80027]]

and that, on balance, the exemption will simplify the credit process 
without undermining the goal of consumer protection or denying 
important benefits to consumers. Furthermore, the Bureau stated that 
the exemption will ensure that the features of the mortgage transaction 
are fully, accurately, and effectively disclosed to consumers in a 
manner that permits consumers to understand the costs, benefits, and 
risks associated with the mortgage transaction, in light of the facts 
and circumstances, consistent with Dodd-Frank Act section 1032(a), and 
will improve consumer awareness and understanding of residential 
mortgage loans, which is in the interest of consumers and in the public 
interest, consistent with Dodd-Frank Act section 1405(b).
    Proposed Sec.  1026.38(l)(2) would have incorporated certain of the 
requirements of current Sec.  1026.18(i) and (p) for transactions 
subject to Sec.  1026.19(f) by requiring that the creditor disclose 
whether the legal obligation permits the creditor to demand early 
repayment of the loan and, if so, a statement that the consumer should 
review the loan document for more details. The information required by 
proposed Sec.  1026.38(l)(2) would have been required to be labeled 
``Demand Feature.'' Proposed comment 38(l)(2)-1 would have provided a 
cross-reference to comment 18(i)-2 for a description of demand features 
that would trigger the disclosure requirement in proposed Sec.  
1026.38(l)(2).
    An individual mortgage broker commented that the proposed 
disclosure required by Sec.  1026.38(l)(2) was too complex and should 
be simplified so that the consumer could understand how the demand 
feature affects them. The Bureau does not believe that the disclosure 
required by Sec.  1026.38(l)(2) is confusing for consumers. The 
Bureau's consumer testing revealed that most consumers understood this 
disclosure as proposed. See Kleimann Testing Report at 188. The Bureau 
is adopting Sec.  1026.38(l)(2) and comment 38(l)(2)-1 as proposed.
38(l)(3) Late Payment
    TILA section 128(a)(10) requires disclosure of any dollar charge or 
percentage amount that may be imposed by a creditor due to a late 
payment, other than a deferral or extension charge. 15 U.S.C. 
1638(a)(10). This requirement is currently implemented in Sec.  
1026.18(l). Proposed Sec.  1026.38(l)(3) would have implemented TILA 
section 128(a)(10) for loans subject to Sec.  1026.19(f) by requiring 
the creditor to disclose the statement required by Sec.  1026.37(m)(4), 
which details any charge that may be imposed for a late payment, stated 
as a dollar amount or percentage charge of the late payment amount, and 
the number of days that a payment may be late to trigger the late 
payment fee. Proposed comment 38(l)(3)-1 would have referred to the 
commentary for Sec.  1026.37(m)(4) for guidance on compliance with 
Sec.  1026.38(l)(3). For a detailed description of the Bureau's 
proposed implementation of TILA section 128(a)(10) and the legal 
authority for the proposal, see the section-by-section analysis of 
Sec.  1026.37(m)(4).
    The Bureau did not receive any comments on the substance of Sec.  
1026.38(l)(3) and is adopting it as proposed and is adopting comment 
38(l)(3)-1 substantially as proposed, with a minor modification for 
clarity. The Bureau received one comment regarding the design of the 
disclosure required by Sec.  1026.38(l)(3) on proposed form H-25, 
however. For the reasons discussed in the section-by-section analysis 
of Sec.  1026.37(m)(4), and as described in the section-by-section 
analysis of appendix H to Regulation Z, the Bureau is illustrating a 
revised design for the disclosure required by Sec.  1026.38(l)(3) in 
form H-25 of appendix H to Regulation Z that contains greater emphasis 
for the variable text to be inputted by the creditor.
38(l)(4) Negative Amortization
    New TILA section 129C(f), which was added by section 1414(a) of the 
Dodd-Frank Act, provides that no creditor may extend credit to a 
borrower in connection with a transaction secured by a dwelling or 
residential real property that includes a dwelling, other than a 
reverse mortgage, that provides for or permits a payment plan that may 
result in negative amortization unless the creditor provides the 
consumer with a notice that the transaction may or will result in 
negative amortization. 15 U.S.C. 1639c(f). Under TILA section 129C(f), 
before consummation of the transaction, the creditor must provide the 
consumer with a statement that: (1) The pending transaction will or 
may, as applicable, result in negative amortization; (2) describes 
negative amortization in the manner prescribed by the Bureau; (3) 
negative amortization increases the loan balance; and (4) negative 
amortization decreases the consumer's equity in the property. 15 U.S.C. 
1639c(f)(1).
    Although TILA section 129C(f) is new, both Regulations Z and X 
currently contain disclosure requirements for loan products that may 
negatively amortize. In Regulation Z, if the loan product contains 
features that may cause the loan amount to increase, Sec.  
1026.18(s)(4)(C) requires a statement that warns the consumer that the 
minimum payment covers only some interest, does not repay any 
principal, and will cause the loan amount to increase, for closed-end 
transactions secured by real property or a dwelling. Current appendix A 
to Regulation X requires a similar statement in the ``Loan Terms'' 
section of the RESPA settlement statement, which discloses whether the 
loan balance may increase even if loan payments are made on time.
    The Bureau proposed Sec.  1026.38(l)(4) to implement TILA section 
129C(f) for transactions subject to Sec.  1026.19(f), pursuant to its 
implementation authority under TILA section 105(a). Specifically, 
proposed Sec.  1026.38(l)(4) would have required a statement of whether 
the regular periodic payment may cause the principal balance to 
increase. If the regular periodic payment does not cover all of the 
interest due, proposed Sec.  1026.38(l)(4)(i) would have required a 
statement that the principal balance will increase, that the principal 
balance will likely exceed the original loan amount, and that increases 
in the principal balance will lower the consumer's equity in the 
property. In transactions in which the consumer has the option of 
making regular periodic payments that do not cover all of the interest 
accrued that month, proposed Sec.  1026.38(l)(4)(ii) would have 
required a statement that, if the consumer chooses a periodic payment 
option that does not cover all of the interest due, the principal 
balance may exceed the original loan amount and that increases in the 
principal balance decrease the consumer's equity in the property. The 
statements required by proposed Sec.  1026.38(l)(4)(i) and (ii) would 
have been located under the subheading ``Negative Amortization 
(Increase in Loan Amount).''
    A national trade association representing developers of timeshare 
and other similar fractional interest real estate products stated that 
the Bureau should clarify that the proposed disclosure would not apply 
to timeshare lenders. The trade association commenter asserted that it 
believes that TILA section 103(cc)(5), as added by section 1401 of the 
Dodd-Frank Act, exempted timeshare lenders from compliance with, among 
other things, TILA section 129C and any regulations promulgated 
thereunder. The general section-by-section analysis of Sec.  1026.19 
provides a more detailed discussion of the Bureau's decision to expand 
the scope of some of the disclosure

[[Page 80028]]

requirements set forth in TILA, as amended by the Dodd Frank Act. In 
addition, the Bureau believes that the disclosure of the fact that a 
transaction may negatively amortize would be just as useful to a 
consumer in a credit transaction secured by a consumer's interest in a 
timeshare plan as to a consumer in a credit transaction secured by an 
interest in real property or real property with a dwelling. The Bureau 
continues to believe that proposed Sec.  1026.38(l)(4) will effectuate 
the purposes of TILA. Accordingly, Sec.  1026.38(l)(4) is adopted as 
proposed, based on the authority stated in the proposal.
38(l)(5) Partial Payment Policy
    TILA section 129C(h), added by section 1414(d) of the Dodd-Frank 
Act, provides that, in the case of any residential mortgage loan, the 
creditor must disclose, prior to settlement or at the time such person 
becomes the creditor for an existing loan, the creditor's policy 
regarding the acceptance of partial payments, and if partial payments 
are accepted, how such payments will be applied to the mortgage and 
whether such payments will be placed in escrow. 15 U.S.C. 1631c(h).
    The Bureau proposed Sec.  1026.38(l)(5) to implement the pre-
consummation disclosure requirements of TILA section 129C(h), pursuant 
to its implementation authority under TILA section 105(a).\302\ 
Proposed Sec.  1026.38(l)(5) would have required the creditor to 
disclose, under the subheading ``Partial Payment Policy,'' a statement 
of whether it will accept monthly payments that are less than the full 
amount due and that, if the loan is sold, the new creditor may have a 
different policy. The proposed provision would have required that, if 
partial payments are accepted, the creditor must also provide a brief 
description of its partial payment policy, including the manner and 
order in which any partial payments are applied to the principal, 
interest, or an escrow account for partial payments and whether any 
penalties apply.
---------------------------------------------------------------------------

    \302\ The Bureau proposed to implement the disclosure 
requirements of TILA section 129C(h) that apply after consummation 
in proposed Sec.  1026.39.
---------------------------------------------------------------------------

Comments
    The Bureau received a number of comments on proposed Sec.  
1026.38(l)(5). Some commenters, including several national trade 
associations representing banks generally, consumer mortgage companies, 
and large mortgage finance companies, asserted that the Bureau should 
withdraw the proposal to require the creditor to provide the pre-
consummation partial payment disclosure on the Closing Disclosure. The 
commenters expressed concern that the proposal would have required 
creditors to provide information about an issue, the treatment of 
partial payments, which they asserted is a complex mortgage servicing 
issue. Some commenters were also concerned that the disclosure could be 
misleading if the creditor transfers servicing of a consumer's mortgage 
loan shortly after consummation and the servicer has a different 
partial payment policy. A GSE commenter suggested that the Bureau 
should require the disclosure only if the creditor will also be the 
loan's servicer. If the creditor will not be servicing the loan, then 
the GSE commenter asserted that the disclosure should come in a 
subsequent communication from the ultimate servicer. The GSE commenter 
further recommended that the Bureau require that a partial payment 
policy be disclosed only if the servicer maintains a policy of not 
accepting any partial payments.
    Commenters also asserted that it is difficult to describe partial 
payment policies because how such payments are processed is a complex 
process. Based on the comments, it appears that the treatment of 
partial payments could vary on a loan-by-loan basis even within the 
same institution. National trade association commenters representing 
banks generally, consumer mortgage companies, and large mortgage 
finance companies further asserted that if the Bureau issues final 
regulations requiring mortgage servicers to provide a partial payment 
disclosure in connection with the Bureau's separate mortgage servicing 
rulemaking, then it would be unnecessary for the Bureau to also require 
creditors to provide the pre-consummation partial payment disclosure. A 
title company commenter expressed concern that the disclosure could 
lead consumers to believe that making partial payments is an acceptable 
practice.
    Commenters asserted that if the Bureau decides to finalize the 
proposal, that the Bureau should define the term ``partial payment,'' 
what actions constitute acceptance of a partial payment, and provide 
model language that creditors may use to describe their partial payment 
policies. In an ex parte communication, two GSEs stated that the Bureau 
should require creditors to disclose whether a consumer will be in 
default when partial payments are accepted.
    Some commenters, including national trade associations representing 
banks, general consumer mortgage companies, and large mortgage finance 
companies, suggested that the Bureau adopt a provision in the final 
rule that would provide that creditors comply with the partial payment 
policy disclosure requirement by providing a statement directing the 
consumer to contact the consumer's servicer about how the consumer's 
partial payments would be applied. Industry commenters further 
suggested that the Bureau provide creditors with additional space to 
describe the creditor's partial payment policy on final form H-25 of 
appendix H to Regulation Z, because the space allotted for the 
disclosure, as shown in proposed form H-25, appeared inadequate. 
Lastly, a national trade association representing developers of 
timeshare and other similar fractional interest real estate products 
stated that the Bureau should clarify that the proposed disclosure 
would not apply to timeshare lenders. The trade association commenter 
asserted that it believes that TILA section 103(cc)(5), as added by 
section 1401 of the Dodd-Frank Act, exempted timeshare lenders from 
compliance with, among other things, TILA section 129C and any 
regulations promulgated thereunder.
Discussion
    The Bureau recognizes that a creditor may service a consumer's 
mortgage loan post-consummation or transfer the servicing of the loan 
shortly after consummation. The Bureau additionally recognizes that 
collecting and allocating payments are typical duties related to loan 
servicing. However, TILA section 129C(h) clearly establishes that the 
creditor has a distinct disclosure obligation related to partial 
payments. The Bureau does not believe it should exempt an express pre-
consummation disclosure requirement simply because another rule 
required a similar disclosure to consumers after consummation. Both the 
servicing disclosure requirement, implemented under the Bureau's 2013 
TILA Servicing Final Rule and the pre-consummation disclosure 
requirement may provide useful information to consumers at different 
stages of a transaction. Accordingly, the Bureau believes that 
consumers may benefit from receiving both disclosures. The Bureau does 
not believe that the proposed pre-consummation partial payment 
disclosure should be withdrawn because it describes a typical servicing 
duty or because the Bureau has issued disclosure requirements related 
to the acceptance of partial payments under the Bureau's 2013 TILA 
Servicing Final Rule.

[[Page 80029]]

    The Bureau also believes that consumer understanding may be 
improved and that consumers may avoid the uninformed use of credit if 
the Bureau required creditors to provide the disclosure to the consumer 
pre-consummation and integrated the disclosure with the other 
disclosures required under Sec.  1026.38. If the Bureau did not 
integrate this disclosure into the integrated disclosure, the 
disclosure would have to be provided separately by the creditor, which 
would increase the risk of consumer confusion and information overload, 
and increase compliance burden for industry.
    With respect to the concern that the disclosure could be misleading 
in situations where creditors transfer the servicing of a consumer's 
loan shortly after consummation, and the servicer has a different 
policy, the Bureau believes that this concern suggests that the 
creditor and the servicer to whom the creditor intends to transfer the 
servicing of the loan must effectively communicate regarding the 
partial payment policy that will apply to the transaction. With respect 
to the argument that the disclosure should not apply to timeshare 
lenders, the general section-by-section analysis of Sec.  1026.19 
provides a more detailed discussion of the Bureau's decision to expand 
the scope of some of the disclosure requirements set forth in TILA, as 
amended by the Dodd-Frank Act. In addition, the Bureau believes that 
the disclosure of the creditor's partial payment policy would be just 
as useful to a consumer in a credit transaction secured by a timeshare 
plan as to a consumer in a credit transaction secured by an interest in 
real property or real property with a dwelling.
    In response to concerns about the creditor's ability to adequately 
disclose their partial payment policy under the proposed provision, the 
Bureau has modified the disclosure requirement to facilitate 
compliance, which is one of the purposes of the integrated disclosure 
requirements stated by sections 1098 and 1100A of the Dodd-Frank Act. 
The modifications create more generalized partial payment disclosures. 
The Bureau modified the disclosures to respond to the concern that the 
creditor may not have a uniform policy on the acceptance and 
application of partial payments, which would be difficult to input on 
the Closing Disclosure for each transaction. The Bureau modified the 
disclosures, as illustrated by form H-25 of appendix H to Regulation Z, 
to provide for checkboxes to indicate the creditor's general policy, 
instead of a space in which the creditor would be required to write in 
its policy in free-form text. The Bureau also modified the disclosure 
to clarify that the term ``partial payment'' means periodic payment 
less than the full amount due, which the Bureau believes will aid 
consumer understanding, based on the results of its consumer testing. 
The Bureau conducted three rounds of consumer testing of the modified 
disclosure. At the Bureau's consumer testing, consumers were able to 
use the modified disclosure to understand the creditor's partial 
payment policy. See Kleimann Post-Proposal Testing Report at 30, 34, 
36-37, and 42.
    With respect to the concern that the disclosure would suggest to 
the consumer that making partial payments is acceptable, the Bureau 
believes that the checkbox structure, which shows that some creditors 
may not accept partial payments, will inform consumers that partial 
payment may not be an acceptable practice. With respect to the 
suggestion that the Bureau should disclose that consumers may be in 
default upon the making of a partial payment that is accepted, the 
Bureau believes that it would be duplicative and potentially confusing 
to the consumer to add an additional disclosure that the consumer may 
be in default. Under final Sec.  1026.38(p)(2), the creditor must 
disclose to the consumer on the Closing Disclosure that the consumer 
should refer to the loan document and security instrument for 
information about, among other things, what constitutes a default under 
the legal obligation.
    With respect to the suggestion that the Bureau modify the partial 
payment policy disclosure requirement to require only a statement 
directing the consumer to contact the consumer's servicer about the 
application of partial payments, the Bureau does not believe such a 
disclosure would aid consumer understanding of the consumer's 
transaction, because it would not inform the consumer of the creditor's 
policy for the transaction. The Bureau does not believe such statement 
would be effective at improving consumer understanding and helping 
consumers avoid the uninformed use of credit.
Final Rule
    The Bureau is adopting Sec.  1026.38(l)(5) with modifications to 
address concerns regarding compliance with the proposed disclosure 
requirements. As adopted, Sec.  1026.38(l)(5) requires the creditor to 
disclose, under the subheading ``Partial Payments,'' a statement of 
whether the creditor accepts periodic payments that are less than the 
full amount due. If the creditor may accept such payments, and apply 
the payments to the consumer's loan, or if the creditor may hold the 
payments in a separate account until the consumer pays the rest of the 
payment, or if the creditor does not accept any partial payments, then 
the disclosure would have had to state that fact. Additionally, similar 
to the proposal, Sec.  1026.38(l)(5) requires a statement that, if the 
loan is sold, the new creditor may have a different policy.
    As adopted, Sec.  1026.38(l)(5) modifies the statutory requirement 
that the creditor must describe how a consumer's partial payments, if 
accepted, will be applied to the consumer's account and whether any 
penalties will apply. The Bureau understands that there may be many 
variations regarding how partial payments are processed on a loan-by-
loan basis, even within one institution. Accordingly, a detailed 
disclosure describing each and every partial payment policy could be 
costly and burdensome to implement, and may confuse consumers. As 
described above, the Bureau believes that the more generalized 
disclosures the Bureau is adopting in Sec.  1026.38(l)(5) are effective 
at informing consumers and will facilitate compliance. The Bureau is 
adopting Sec.  1026.38(l)(5) pursuant to its authority under TILA 
section 105(a), Dodd-Frank Act section 1032(a), and for residential 
mortgage loans, Dodd-Frank Act section 1405(b).\303\ The Bureau 
believes the modification will ensure that the features of the 
transaction are fully, accurately and effectively disclosed to 
consumers in a manner that permits consumers to understand the costs, 
benefits, and risks associated with the mortgage transaction, 
consistent with Dodd-Frank Act section 1032(a), and will improve 
consumer awareness and understanding of residential mortgage loans, 
which is in the interest of consumers and the public, consistent with 
Dodd-Frank Act section 1405(b).
---------------------------------------------------------------------------

    \303\ The disclosure requirements of TILA section 129C(h) that 
apply after consummation are implemented in Sec.  1026.39.
---------------------------------------------------------------------------

38(l)(6) Security Interest
    TILA section 128(a)(9) requires the creditor to provide a statement 
that a security interest has been taken in the property that secures 
the transaction or in property not purchased as part of the transaction 
by item or type. 15 U.S.C. 1638(a)(9). This requirement is implemented 
in current Sec.  1026.18(m), which requires disclosure of the fact that 
the creditor has or will acquire a security interest in the property 
purchased as part of the transaction, or in other property identified 
by item or type.

[[Page 80030]]

    The Bureau proposed to require creditors to disclose the address of 
the property in which a security interest will be taken and a statement 
that the consumer may lose the property if he or she does not make 
payments or satisfy other requirements, pursuant to its authority under 
TILA section 105(a) and Dodd-Frank Act section 1032(a). The Bureau 
stated it proposed Sec.  1026.38(l)(6) to implement TILA section 
128(a)(9) for transactions subject to Sec.  1026.19(f), pursuant to its 
implementation authority under TILA section 105(a). The Bureau stated 
its belief in the proposal that the proposed disclosures promote the 
informed use of credit, which is a purpose of TILA, by clearly 
disclosing the property in which a security interest is being granted 
and informing consumers of the potential consequences of the creditor's 
security interest in the property. In addition, the Bureau stated its 
belief that the proposed disclosures will ensure that the features of 
the mortgage transaction are fully, accurately, and effectively 
disclosed to consumers in a manner that permits consumers to understand 
the costs, benefits, and risks associated with the mortgage 
transaction, in light of the facts and circumstances, consistent with 
Dodd-Frank Act section 1032(a).
    Proposed Sec.  1026.38(l)(6) would have required that the creditor 
disclose, if the creditor will take a security interest in the property 
that is the subject of a mortgage loan transaction, that the consumer 
is granting it a security interest in that property, the address of the 
property, and a statement that the consumer may lose the property if 
the consumer fails to make payments or satisfy other requirements of 
the legal obligation. The information required by proposed Sec.  
1026.38(l)(6) would have been located under the subheading ``Security 
Interest.''
    One industry commenter stated that the proposed security interest 
disclosure is redundant but did not state the reason or identify the 
other section of the Closing Disclosure that might render it redundant. 
A document preparation company and a national title company requested 
guidance on whether a legal description or other description of the 
real property could be disclosed where the property securing the 
transaction does not have a street address. A national trade 
association representing developers of timeshare and other similar 
fractional interest real estate products commented that requiring the 
property address was unnecessary for a timeshare and could be confusing 
to consumers, presumably because a timeshare consumer is not 
necessarily purchasing a security interest in a particular property. A 
national trade association representing mortgage lenders and a GSE 
commented that some transactions are secured by personal property and 
that the disclosure required by Sec.  1026.38(l)(6) should permit 
disclosure of personal property. Several industry commenters noted that 
the use of underscoring on form H-25 in the Security Interest 
disclosure makes the information disclosed difficult to read and that 
it would be difficult and expensive to program software to produce a 
form with underscoring.
    With respect to the comment requesting guidance of whether a legal 
description or other description would be permitted under Sec.  
1026.38(l)(6), the Bureau understands that additional guidance may 
facilitate compliance. Accordingly, the Bureau is adopting comment 
38(l)(6)-1 to clarify that where there is no street address, Sec.  
1026.38(l)(6) requires disclosure of other location information for the 
property, such as a lot number. This comment also clarifies that a zip 
code is required in all instances. With respect to the timeshare 
commenter, the Bureau notes that comment 38(l)(6)-1 has been revised to 
clarify that Sec.  1026.38(l)(6) permits disclosure as ``other location 
information'' of a lot, square, or other such number or other legal 
description of the property assigned by the local governing authority, 
or if no such number or description is available, the name of the 
timeshare property or properties with a designation indicating that the 
property is an interest in a timeshare plan. The Bureau also agrees 
that personal property securing a transaction should be disclosed on 
the Closing Disclosure and is adding comment 38(l)(6)-2 to clarify that 
where personal property also secures the credit transaction, a 
description of that property may be disclosed pursuant to Sec.  
1026.38(l)(6) on form H-25. The Bureau understands that the personal 
property to be disclosed may not fit in the space on form H-25 and thus 
is adopting comment 38(l)(6)-2 to clarify the creditor may disclose 
personal property on an addendum to the extent the personal property 
does not fit within the space provided on form H-25. The comment also 
clarifies that the creditor may use one addendum to disclose personal 
property securing the transaction under Sec.  1026.38(l)(6) and 
(a)(3)(vi) and includes a cross-reference to comment 38(a)(3)(vi)-1.
    The Bureau also understands that the underscoring illustrated by 
proposed form H-25 may increase programming costs, and may be difficult 
for consumers to read, and thus is revising form H-25 to delete the 
underscoring. Instead, the completed samples of form H-25 will 
illustrate the information provided by the creditor for the Security 
Interest disclosure with italics to emphasize that the italicized 
information has been completed by the creditor.
    For the aforementioned reasons, the Bureau is adopting Sec.  
1026.38(l)(6) substantially as proposed, with a minor modification to 
clarify that the property address disclosed must include the zip code 
and that the consumer is granting a security interest in the property, 
based on the authority stated in the proposal. The Bureau is also 
adding comments 38(l)(6)-1 and -2, as described above, to provide 
additional clarity that was requested by commenters.
38(l)(7) Escrow Account
The Bureau's Proposal
    As discussed in greater detail above in the section-by-section 
analysis of Sec.  1026.20(e) (Escrow account cancellation notice for 
certain mortgage transactions), sections 1461 and 1462 of the Dodd-
Frank Act amended TILA to create a new section 129D, which establishes 
certain requirements for escrow accounts for consumer credit 
transactions secured by a first lien on a consumer's principal dwelling 
(other than a consumer credit transaction under an open-end credit plan 
or a reverse mortgage), including, among other things, certain 
disclosure requirements when an escrow account is established and 
certain other disclosures when an escrow account is refused or 
cancelled by the consumer, respectively.
    Specifically, TILA section 129D(h) establishes that a creditor must 
provide the Pre-Consummation Escrow Establishment Disclosure containing 
the information set forth under TILA section 129D(h) when an impound, 
trust, or other type of account for the payment of property taxes, 
insurance premiums, or other purposes relating to real property 
securing a consumer credit transaction is established in connection 
with the transaction. Additionally, pursuant to TILA section 
129D(j)(1)(A), a creditor or servicer must provide the Pre-Consummation 
Escrow Waiver Disclosure containing the information set forth under 
TILA section 129D(j)(2) when an impound, trust, or other type of 
account for the payment of property taxes, insurance premiums, or other 
purposes relating to real property securing a consumer credit 
transaction is not established in connection with the transaction.

[[Page 80031]]

    Under TILA section 129D(b), however, application of these mandatory 
escrow requirements is limited to the following situations: (1) Where 
an escrow account is required by Federal or State law; (2) where the 
loan is made, guaranteed, or insured by a Federal or State agency; (3) 
where the transaction's APR exceeds the average prime offer rate by 
prescribed margins; and (4) where an escrow account is required by 
regulation.
    As discussed above in the section-by-section analysis of Sec.  
1026.20(e), the Board's 2011 Escrows Proposal proposed to implement the 
new TILA escrow requirements, and most aspects of that proposal have 
been implemented in a separate rulemaking. See 78 FR 4726 (Jan. 22, 
2013). But the Bureau proposed to implement the Pre-Consummation Escrow 
Establishment Disclosure and the Pre-Consummation Escrow Waiver 
Disclosure, along with certain other new disclosure requirements for 
mortgage transactions established by title XIV of the Dodd-Frank Act, 
as part of the TILA-RESPA Proposal. The Bureau believed that 
implementing these disclosures and the integrated disclosures that 
satisfy the applicable sections of TILA and RESPA together would 
benefit consumers and facilitate compliance for industry with TILA and 
RESPA. The Bureau also believed that consumers would benefit from a 
consolidated disclosure that conveys loan terms and costs to consumers 
in a coordinated way, and industry would benefit by integrating two 
sets of overlapping disclosures into a single form and by avoiding 
regulatory burden associated with revising systems and practices 
multiple times.
    Like the Board's 2011 Escrows Proposal, the Bureau proposed to 
apply the TILA section 129D escrow requirements to all transactions 
that would have been subject to proposed Sec.  1026.19(f). In doing so, 
the Bureau was relying on its authority under TILA section 105(a), 
Dodd-Frank Act section 1032(a), and, for residential mortgage loans, 
Dodd-Frank Act section 1405(b). The Bureau believed that requiring 
disclosures regarding the establishment of an escrow account, as well 
as the non-establishment of an escrow account, would provide consumers 
with information needed to evaluate the costs and fees associated with 
mortgage loans and to understand their ongoing monthly obligations 
regardless of whether the transaction would include an escrow account. 
The Bureau stated in the proposal that disclosure of this information 
would ensure that consumers have the facts needed to understand a key 
requirement of their mortgage loan and avoid the uninformed use of 
credit, consistent with the purposes of TILA. In addition, the Bureau 
stated that it believed that the proposed disclosures would ensure that 
the features of the mortgage transaction are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
mortgage transaction, in light of the facts and circumstances, 
consistent with Dodd-Frank Act section 1032(a), and would improve 
consumer awareness and understanding of residential mortgage loans, 
which is in the interest of consumers and the public, consistent with 
Dodd-Frank Act section 1405(b).
    Accordingly, the Bureau proposed to implement the disclosure 
requirements of TILA section 129D(h) and (j) relating to the Pre-
Consummation Escrow Establishment Disclosure and the Pre-Consummation 
Escrow Waiver Disclosure in proposed Sec.  1026.38(l)(7), pursuant to 
its authority under TILA section 105(a), Dodd-Frank Act section 
1032(a), and, for residential mortgage loans, Dodd-Frank Act section 
1405(b). Under the subheading ``Escrow Account,'' proposed Sec.  
1026.38(l)(7) would have required the creditor to disclose whether the 
consumer's loan will have an escrow account, and certain details about 
the payments made using escrow account funds and those the consumer 
must make directly.
    Under the ``Escrow Account'' subheading and under the reference 
``For now,'' proposed Sec.  1026.38(l)(7)(i) would have required a 
statement that an escrow account may also be called an ``impound'' or 
``trust'' account and a statement of whether the creditor has or will 
establish an escrow account at or before consummation in connection 
with the transaction for the costs that will be paid using escrow 
account funds described in proposed Sec.  1026.38(l)(7)(i)(A).
    Proposed Sec.  1026.38(l)(7)(i)(A) would have required the 
following disclosures under the ``For now'' reference: (1) A statement 
that the creditor may be liable for penalties and interest if it fails 
to make a payment for any costs for which the escrow account has been 
established, (2) a statement that the consumer would be required to pay 
such costs directly if no account is established, and (3) a table 
titled ``Escrow'' that contains, if an escrow account is or will be 
established, an itemization of the following: (i) The total amount the 
consumer will be required to pay into an escrow account over the first 
year after consummation for payment of the charges described in Sec.  
1026.37(c)(4)(ii), labeled ``Escrowed Property Costs Over Year 1,'' 
together with a descriptive name for each such charge, calculated as 
the amount disclosed under Sec.  1026.38(l)(7)(i)(A)(4) multiplied by 
the number of periodic payments scheduled to be made to the escrow 
account during the first year after consummation; (ii) the estimated 
amount the consumer is likely to pay during the first year after 
consummation for charges described in Sec.  1026.37(c)(4)(ii) that are 
known to the creditor and that will not be paid using escrow account 
funds, labeled ``Non-Escrowed Property Costs Over Year 1,'' together 
with a descriptive name for each such charge and a statement that the 
consumer may have to pay other costs that are not listed; (iii) the 
total amount disclosed pursuant to Sec.  1026.38(g)(3), a statement 
that the payment is a cushion for the escrow account, labeled ``Initial 
Payment,'' and a reference to the information disclosed pursuant to 
Sec.  1026.38(g)(3); and (iv) the amount the consumer will be required 
to pay into the escrow account with each periodic payment during the 
first year after consummation for payment of the charges described in 
Sec.  1026.37(c)(4)(ii), labeled ``Monthly Payment.''
    Proposed Sec.  1026.38(l)(7)(i)(A)(5) would have provided that a 
creditor complies with the requirements of Sec.  1026.38(l)(7)(i)(A)(1) 
and (l)(7)(i)(A)(4) if the creditor bases the numerical disclosures 
required by those paragraphs on amounts derived from the escrow account 
analysis required under Regulation X, 12 CFR 1024.17. Proposed comment 
38(l)(7)(i)(A)(2)-1 and 38(l)(7)(i)(A)(4)-1 would have provided 
guidance to creditors on the calculation of the itemized amounts that 
would have been required to be disclosed pursuant to proposed Sec.  
1026.38(l)(7)(i)(A).
    Proposed Sec.  1026.38(l)(7)(i)(B) would have required a statement 
of whether the loan will not have an escrow account and the reason the 
loan will not have an escrow account. For example, if the loan will not 
have an escrow account because either the consumer declined to have one 
or because the creditor does not require or offer them, the disclosure 
must state that fact. Proposed Sec.  1026.38(l)(7)(i)(B) also would 
have required a statement that the consumer must pay all property 
costs, such as taxes and homeowner's insurance, directly, as well as a 
statement that the consumer may contact the creditor to inquire about 
the availability of an escrow account. Finally, proposed Sec.  
1026.38(l)(7)(i)(B) would have required a table titled ``No

[[Page 80032]]

Escrow,'' that contains, if an escrow account will not be established, 
an itemization of the following: (1) the estimated total amount the 
consumer will pay directly for charges described in Sec.  
1026.37(c)(4)(ii) during the first year after consummation that are 
known to the creditor and a statement that, without an escrow account, 
the consumer must pay the identified costs, possibly in one or two 
large payments, labeled as ``Estimated Property Costs Over Year 1,'' 
and (2) the amount of any fee that the creditor may impose for not 
establishing an escrow account, labeled ``Escrow Waiver Fee.''
    The disclosures that would have been required in proposed Sec.  
1026.38(l)(7)(i)(B) would have been under the ``For now'' reference 
that would have been required in proposed Sec.  1026.38(l)(7)(i). 
Proposed comment 38(l)(7)(i)(B)(1)-1 would have provided guidance to 
creditors on calculation of the amounts that would have been required 
to be disclosed pursuant to proposed Sec.  1026.38(l)(7)(i)(B).
    Under the subheading ``Escrow Account'' that would have been 
required by proposed Sec.  1026.38(l)(7) and under the reference ``In 
the future,'' proposed Sec.  1026.38(l)(7)(ii) would have required 
information about future requirements for property costs. Specifically, 
proposed Sec.  1026.38(l)(7)(ii)(A) would have required a statement 
that the consumer's property costs may change and, as a result, the 
consumer's escrow amount may change. Proposed Sec.  
1026.38(l)(7)(ii)(B) would have required a statement that the consumer 
may be able to cancel an established escrow account, but if the account 
is cancelled the consumer would be required to pay those costs directly 
unless a new escrow account is established. Proposed Sec.  
1026.38(l)(7)(ii)(C) would have required a description of the 
consequences of failing to pay the property costs, including the 
imposition of fines and penalties or imposition of a tax lien by the 
consumer's State and local government, and possible actions by the 
creditor, such as adding the outstanding amounts to the loan balance, 
adding an escrow account for the loan, or purchasing property insurance 
on the consumer's behalf (with the statement that it is likely to be 
more expensive and provide fewer benefits than what the consumer could 
purchase directly).
Comments
    The Bureau received a number of comments with respect to the 
disclosures that would have been required by proposed Sec.  
1026.38(l)(7). An individual consumer commenter suggested that the 
Bureau should remove the ``Escrow Waiver Fee'' in proposed Sec.  
1026.38(l)(7)(i)(B)(2) because the consumer believed that such fees 
should be prohibited. Another individual consumer commenter, in 
response to proposed illustrations of form H-25, suggested that the 
Bureau should require creditors to disclose the amount of homeowner's 
association fees a consumer is required to pay with each periodic 
payment. The commenter stated that as proposed, illustrations of form 
H-25 show only the total amount of such fees during the first year 
after consummation.
    Some industry commenters asserted that they should be allowed to 
modify the disclosure requirements of proposed Sec.  1026.38(l)(7). A 
national trade association representing timeshare developers and 
similar fractional interest real estate products stated that it did not 
believe the disclosures that would be required by Sec.  1026.38(l)(7) 
applied to timeshare transactions because property taxes and insurance 
are usually included in the timeshare owner's annual maintenance fee 
instead of being escrowed. A State trade association representing 
bankers asserted creditors should be able to modify the disclosures 
that would have been required by Sec.  1026.38(l)(7) such that if the 
disclosure were intended for a consumer who establishes an escrow 
account, creditors should not have to provide disclosures intended for 
a consumer who waived escrow, and vice versa. The trade association 
commenter asserted that providing information that is not applicable to 
a particular transaction could distract the consumer from important 
information that actually applies to the consumer's transaction. A 
community bank commenter urged the Bureau to eliminate or significantly 
reduce the proposed disclosures. The commenter asserted that the 
proposed escrow disclosures are generally unnecessary. The commenter 
asserted that in most cases, a consumer is already aware of the 
consumer's hazard insurance and property tax costs, the disclosure of 
non-escrowed property costs is not relevant to the loan transaction, 
and the proposed disclosures duplicated the proposed disclosures that 
would have been required by proposed Sec.  1026.38(c) and (g)(3). 
Another community bank commenter asserted that a creditor should not 
have to disclose the statement that a consumer may contact the 
consumer's lender to ask if the consumer's loan can have an escrow 
account, which would have been required by proposed Sec.  
1026.38(l)(7)(i)(B)(1) if the creditor does not offer escrow accounts.
    Other industry commenters sought to persuade the Bureau to clarify 
and modify various aspects of proposed Sec.  1026.38(l)(7). Several 
national trade associations representing banks, mortgage bankers, and 
consumer mortgage companies appeared to suggest that industry 
stakeholders needed clarification from the Bureau with respect to how 
to count the first year after consummation in order to comply with the 
requirement to disclose the total amount for property costs that the 
consumer will be required to pay into an escrow account over the first 
year after consummation, as would have been required by proposed Sec.  
1026.38(l)(7)(i)(A)(1). A community bank commenter expressed similar 
concerns. Trade association commenters also asserted that the Bureau 
should not require creditors to list that the creditor does not require 
an escrow account as a reason for the non-establishment of an escrow 
account. They asserted that this explanation was encompassed within the 
proposed requirement to list that a consumer declined the escrow 
account as a reason for the non-establishment of an escrow account 
because a consumer could only decline an escrow account if the creditor 
did not require it. The trade association commenters further asserted 
that there should be a separate heading above the disclosure describing 
the consequences of the borrower failing to pay non-escrowed items 
required pursuant to proposed Sec.  1026.38(l)(7)(ii)(C) because the 
``In the future'' reference in proposed Sec.  1026.38(l)(7)(ii) would 
be misleading due to the fact that the consumer may have non-escrowed 
items that are due very shortly after closing.
    The trade association commenters, along with several bank 
commenters, sought clarification on how to comply with proposed Sec.  
1026.38(l)(7)(i)(B)(2),which would have required the creditor to 
disclose the amount of any fee the creditor imposes on the consumer for 
not establishing an escrow account in connection with the transaction, 
if the creditor does not charge a fee associated with the non-
establishment of escrow, but reflects the cost of non-establishment 
through the provision of different loan terms, such as a higher 
interest rate. One such commenter, a community bank, suggested that the 
Bureau not adopt Sec.  1026.38(l)(7)(i)(B)(2) because consumers pay for 
the escrow waiver fee through higher interest rates.

[[Page 80033]]

    Several industry commenters, including a GSE commenter, a law firm 
commenter submitting comments on behalf of its document software 
company client, and a title company commenter, sought clarification on 
escrowed and non-escrowed property costs. The GSE commenter also 
suggested that the Bureau standardize the capitalization of the term 
``escrowed property costs'' on final form H-25. It asserted that 
inconsistency in capitalization when referring to the same item could 
cause consumer confusion. On page 4 of proposed form H-25 of appendix 
H, ``escrowed property costs'' are shown capitalized to illustrate the 
disclosures that would have been required by proposed Sec.  
1026.38(l)(7), but the term is not shown capitalized on page 1 of 
proposed form H-25 to illustrate the disclosures that would have been 
required by proposed Sec.  1026.38(c)(2).
    One large bank commenter recommended that the Bureau change the 
proposed labels ``Initial Payment'' and ``Monthly Payment'' set forth 
in proposed Sec.  1026.38(l)(i)(A)(3) and (4), respectively, to 
``Initial Escrow Payment'' and ``Monthly Escrow Payment,'' 
respectively, and remove the word ``cushion'' from the description of 
the initial escrow payment to avoid risking consumer confusion. The 
commenter also suggested that the final disclosures include a statement 
that would expressly state that the consumer's loan terms may not allow 
for escrow account cancellation because it is prohibited under certain 
loan programs. Further, the commenter suggested that the Bureau include 
a disclosure that informs the consumer that State law does not require 
an escrow account among the reasons why an escrow account will not be 
established. The commenter was concerned that without the disclaimer, a 
consumer who desires to establish an escrow account, but is not aware 
that establishment is prohibited under State law, could make unfounded 
claims against the creditor.
    A document preparation company commenter shared the large bank 
commenter's concern about describing the initial escrow payment as a 
``cushion,'' as would have been required by proposed Sec.  
1026.38(l)(7)(i)(A)(3). The commenter also stated that the statements 
that would be required by proposed Sec.  1026.38(l)(7)(i)(A) would be 
easier to understand if the statement that the creditor may be liable 
for penalties and interest if it fails to make a payment for an 
escrowed cost preceded the statement that the consumer would have to 
pay such costs directly in the absence of the escrow account. In 
proposed form H-25, the statement on the creditor's potential liability 
for failing to pay escrowed costs is shown immediately following the 
statement about a consumer's direct payment obligations absent an 
escrow account. The commenter did not provide any explanation for why 
the proposed sequencing of the statements is not clear or why the 
alternative sequencing it suggested would add greater clarity to the 
disclosures that would be required by proposed Sec.  
1026.38(l)(7)(i)(A).
    One community bank commenter expressed concern that neither the 
model nor the sample Closing Disclosure forms provided an example where 
the consumer waived escrow. It asserted that creditors would need such 
an example to comply with proposed Sec.  1026.38(l)(7)(i)(B)(1), which 
would have required the disclosure of the estimated total amount the 
consumer will pay directly for charges described during the first year 
after consummation that are known to the creditor, labeled as 
``Estimated Property Cost over Year 1.''
    One title company commenter asserted that the Bureau should not 
require a creditor to provide the statement that the consumer would 
have to pay for property costs directly absent an escrow account but 
did not explain its position. The commenter also asserted that the 
requirement to disclose the estimated amount the consumer is likely to 
pay during the first year after consummation labeled ``Non-Escrowed 
Property Costs over Year 1,'' should be moved to the table titled ``No 
Escrow'' under proposed Sec.  1026.38(l)(7)(i)(B) because disclosures 
about escrowed and non-escrowed costs should be segregated on the 
Closing Disclosure for clarity. The commenter further asserted that the 
Bureau must make clear that cancellation of a consumer's escrow account 
requires lender approval.
    One bank employee commenter sought clarification on whether the 
creditor is required to disclose the amount of homeowner's association 
fees if the charge is not included in the consumer's escrow account. 
One mortgage broker commenter questioned why there is no disclosure 
that would inform a consumer about the amounts included in the cushion 
for the escrow account. Another commenter, self-identifying as an 
individual, suggested that the Bureau should define ``escrow account'' 
to improve consumer understanding.
Discussion
    The Bureau has considered the comments and is addressing them 
below.
    General requirements. With respect to the argument that creditors 
should be prohibited from imposing an escrow wavier fee, the Bureau 
believes such a prohibition would be outside the scope of this 
rulemaking. Accordingly, as long as some creditors assess the fee, it 
is important to inform consumers about the fee. Further, the Bureau has 
determined not to modify the disclosure requirements with respect to 
the disclosure of homeowner's association fees a consumer is required 
to pay with each periodic payment, because homeowner's association, 
condominium, or cooperative fees may not be due with every periodic 
payment. Adding this requirement may cause consumer confusion and be 
costly and burdensome to implement.
    With respect to industry commenters' request that the Bureau permit 
creditors to modify the proposed disclosures if the creditor determines 
the disclosure does not enhance consumer understanding or is 
inapplicable to the creditor, the Bureau generally believes that 
permitting creditors to omit disclosures based on the creditors' own 
judgment that they are inapplicable or do not enhance consumer 
understanding risks undermining the consumer's understanding of the 
transaction. This would be inconsistent with the purpose of this 
rulemaking and the requirements of Sec.  1026.38(t), for reasons 
discussed in greater detail in the section-by-section analyses to Sec.  
1026.19(e) and Sec.  1026.38(t). With respect to comments about the 
applicability of the disclosures to timeshare plans, the Bureau 
believes whether an annual maintenance fee that includes assessments 
for property taxes and insurance may be an escrow account for purposes 
of Sec.  1026.38(l)(7) would be a determination based on the particular 
facts and circumstances regarding the transaction. Comment 38(g)-5 
adopted in this final rule also provides guidance on the definition of 
an escrow account, and the guidance applies to the determination of 
whether an escrow account has been established for purposes of Sec.  
1026.38(l)(7). Further, the Bureau acknowledges that the initial escrow 
payment and monthly payment disclosures that would have been required 
by proposed Sec.  1026.38(l)(7)(i)(A)(3) and (4) reflect disclosures 
that would have been required by proposed Sec.  1026.38(g)(3) and 
(c)(1), respectively. But TILA section 129D(h) requires the creditor to

[[Page 80034]]

provide these disclosures in the Pre-Consummation Escrow Establishment 
Disclosure, and the Bureau believes that implementing these 
statutorily-required disclosures enhances consumer understanding of the 
escrow disclosure.
    With respect to industry commenters that requested that the Bureau 
modify various aspects of the content that would have been required by 
proposed Sec.  1026.38(l)(7), the Bureau has considered their 
suggestions and is making adjustments to the proposed disclosures to 
the extent the Bureau believes that these adjustments enhance consumer 
understanding, as described below. A number of comments the Bureau 
received on proposed Sec.  1026.38(l)(7) sought clarifications on the 
content of the proposed disclosure or expressed compliance concerns, 
and the Bureau is responding to them separately below.
    Content of proposed disclosures. The Bureau is adjusting the 
proposed labels ``Initial Payment'' and ``Monthly Payment'' set forth 
respectively in proposed Sec.  1026.38(l)(i)(A)(3) and (4), to 
``Initial Escrow Payment'' and ``Monthly Escrow Payment,'' 
respectively. As noted by the commenter, adding the word ``Escrow'' may 
clarify the nature of the payment disclosed. The Bureau believes the 
adjustment would enhance consumer understanding. The Bureau has decided 
not to finalize the proposed requirement that creditors state that the 
creditor does not require an escrow account as a reason for the non-
establishment of an escrow account. The Bureau believes that the 
explanation is encompassed within a related disclosure, for reasons 
provided by the commenters. The Bureau is not adding to the list of 
reasons that the creditor must disclose for escrow account non-
establishment. As discussed above, one large bank commenter suggested 
that the Bureau include a disclosure that informs the consumer that 
State law does not require an escrow account as a reason why an escrow 
account will not be established. The Bureau believes that the State 
laws at issue, as described by the commenter, do not support the 
argument that certain State laws prohibit the establishment of escrow 
accounts. It appears that the laws only prohibit creditors from 
requiring the consumer to establish or keep an escrow account. It does 
not appear that the referenced laws prohibit a creditor from 
establishing an escrow account for a consumer at the consumer's 
request.
    The Bureau does not believe any other adjustments or modifications 
to the content or format of the disclosure would enhance consumer 
understanding. The Bureau does not believe it is necessary to define 
``escrow account'' further. As the proposed disclosure indicates, 
variations exist with respect to the term (i.e., such accounts could 
also be called ``impound'' or ``trust'' accounts). Further, the Bureau 
believes that by the time that the consumer receives the disclosures 
that would have been required by Sec.  1026.38(l)(7), the consumer 
would have become familiarized with the term and the purpose of such 
accounts by seeing the term, first disclosed in the Loan Estimate, and 
by going through the origination process. The Bureau also believes that 
the capitalization decision the Bureau made with respect to the term 
``escrowed property costs'' is appropriate. On page 1 of form H-25, the 
term is part of a sentence. The Bureau believes that the absence of 
capitalization makes the sentence easier to read and comprehend. In 
contrast, on page 4, the term is capitalized because it is a label, and 
capitalization enhances prominence.
    The Bureau believes that requiring creditors to use the term 
``cushion'' for the disclosure required by Sec.  1026.38(l)(7)(i)(A)(3) 
to describe the initial escrow payment is appropriate because the term 
enhances consumer understanding that the initial escrow payment may 
exceed a monthly payment's worth of escrowed charges. The Bureau also 
does not believe that further explanation is needed to inform consumers 
about the amounts included in the ``cushion.'' This information is 
already disclosed pursuant to Sec.  1026.38(g)(3), and the disclosure 
under Sec.  1026.38(l)(7)(i)(A)(3) includes a cross-reference to that 
section.
    The Bureau is also not persuaded that a statement that the 
consumer's loan terms may not allow for the cancellation of an escrow 
account is necessary. The Bureau believes that the disclosures proposed 
under the reference ``In the future'' state clearly that the consumer 
may not be able to cancel the consumer's escrow account. The Bureau 
also does not believe that the reference ``In the future'' could 
mislead consumers about their responsibilities to pay non-escrowed 
property costs. The disclosure that would have been required by 
proposed Sec.  1026.38(l)(7)(i)(A)(2) clearly informs the consumer that 
the consumer should expect to have such costs due within the first year 
after consummation.
    In response to a suggestion to move the disclosure about a 
consumer's non-escrowed property costs over the first year after 
consummation to the proposed ``No Escrow'' table, the Bureau does not 
believe that the disclosure belongs in the ``No Escrow'' table. The 
disclosure is appropriately placed under the ``Escrow'' table as 
proposed because it is a disclosure provided to a consumer that has 
established an escrow account and reflects the possibility that the 
consumer will have property costs that will not be paid using escrow 
account funds. The Bureau is also not adopting the suggestion that the 
Bureau withdraw the proposed requirement that the creditor provide the 
statement that the consumer would have to pay for property costs 
directly, absent an escrow account. The disclosure was proposed to 
implement a statutory requirement set forth in TILA section 129D(j), 
and the Bureau believes that it would enhance consumer understanding.
    The Bureau has also considered the suggestion that the disclosure 
reflect that the consumer may only be able to cancel the consumer's 
escrow account with the creditor's consent. The Bureau believes that 
escrow account cancellation criteria could vary significantly, and the 
Bureau is concerned that adopting the suggestion to add certain 
specific criteria to the disclosure may confuse consumers, which would 
be inconsistent with the purpose of the integrated disclosures, which 
is to aid consumer understanding. Lastly, with respect to the 
suggestion that the Bureau re-sequence certain statements that would 
have been required by proposed Sec.  1026.38(l)(7)(i)(A) as shown on 
proposed form H-25, the Bureau does not believe the adjustment would 
enhance consumer understanding. Additionally, consumer testing results 
indicated that the model disclosure performed well with consumers, and 
the commenter did not offer any explanation for why the proposed 
sequence is unclear. See Kleimann Quantitative Testing Report, at 69-
70.
    Compliance questions. With respect to requests that the Bureau 
clarify how to count the first year after consummation to facilitate 
compliance with Sec.  1026.38(l)(7)(i)(A)(1), the Bureau believes that 
it is unnecessary because the text of proposed Sec.  
1026.38(l)(7)(i)(A)(1), which the Bureau is adopting as proposed in 
this final rule, would have provided clear instructions on how to 
determine the consumer's escrowed property costs over the first year 
after consummation. Additionally, some commenters had questions with 
respect to how to determine what charges are ``escrowed property 
costs'' and what charges are ``non-escrowed property costs.'' The 
Bureau believes that these questions are clearly addressed in proposed

[[Page 80035]]

Sec.  1026.38(l)(7)(i)(A)(1) and (2), respectively, which would have 
directed the creditor to Sec.  1026.37(c)(4)(ii) to make the 
determination. With respect to whether the creditor is required to 
disclose the amount of homeowner's association fees if the charge is 
not included in the consumer's escrow account, Sec.  1026.19(f)(1)(i) 
requires the creditor to disclose items on the Closing Disclosure that 
reflect the actual terms of the transaction. Additionally, proposed 
Sec.  1026.38(l)(7)(i)(A)(2) would have required that the creditor 
disclose ``non-escrowed property costs'' over the first year after 
consummation, which would have included non-escrowed homeowner's 
association fees, to the extent that the consumer is likely to pay 
these costs over the first year after consummation and to the extent 
that they are known to the creditor. Accordingly, if, for example, the 
consumer's escrowed costs do not include homeowner's association fees, 
but the creditor knows that the consumer is likely to pay $1,000 in 
homeowner's association fees, then the creditor must disclose the fee 
as required by Sec.  1026.38(l)(7)(i)(A)(2).
    With respect to questions about how to disclose the Escrow Waiver 
Fee as required by Sec.  1026.38(l)(7)(i)(B)(2) when the creditor does 
not impose a fee on the consumer for not establishing an escrow account 
in connection with the mortgage transaction, there would be no amount 
to disclose, and the disclosure would be left blank, as illustrated by 
form H-25 of appendix H to Regulation Z. Lastly, the Bureau recognizes 
that proposed form H-25 only provides illustrative examples of 
transactions where an escrow account has been established. However, the 
Bureau does not believe that an example illustrating a scenario in 
which the borrower has waived the escrow account is necessary to 
illustrate compliance with the proposed requirement to disclose 
estimated property costs over the first year after consummation, 
because, in that scenario, the calculation method is simple: all 
property costs described in Sec.  1026.37(c)(4)(ii) are ``non-escrowed 
property costs'' if the consumer has waived the escrow account.
    For the reasons stated above, the Bureau does not believe that it 
is necessary to make adjustments or modifications to proposed Sec.  
1026.38(l)(7) to address these concerns. But, as discussed above, the 
Bureau is making minor adjustments and modifications to the content and 
format of the disclosures in proposed Sec.  1026.38(l)(7) as 
illustrated by form H-25 of appendix H to Regulation Z to enhance 
consumer understanding. The Bureau adopts Sec.  1026.38(l)(7) and 
related commentary, with such adjustments and modifications, pursuant 
to its authority under section 105(a) of TILA, Dodd-Frank Act section 
1032(a), and, for residential mortgage loans, Dodd-Frank Act section 
1405(b).
Final Rule
    Under the subheading ``Escrow Account,'' Sec.  1026.38(l)(7) 
requires the creditor to disclose whether the consumer's loan will have 
an escrow account, and certain details about the payments made using 
escrow account funds and those the consumer must make directly. Under 
the ``Escrow Account'' subheading and under the reference ``For now,'' 
Sec.  1026.38(l)(7)(i) requires a statement that an escrow account may 
also be called an ``impound'' or ``trust'' account and a statement of 
whether the creditor has or will establish an escrow account at or 
before consummation in connection with the transaction for the costs 
that will be paid using escrow account funds described in Sec.  
1026.38(l)(7)(i)(A). Section 1026.38(l)(7)(i)(A) requires the following 
disclosures under the ``For now'' reference: (1) a statement that the 
creditor may be liable for penalties and interest if it fails to make a 
payment for any costs for which the escrow account has been 
established, (2) a statement that the consumer would be required to pay 
such costs directly if no account is established, and (3) a table 
titled ``Escrow'' that contains, if an escrow account is or will be 
established, an itemization of the following: (i) the total amount the 
consumer will be required to pay into an escrow account over the first 
year after consummation for payment of the charges referenced in Sec.  
1026.37(c)(4)(ii), labeled ``Escrowed Property Costs over Year 1,'' 
together with a descriptive name for each such charge, calculated as 
the amount disclosed under Sec.  1026.38(l)(7)(i)(A)(4) multiplied by 
the number of periodic payments scheduled to be made to the escrow 
account during the first year after consummation; (ii) the estimated 
amount the consumer is likely to pay during the first year after 
consummation for charges described in Sec.  1026.37(c)(4)(ii) that are 
known to the creditor and that will not be paid using escrow account 
funds, labeled ``Non-Escrowed Property Costs over Year 1,'' together 
with a descriptive name for each such charge and a statement that the 
consumer may have to pay other costs that are not listed; (iii) the 
total amount disclosed pursuant to Sec.  1026.38(g)(3), a statement 
that the payment is a cushion for the escrow account, labeled ``Initial 
Escrow Payment,'' and a reference to the information disclosed pursuant 
to Sec.  1026.38(g)(3); and (iv) the amount the consumer will be 
required to pay into the escrow account with each periodic payment 
during the first year after consummation for payment of the charges 
described in Sec.  1026.37(c)(4)(ii), labeled ``Monthly Escrow 
Payment.'' As discussed above, the labels ``Initial Escrow Payment'' 
and ``Monthly Escrow Payment'' reflect adjustments the Bureau has made 
in response to comments.
    Section 1026.38(l)(7)(i)(A)(5) provides that a creditor complies 
with the requirements of Sec.  1026.38(l)(7)(i)(A)(1) and 
(l)(7)(i)(A)(4) if the creditor bases the numerical disclosures 
required by those paragraphs on amounts derived from the escrow account 
analysis required under Regulation X, 12 CFR 1024.17. Comments 
38(l)(7)(i)(A)(2)-1 and 38(l)(7)(i)(A)(4)-1 are adopted as proposed and 
set forth guidance with respect to the calculation of the itemized 
amounts that are required to be disclosed pursuant to Sec.  
1026.38(l)(7)(i)(A).
    Section 1026.38(l)(7)(i)(B) requires a statement of whether the 
loan will not have an escrow account and the reason the loan will not 
have an escrow account. For example, if the loan will not have an 
escrow account because either the consumer declined to have one or the 
creditor does not offer them, the disclosure must state that fact. The 
finalized statement is different from the proposed statement because, 
as discussed above, commenters observed that a consumer could only 
decline an escrow account if the creditor did not require it. The 
Bureau is persuaded that it is unnecessary to require creditors to list 
``the creditor does not require an escrow account'' as separate reason 
for why the loan will not have an escrow account.
    Section 1026.38(l)(7)(i)(B) also requires a statement that the 
consumer must pay all property costs, such as taxes and homeowner's 
insurance, directly, as well as a statement that the consumer may 
contact the creditor to inquire about the availability of an escrow 
account. Finally, Sec.  1026.38(l)(7)(i)(B) requires a table titled 
``No Escrow,'' that contains, if an escrow account will not be 
established, an itemization of the following: (1) the estimated total 
amount the consumer will pay directly for charges described in Sec.  
1026.37(c)(4)(ii) during the first year after consummation that are 
known to the creditor and a statement that, without an escrow account, 
the consumer must pay the identified costs,

[[Page 80036]]

possibly in one or two large payments, labeled as ``Estimated Property 
Costs over Year 1,'' and (2) the amount of any fee that the creditor 
may impose for not establishing an escrow account, labeled ``Escrow 
Waiver Fee.'' The disclosures required by Sec.  1026.38(l)(7)(i)(B) are 
under the ``For now'' reference that is required by Sec.  
1026.38(l)(7)(i). Comment 38(l)(7)(i)(B)(1)-1 is adopted as proposed 
and provides guidance with respect to the calculation of the amounts 
that are required to be disclosed pursuant to Sec.  
1026.38(l)(7)(i)(B).
    Under the subheading ``Escrow Account,'' required by Sec.  
1026.38(l)(7) and under the reference ``In the future,'' Sec.  
1026.38(l)(7)(ii) requires information about future requirements for 
property costs. Specifically, Sec.  1026.38(l)(7)(ii)(A) requires a 
statement that the consumer's property costs may change and, as a 
result, the consumer's escrow amount may change. Section 
1026.38(l)(7)(ii)(B) requires a statement that the consumer may be able 
to cancel an established escrow account, but if the account is 
cancelled the consumer would be required to pay those costs directly 
unless a new escrow account is established.
    Section 1026.38(l)(7)(ii)(C) requires a description of the 
consequences of failing to pay the property costs, including the 
imposition of fines and penalties or imposition of a tax lien by the 
consumer's State and local government, and possible actions by the 
creditor, such as adding the outstanding amounts to the loan balance, 
adding an escrow account for the loan, or purchasing property insurance 
on the consumer's behalf (with the statement that it is likely to be 
more expensive and provide fewer benefits than what the consumer could 
purchase directly).
    Legal authority. The Bureau believes that requiring disclosures 
regarding the establishment of an escrow account, as well as the non-
establishment of an escrow account, will provide consumers with 
information needed to evaluate the costs and fees associated with 
mortgage loans and to understand their ongoing monthly obligations 
regardless of whether the transaction would include an escrow account. 
Disclosure of this information will ensure that consumers have the 
facts needed to understand a key requirement of their mortgage loan and 
avoid the uninformed use of credit, consistent with the purposes of 
TILA. In addition, the Bureau believes that the disclosures adopted in 
this final rule will ensure that the features of the mortgage 
transaction are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to understand the costs, 
benefits, and risks associated with the mortgage transaction, in light 
of the facts and circumstances, consistent with Dodd-Frank Act section 
1032(a), and will improve consumer awareness and understanding of 
residential mortgage loans, which is in the interest of consumers and 
the public, consistent with Dodd-Frank Act section 1405(b).
38(m) Adjustable Payment Table
    For transactions subject to proposed Sec.  1026.19(f), the Bureau 
proposed Sec.  1026.38(m) pursuant to TILA section 128(b)(2)(C)(ii), 
its implementation authority under TILA section 105(a), and its 
authority under section 1032(a) of the Dodd-Frank Act and RESPA section 
19(a). Proposed Sec.  1026.38(m) would have required creditors to 
disclose on the Closing Disclosure the Adjustable Payment table 
required by Sec.  1026.37(i) if, under the terms of the legal 
obligation, the principal and interest payment may adjust without a 
corresponding adjustment to the interest rate or if the loan is a 
seasonal payment product under Sec.  1026.38(a)(5)(iii). The 
information required to be disclosed in the table would have included: 
the periodic payment at the first adjustment of the payment; the number 
of the earliest number payment that could reflect an adjustment to the 
amount of the periodic payment; the maximum possible principal and 
interest payment; the number of the earliest payment that could reflect 
the maximum possible periodic payment; an affirmative or negative 
statement of whether the loan has an interest only, payment-option, 
step-payment period, or seasonal payment period; and the length of such 
a period and the payments affected.
    The requirements of proposed Sec.  1026.38(m) would have mirrored 
those of proposed Sec.  1026.37(i). Accordingly, proposed comment 
38(m)-1 would have directed creditors to the commentary to proposed 
Sec.  1026.37(i) for guidance on the disclosures required by proposed 
Sec.  1026.38(m). Proposed comment 38(m)-2 would have clarified that, 
although the disclosure required by proposed Sec.  1026.38(m) is to be 
presented under a different master heading than the disclosure required 
by proposed Sec.  1026.37(i), the other requirements applicable to 
proposed Sec.  1026.37(i) apply to proposed Sec.  1026.38(m). Proposed 
comment 38(m)-3 would have clarified that the prohibition against 
presenting the table required by proposed Sec.  1026.37(i) except if 
the conditions of that paragraph are satisfied applies to proposed 
Sec.  1026.38(m). Proposed comment 38(m)-4 would have clarified that 
the final terms that will apply to the credit transaction must be 
disclosed pursuant to proposed Sec.  1026.38(m).
    Comments received related to the AP table are discussed in the 
section-by-section analysis of Sec.  1026.37(i). The Bureau did not 
receive any comments specifically related to proposed Sec.  1026.38(m) 
or its related commentary that were not discussed with respect to Sec.  
1026.37(i). Accordingly, the Bureau is adopting Sec.  1026.38(m) and 
comments 38(m)-1 and -2 as proposed. The Bureau is adopting comments 
38(m)-3 and -4 substantially as proposed but with minor modifications 
for clarity. For a detailed description of the Bureau's implementation 
of TILA section 128(b)(2)(C)(ii) and use of its authority under TILA 
section 105(a), Dodd-Frank Act section 1032(a), and RESPA section 
19(a), see the section-by-section analysis of Sec.  1026.37(i).
38(n) Adjustable Interest Rate Table
    For transactions subject to Sec.  1026.19(f), proposed Sec.  
1026.38(n) would have used the implementation authority of TILA section 
105(a) and the authority of Dodd-Frank Act section 1032(a) and RESPA 
section 19(a) to require creditors to disclose on the Closing 
Disclosure the Adjustable Interest Rate table required by Sec.  
1026.37(j) if, under the final terms of the legal obligation, the 
interest rate may adjust after consummation. The information required 
to be disclosed in the table as proposed would have included: (i) The 
index and margin for an adjustable rate loan for which the interest 
rate will adjust according to an index that is beyond the control of 
the creditor; (ii) for a loan with an interest rate that changes based 
on something other than such an index, such as a ``step-rate'' product, 
the amount of the scheduled adjustments and their frequency; (iii) the 
interest rate at consummation; (iv) the minimum and maximum possible 
interest rates after consummation of the loan, after any introductory 
or teaser rate expires; (v) the maximum possible change in the interest 
rate at the first adjustment; (vi) the maximum possible change for 
subsequent adjustments of the interest rate; (vii) the month after 
consummation when the interest rate may first change, counted from the 
date that interest begins to accrue for the first periodic principal 
and interest payment; and (viii) the frequency of subsequent interest 
rate adjustments after consummation. The requirements of proposed Sec.  
1026.38(n) would have mirrored those of proposed Sec.  1026.37(j). 
Accordingly, proposed comment 38(n)-1 would have directed creditors to 
the commentary to proposed Sec.  1026.37(j) for

[[Page 80037]]

guidance on the disclosures required by proposed Sec.  1026.38(n). 
Proposed comment 38(n)-4 would have clarified that, although the 
disclosure required pursuant to proposed Sec.  1026.38(n) is to be 
presented under a different master heading than the disclosure required 
by Sec.  1026.37(j), the other requirements applicable to Sec.  
1026.37(j) apply to proposed Sec.  1026.38(n). Proposed comment 38(n)-3 
would have clarified that the prohibition against presenting the table 
required by Sec.  1026.37(j) if the interest rate will not change after 
consummation applies to proposed Sec.  1026.38(n). Proposed comment 
38(n)-4 would have clarified that the final terms that will apply to 
the credit transaction must be disclosed pursuant to proposed Sec.  
1026.38(n).
    Comments received related to the AIR table are discussed in the 
section-by-section analysis of Sec.  1026.37(j). The Bureau did not 
receive any comments specifically related to proposed Sec.  1026.38(n) 
or its accompanying commentary that were not discussed with respect to 
Sec.  1026.37(j). Accordingly, the Bureau is adopting Sec.  1026.38(n) 
and comments 38(n)-1 and -2 as proposed. The Bureau is adopting 
comments 38(n)-3 and -4 substantially as proposed but with minor 
modifications for clarity.
    For a detailed description of the Bureau's implementation of these 
rules and use of TILA section 105(a), Dodd-Frank Act section 1032(a), 
and RESPA section 19(a) authority, see the section-by-section analysis 
of Sec.  1026.37(j) above.
38(o) Loan Calculations
    Proposed Sec.  1026.38(o) would have required creditors to disclose 
in a separate table under the heading ``Loan Calculations,'' certain 
information required by TILA section 128(a)(2) through (5), (8), (17), 
and (19). Specifically, the table required by proposed Sec.  1026.38(o) 
would have needed to contain the total of payments, finance charge, 
amount financed, annual percentage rate, total interest percentage, and 
the approximate cost of funds disclosures described in proposed Sec.  
1026.38(o)(1) through (6). Pursuant to proposed Sec.  1026.38(t) and 
form H-25, the table required by proposed Sec.  1026.38(o) would have 
appeared on the final page of the Closing Disclosure, apart from key 
loan terms identified on the first page of the Closing Disclosure. The 
Bureau observed in the proposal that, based on research regarding 
consumer comprehension and behavior and the results of the Bureau's 
consumer testing, the Bureau believed that the disclosure of these 
calculations on the final page of the Closing Disclosure and apart from 
key loan terms may reduce information overload and enhance the overall 
understanding of the Closing Disclosure.
    The Bureau further observed that research suggests that consumers 
can process only a finite amount of information when making complex 
decisions. As a result, an effective disclosure regime minimizes the 
risk of distraction and overload by emphasizing information that is 
important to consumer comprehension, while placing less emphasis on 
disclosures that are less useful to consumers. The Bureau noted that 
consumer testing conducted by the Bureau for purposes of developing the 
Closing Disclosure and by the Board for purposes of its 2009 Closed-End 
Proposal indicates that consumer understanding is enhanced if the loan 
calculations in proposed Sec.  1026.38(o) are disclosed together and 
less prominently than disclosures that are most important to consumers' 
understanding of their mortgage transactions, such as interest rate and 
monthly payment. See Kleimann Testing Report at 297-304; 74 FR 43293-
98, 43306-09.
    The Bureau solicited comment on whether the disclosures in proposed 
Sec.  1026.38(o) would enhance consumers' ability to understand their 
loan transactions or serve other important purposes and, if not, 
whether the Bureau should use its authority under TILA section 105(a) 
and (f) and Dodd-Frank Act sections 1032(a) and 1405(b) to exempt 
transactions subject to Sec.  1026.19(f) from certain of these 
requirements.
38(o)(1) Total of Payments
    TILA section 128(a)(5) and (8) requires creditors to disclose the 
sum of the amount financed and the finance charge using the term 
``Total of Payments,'' and a descriptive explanation of that term. 15 
U.S.C. 1638(a)(5), (8). Current Sec.  1026.18(h) implements these 
statutory provisions by requiring creditors to disclose the ``total of 
payments,'' using that term, and a descriptive explanation that the 
figure represents the amount the consumer will have paid after making 
all scheduled payments. Current comment 18(h)-2 provides that creditors 
must calculate the total of payments amount for transactions subject to 
Sec.  1026.18(s) using the rules in Sec.  1026.18(g) and associated 
commentary and, for adjustable rate transactions, comments 17(c)(1)-8 
and -10. Current comment 18(g)-1 provides guidance to creditors on the 
amounts to be included in the total of payments calculation. Current 
comment 18(h)-1 allows creditors to revise the total of payments 
descriptive statement for variable-rate transactions to convey that the 
disclosed amount is based on the annual percentage rate and may change. 
In addition, current comments 18(h)-3 and -4 permit creditors to omit 
the total of payments disclosure in certain single-payment transactions 
and for demand obligations that have no alternate maturity rate.
The Bureau's Proposal
    Proposed Sec.  1026.38(o)(1) would have implemented the 
requirements of TILA section 128(a)(5) and (8) for transactions subject 
to proposed Sec.  1026.19(f), pursuant to the Bureau's implementation 
authority under TILA section 105(a). Specifically, proposed Sec.  
1026.38(o)(1) would have required creditors to disclose on the Closing 
Disclosure the term ``Total of Payments,'' and the statement that the 
disclosure is ``the total you will have paid after you make all 
payments of principal, interest, mortgage insurance, and loan costs, as 
scheduled.'' For the reasons set forth in the section-by-section 
analysis of Sec.  1026.37(l)(1)(i), the Bureau proposed to modify the 
requirement of TILA section 128(a)(5) that the total of payments 
disclose the sum of the amount financed and the finance charge. 
Research has shown that consumers misunderstand the total of payments 
disclosure under current rules and do not use it when evaluating loan 
offers.
    Thus, the Bureau proposed to modify the current rules and include 
in the total of payments calculation principal, interest, mortgage 
insurance (including any prepaid or escrowed mortgage insurance), and 
loan costs disclosed pursuant to proposed Sec.  1026.37(f). Proposed 
comment 38(o)(1)-1 would have clarified that, for purposes of Sec.  
1026.18(o)(1), the total of payments is calculated in the same manner 
as the ``In 5 Years'' disclosure pursuant to Sec.  1026.37(l)(1)(i), 
except that the disclosed amount reflects the total payments through 
the end of the loan term. The comment also would have referred 
creditors to comment 37(1)(1)(i)-1 for guidance on the amounts included 
in the total of payments calculation.
Comments
    The Bureau received very few comments on the disclosure of the 
total of payments calculation in the Closing Disclosure. One consumer 
commenter supported the inclusion of the total of payments calculation 
on the Closing Disclosure. Two industry trade

[[Page 80038]]

association commenters requested additional guidance on how to 
calculate this particular disclosure. An industry commenter sought 
clarification as to whether hard-coded text is required on this 
disclosure or if the text can change, and if the latter, sought 
acceptable verbiage that could be used.
Final Rule
    For the reasons discussed below, the Bureau is adopting Sec.  
1026.38(o)(1) and comment 38(o)(1)-1 as proposed. As discussed in the 
section-by-section analysis of Sec.  1026.37(l) and noted above, the 
Bureau has decided to modify the total of payments disclosure to 
reflect the total payments over five years, rather than the life of the 
loan, on the Loan Estimate provided to consumers near the time of 
application. The Bureau determined based upon research and consumer 
testing that the ``In 5 Years'' disclosure is beneficial to consumers 
in comparing loans they are considering, and that it is a more 
accessible time period for consumers than the life of the loan 
(typically 30 years). Notwithstanding concerns about the utility of the 
total of payments disclosure on the Loan Estimate, the Bureau 
recognizes that the total of payments disclosure offers some important 
benefits on the Closing Disclosure. The Closing Disclosure is different 
than the Loan Estimate; although a five-year metric is appropriate for 
the Loan Estimate, a metric showing the total of payments for the full 
term is more appropriate for the Closing Disclosure. The total of 
payments disclosure is commonly used by creditors and supervisory 
agencies for compliance purposes, as well as by consumer advocates. In 
addition, consumer testing indicates that consumer participants used 
the total of payments calculation and it helped increase their 
understanding of loan costs. During the Bureau's consumer testing, both 
experienced and inexperienced consumer participants often commented on 
the total amount and saw it as an important piece of information that 
would assist them in evaluating a loan. See Kleimann Testing Report at 
252.
    For the reasons set forth in the section-by-section analysis of 
Sec.  1026.37(l)(1)(i)--to improve consumer understanding of the 
meaning of the total of payments calculation and clarify its importance 
in the decision-making process--the Bureau is modifying the requirement 
of TILA section 128(a)(5) that the total of payments disclose the sum 
of the amount financed and the finance charge. Instead, the Bureau has 
decided to include in the total of payments calculation principal, 
interest, mortgage insurance (including any prepaid or escrowed 
mortgage insurance), and loan costs disclosed pursuant to Sec.  
1026.37(f). The Bureau is making this modification pursuant to TILA 
section 105(a), Dodd-Frank Act section 1032(a), and, for residential 
mortgage loans, Dodd-Frank Act section 1405(b). By focusing on amounts 
that are more likely to be understood and used by consumers, unlike the 
regulatory amounts of the finance charge and the amount financed, the 
Bureau believes that the total of payments disclosure will give 
consumers a way of measuring the cost of the loan with more readily 
understandable information, which is one of the purposes of the 
integrated disclosures. Dodd-Frank Act sections 1098 and 1100A. The 
Bureau believes that this modification will enhance consumer 
understanding of mortgage transactions because including loan costs, 
rather than the finance charge, in the total of payments calculation 
will allow consumers to identify the costs that are included in the 
total of payments calculation. Consumers can refer to other parts of 
the Closing Disclosure to determine which loan costs are included in 
the total of payments disclosure, in contrast to the components of the 
finance charge, which the consumer has no way to identify. Further, the 
Bureau believes that including the same costs and fees in the total of 
payments disclosure as are in the ``In 5 Years'' disclosure pursuant to 
Sec.  1026.37(l)(1)(i) will ease compliance burden for creditors. The 
Bureau believes this modification will improve consumer awareness and 
understanding of residential mortgage loans, which is in the interest 
of consumers and the public, consistent with Dodd-Frank Act section 
1405(b). In addition, the Bureau believes that the disclosure ensures 
that the features of consumer credit transactions secured by real 
property are fully, accurately, and effectively disclosed to consumers 
in a manner that permits consumers to understand the costs, benefits, 
and risks associated with the product or service, in light of the facts 
and circumstances, consistent with Dodd-Frank Act section 1032(a).
    With respect to the comments seeking additional guidance in 
calculating the total of payments disclosure, comment 38(o)(1)-1 
clarifies that, for purposes of Sec.  1026.38(o)(1), the total of 
payments is calculated in the same manner as the ``In 5 Years'' 
disclosure pursuant to Sec.  1026.37(l)(1)(i), except that the 
disclosed amount reflects the total payments through the end of the 
loan term. As discussed above, the Bureau also believes that including 
the same costs and fees in the total of payments disclosure as are in 
the ``In 5 Years'' disclosure pursuant to Sec.  1026.37(l)(1)(i) will 
ease compliance burden for creditors.
    Section 1026.38(o)(1) requires creditors to disclose on the Closing 
Disclosure the term ``Total of Payments,'' and the statement that the 
disclosure is the ``total you will have paid after you make all 
payments of principal, interest, mortgage insurance, and loan costs, as 
scheduled.''
    The final rule does not allow creditors to modify the descriptive 
statement that accompanies the total of payments disclosure for 
variable-rate transactions or to omit the total of payments disclosure 
in single-payment transactions and for demand obligations that have no 
alternate maturity rate, in contrast to current comments 18(h)-1, -3, 
and -4. The Bureau believes that consistent disclosures will better 
enhance consumer understanding of credit terms and will ease compliance 
burden for creditors.
38(o)(2) Finance Charge
    TILA section 128(a)(3) and (8) requires creditors to disclose the 
``finance charge'' and a brief descriptive statement of the finance 
charge. 15 U.S.C. 1638(a)(3), (8). Current Sec.  1026.18(d) implements 
these provisions by requiring creditors to disclose the ``finance 
charge,'' and a brief description such as ``the dollar amount the 
credit will cost you.'' Current comment 18(d)-1 allows creditors to 
modify the descriptive statement for variable rate transactions with a 
phrase indicating that the disclosed amount is subject to change. In 
addition, current Sec.  1026.17(a)(2), which implements TILA section 
122(a), requires creditors to disclose the finance charge (along with 
the APR) more conspicuously than any other required disclosure, except 
the creditor's identity. The rules addressing which charges must be 
included in the finance charge are set forth in TILA section 106, and 
are discussed more fully above with respect to Sec.  1026.4.
The Bureau's Proposal
    Proposed Sec.  1026.38(o)(2) would have implemented TILA section 
128(a)(3) and (8) for transactions subject to Sec.  1026.19(f), 
pursuant to the Bureau's implementation authority under TILA section 
105(a). Proposed Sec.  1026.38(o)(2) would have required creditors to 
disclose the finance charge, using that term, and the descriptive 
statement ``the

[[Page 80039]]

dollar amount the loan will cost you,'' in the table required by 
proposed Sec.  1026.38(o). Proposed comments 38(o)(2)-1 and -2 would 
have provided guidance to creditors on how to disclose and calculate 
the finance charge. The proposed rule would not have allowed creditors 
to modify the descriptive statement that accompanies the finance charge 
disclosure for variable-rate transactions, in contrast to current 
comment 18(d)-1, because the Bureau believed that consistent 
disclosures will better enhance consumer understanding of credit terms 
and will ease compliance burden for creditors. Proposed Sec.  
1026.38(o)(2) also would have provided that the disclosed finance 
charge and other disclosures affected by the disclosed finance charge 
(including the amount financed and the annual percentage rate) shall be 
treated as accurate if the amount disclosed as the finance charge is 
understated by no more than $100 or is greater than the amount required 
to be disclosed. However, the Bureau solicited comment on whether and 
the amount by which this tolerance should be raised in light of the 
proposed expanded definition of the finance charge for closed-end 
transactions secured by real property or a dwelling. The Bureau 
proposed to exercise its authority under TILA section 105(a) and (f), 
Dodd-Frank Act section 1032(a), and, for residential mortgage loans, 
Dodd-Frank Act section 1405(b) to except transactions subject to 
proposed Sec.  1026.19(f) from the requirement under TILA section 
122(a) that the finance charge be disclosed more conspicuously than 
other disclosures.
Comments
    The Bureau received very few comments on this aspect of the 
proposal. One industry commenter argued that if the Bureau adopts an 
``all-in'' APR, the current $100 tolerance for the finance charge 
should be adjusted for inflation. One industry commenter was confused 
as to from where the Finance Charge numbers originate. Another industry 
commenter sought clarification as to whether hard-coded text is 
required for this disclosure or if the text can change, and if the 
latter, sought acceptable verbiage that could be used. One law firm 
commenter argued that the ``Finance Charge'' disclosure should be moved 
to a more prominent part of the Closing Disclosure.
Final Rule
    For the reasons discussed below, the Bureau is adopting Sec.  
1026.38(o)(2) and comments 38(o)(2)-1 and 38(o)(2)-2 as proposed. 
Section 1026.38(o)(2) requires creditors to disclose the finance 
charge, using that term, and the descriptive statement ``the dollar 
amount the loan will cost you.'' The Bureau is exercising its authority 
under TILA section 105(a) and (f), Dodd-Frank Act section 1032(a), and, 
for residential mortgage loans, Dodd-Frank Act section 1405(b) to 
except transactions subject to Sec.  1026.19(f) from the requirement 
under TILA section 122(a) that the finance charge be disclosed more 
conspicuously than other disclosures. The Bureau has considered the 
purposes for which it may exercise its authority under TILA section 
105(a) and, based on that review, believes that the exception is 
appropriate.
    Here, the exception from the TILA section 122(a) requirement that 
the finance charge be more conspicuously disclosed than other 
disclosures effectuates TILA's purpose of achieving a meaningful 
disclosure of credit terms for transactions subject to Sec.  
1026.19(f). As discussed in the section-by-section analysis of Sec.  
1026.37(l), consumers generally do not understand the finance charge 
and do not use it when making decisions about their loan. With respect 
to the comment that the finance charge be disclosed in a more prominent 
place on the Closing Disclosure, the Bureau believes that consumer 
understanding is enhanced by disclosing the finance charge with other 
loan calculations, such as total of payments, amount financed, and 
total interest percentage, for transactions subject to Sec.  
1026.19(f), and that a more prominent disclosure of the finance charge 
may not provide a meaningful benefit to consumers. Rather, disclosure 
of the finance charge separately from the information that is important 
to consumer understanding of credit terms may enhance consumer 
understanding by avoiding information overload. Although concerns 
regarding consumer distraction and information overload persist at the 
stage of the transaction where the consumer receives the Closing 
Disclosure, the Bureau believes that disclosing the finance charge with 
other loan calculations on the final page of the Closing Disclosure as 
a general reference for the consumer after closing will mitigate these 
concerns.
    The Bureau also recognizes that creditors, consumer advocates, and 
State and Federal supervisory agencies use the finance charge when 
calculating or verifying the calculation of the APR, determining 
compliance with certain price thresholds, and for a range of other 
purposes, including the right of rescission pursuant to TILA section 
125. 15 U.S.C. 1635. Accordingly, to preserve the finance charge 
disclosure for these purposes, the Bureau is requiring creditors to 
disclose the finance charge on the Closing Disclosure provided to 
consumers at least three days prior to consummation.
    The Bureau also is adopting this exemption pursuant to its 
authority under TILA section 105(f). 15 U.S.C. 1604(f)(1). The Bureau 
has considered the factors in TILA section 105(f) and has determined 
that, for the reasons discussed above, an exemption is appropriate 
under that provision. Specifically, the Bureau has determined that the 
exemption is appropriate for all affected borrowers, regardless of 
their other financial arrangements and financial sophistication and the 
importance of the loan to them. Similarly, the Bureau has determined 
that the exemption is appropriate for all affected loans, regardless of 
the amount of the loan and whether the loan is secured by the principal 
residence of the consumer. Furthermore, the Bureau has determined that, 
on balance, the exemption will simplify the credit process without 
undermining the goal of consumer protection or denying important 
benefits to consumers. Highlighting the finance charge on the 
disclosure form contributes to overall consumer confusion and 
information overload, complicates the mortgage lending process, and 
hinders consumers' ability to understand important loan terms. For 
these same reasons, the Bureau has determined that the disclosure of 
the finance charge would ensure that the features of consumer credit 
transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances, consistent 
with section 1032(a) of the Dodd-Frank Act, and will improve consumer 
awareness and understanding of residential mortgage loans, which is in 
the interest of consumers and the public, consistent with Dodd-Frank 
Act section 1405(b).
    One industry commenter was confused as to from where the Finance 
Charge numbers originate, but the Bureau notes that comment 38(o)(2)-1 
clarifies that the finance charge is calculated in accordance with the 
requirements of Sec.  1026.4 and its commentary. One industry commenter 
argued that if the Bureau adopts the expanded definition of the finance 
charge the Bureau also proposed in the TILA-RESPA Proposal, then the 
current $100 tolerance for the finance charge should be adjusted for 
inflation. The Bureau notes that this concern is moot

[[Page 80040]]

because the Bureau has decided not to adopt an expanded definition of 
the finance charge at this time. See the section-by-section analysis of 
Sec.  1026.4, above.
38(o)(3) Amount Financed
    TILA section 128(a)(2) and (8) requires creditors to disclose the 
``amount financed,'' using that term, and a brief descriptive 
statement. 15 U.S.C. 1638(a)(2), (8). Current Sec.  1026.18(b) 
implements this provision by requiring creditors to disclose the amount 
financed, using that term, together with a brief description that the 
amount financed represents the amount of credit of which the consumer 
has actual use.
The Bureau's Proposal
    The Bureau proposed new Sec.  1026.38(o)(3) to implement TILA 
section 128(a)(2) and (8) for transactions subject to proposed Sec.  
1026.19(f), pursuant to its implementation authority under TILA section 
105(a). Proposed Sec.  1026.38(o)(3) would have required creditors to 
disclose the amount financed, using that term, together with the 
descriptive statement, ``the loan amount available after paying your 
upfront finance charge.'' Proposed comment 38(o)(3)-1 would have 
clarified that, for purposes of Sec.  1026.38(o)(3), the amount 
financed disclosure is calculated in accordance with the requirements 
of Sec.  1026.18(b) and its commentary.
Comments
    In response to the proposal, several consumer advocacy group and 
industry trade association commenters argued that the ``Amount 
Financed'' disclosure should be eliminated because it is confusing to 
consumers and since it serves no useful purpose to the consumer as the 
loan amount is now included in the Closing Disclosure. These commenters 
contended that even though this disclosure is mandated by the Dodd-
Frank Act, the Bureau should exercise its exception and modification 
authority to eliminate it, consistent with avoiding consumer confusion 
and information overload. One law firm commenter argued that the 
``Amount Financed'' disclosure should be moved to a more prominent part 
of the Closing Disclosure.
    An industry commenter suggested that the Bureau describe the 
``Amount Financed'' disclosure as the loan amount reduced by the 
prepaid finance charge. This commenter also suggested that the Bureau 
explain that the prepaid finance charge entails the closing costs 
associated with getting a mortgage loan rather than paying cash. An 
industry commenter sought clarification as to whether hard-coded text 
is required for this disclosure or if the text can change, and if the 
latter, sought acceptable verbiage that could be used.
Final Rule
    For the reasons discussed below, the Bureau is adopting Sec.  
1026.38(o)(3) and comment 38(o)(3)-1 as proposed. Although research 
shows that many consumers do not fully understand the amount financed, 
the ``Amount Financed'' is an existing Regulation Z disclosure used to 
calculate the APR and helps facilitate compliance. The Bureau believes 
that requiring creditors to disclose the amount financed, using that 
term, together with the descriptive statement, ``the loan amount 
available after paying your upfront finance charge,'' is appropriate to 
serve TILA's purpose of assuring a meaningful disclosure of credit 
terms. Comment 38(o)(3)-1 clarifies that the amount financed is 
calculated in accordance with the requirements of Sec.  1026.18(b) and 
its commentary.
    With respect to the comment that the amount financed be disclosed 
more prominently on the Closing Disclosure, the Bureau believes that 
consumer understanding is enhanced by disclosing the amount financed 
with other loan calculations, such as total of payments, finance 
charge, and total interest percentage, for transactions subject to 
Sec.  1026.19(f), and that a more prominent disclosure of the amount 
financed may not provide a meaningful benefit to consumers. Rather, 
disclosure of the amount financed separately from the information that 
is important to consumer understanding of credit terms may enhance 
consumer understanding by avoiding information overload. Although 
concerns regarding consumer distraction and information overload 
persist at the stage of the transaction where the consumer receives the 
Closing Disclosure, the Bureau believes that disclosing the amount 
financed with other loan calculations on the final page of the Closing 
Disclosure as a general reference for the consumer after closing will 
mitigate these concerns.
    Accordingly, the Bureau believes that the disclosure of the amount 
financed would ensure that the features of consumer credit transactions 
secured by real property are fully, accurately, and effectively 
disclosed to consumers in a manner that permits consumers to understand 
the costs, benefits, and risks associated with the product or service, 
in light of the facts and circumstances, consistent with 1032(a) of the 
Dodd-Frank Act, and will improve consumer awareness and understanding 
of residential mortgage loans, which is in the interest of consumers 
and the public, consistent with Dodd-Frank Act section 1405(b).
38(o)(4) Annual Percentage Rate
    TILA section 128(a)(4) and (8) requires creditors to disclose the 
annual percentage rate, together with a brief descriptive statement. 15 
U.S.C. 1638(a)(4), (8). Current Sec.  1026.18(e) implements this 
requirement by requiring creditors to disclose the ``annual percentage 
rate,'' using that term, and a brief description such as ``the cost of 
your credit as a yearly rate.'' 15 U.S.C. 1632(a). In addition, TILA 
section 122(a) requires that the annual percentage rate be more 
conspicuous than other disclosures, except the disclosure of the 
creditor's identity. This requirement is implemented in current Sec.  
1026.18(e).
The Bureau's Proposal
    Proposed Sec.  1026.38(o)(4) would have implemented the 
requirements of TILA section 128(a)(4) and (8) for transactions subject 
to Sec.  1026.19(f) by requiring creditors to disclose the ``annual 
percentage rate'' and the abbreviation ``APR,'' together with the 
following statement: ``Your costs over the loan term expressed as a 
rate. This is not your interest rate.'' The Bureau also proposed to 
exercise its authority under TILA section 105(a) and (f), Dodd-Frank 
Act section 1032(a), and, for residential mortgage loans, Dodd-Frank 
Act section 1405(b) to except the annual percentage rate from the 
conspicuous disclosure requirement under TILA section 122(a), for 
transactions subject to proposed Sec.  1026.19(f).
Comments
    In response to the proposal, the Bureau received several comments 
arguing that the Bureau should eliminate the APR from the Closing 
Disclosure since it is confusing, of little value to consumers, and 
because consumers do not understand it. These commenters contended that 
the Bureau's own research has found that the APR is confusing to 
consumers, and requires clarification through accompanying narrative. 
As discussed in the section-by-section analysis of Sec.  1026.37(l)(2), 
an industry trade association commenter, a consumer advocacy group 
commenter, and a law firm commenter argued that the Bureau should use 
its authority under TILA sections 105(a) and (f) to exempt all 
residential mortgage loans from the disclosure requirements of the APR.
    A trade association commenter argued that, in the credit card 
context, the

[[Page 80041]]

Board's 2009 credit card rulemaking eliminated the all-in APR for 
credit card statements after its quantitative consumer testing found 
that most consumers did not understand the all-in APR and that for 
some, it distracted from the effectiveness of other disclosures.
    A GSE, an industry commenter, and a consumer advocacy group 
commenter suggested that the Bureau formulate a better explanation of 
the APR than the one proposed, as a clearer one will help consumers 
understand that APR is not just the interest rate but also the related 
cost of credit since creditors consistently fail to understand and 
correctly explain the difference between the interest rate and the APR. 
One consumer advocacy commenter argued that the APR is not useful for 
an adjustable rate loan, and several industry commenters suggested that 
the Bureau provide additional clarity in terms of how to calculate the 
APR for adjustable rate mortgage loans. An industry commenter sought 
clarification as to whether hard-coded text is required for this 
disclosure or if the text can change, and if the latter, sought 
acceptable verbiage that could be used.
    Several industry trade association commenters favored the inclusion 
of the APR and disfavored making any changes to how this disclosure is 
calculated. A consumer commenter supported the APR disclosure but 
suggested disclosing it as two separate items, as with credit cards: 
(1) APR; and (2) all other fees. One industry commenter suggested that 
the finance charges used to calculate the APR should be disclosed 
appropriately to help consumers understand what charges are included in 
the APR. An industry commenter argued that the APR disclosure should 
include analysis of the cost-recovery period so that consumers could 
see that a lower APR is going to save them money over the long term. An 
industry commenter disfavored the placement of the APR disclosure on 
page 5 of the Closing Disclosure, and recommended that the Bureau 
provide a descriptive reminder about what the interest rate is in order 
to reduce consumer confusion.
Final Rule
    For the reasons discussed below, the Bureau is adopting Sec.  
1026.38(o)(4) as proposed. The Bureau notes that the APR is a long-
standing measure designed to provide consumers a way of measuring the 
total cost of credit and comparing loan products. As discussed above in 
the section-by-section analysis of Sec.  1026.37(l)(2), consumer 
testing conducted by the Board and the Bureau, and comments received by 
the Bureau, consistently indicate consumer confusion over the APR. When 
the Bureau added the statement ``this is not your interest rate'' to 
the descriptive explanation of the APR during its consumer testing, 
although confusion was reduced, participants still did not understand 
how to use the APR. Instead, participants used measures they readily 
understood, such as the maximum interest rates, maximum periodic 
payments, and closing cost details to evaluate, compare, and verify 
loan terms. Participants were able to use these measures to evaluate 
and compare loans, making sophisticated trade-offs, often based on 
rationales involving their personal circumstances. See Kleimann Testing 
Report at 303-304.
    In light of these comments concerning consumer confusion over the 
APR and the fact that consumers do not appear to use the APR in 
comparing loan offers, the Bureau is exercising its authority under 
TILA section 105(a) and (f), Dodd-Frank Act section 1032(a) and, for 
residential mortgage loans, Dodd-Frank Act section 1405(b), to except 
transactions subject to Sec.  1026.19(e) from the requirement of TILA 
section 122(a) that the annual percentage rate disclosure be more 
conspicuous than other disclosures, except the disclosure of the 
creditor's identity. The Bureau believes that the exemption will 
enhance consumer understanding by separating the APR disclosure from 
the interest rate disclosure, which could prevent consumer confusion 
over the two rates and reduce the possibility of information overload 
for consumers attempting to compare loan terms, consistent with the 
purposes of TILA. In addition, the purpose of the integrated disclosure 
under TILA section 105(b) and RESPA section 4(a) is to ``aid the 
borrower . . . in understanding the transaction by utilizing readily 
understandable language to simplify the technical nature of the 
disclosures.'' The Bureau believes that placing measures that are 
readily understandable to consumers on the first page of the Closing 
Disclosure, and complex measures that consumers find confusing on 
latter pages, meets this statutory objective.
    The Bureau also has considered the factors in TILA section 105(f) 
and has determined that an exception is appropriate under that 
provision. Specifically, the Bureau has determined that the exemption 
is appropriate for all affected borrowers, regardless of their other 
financial arrangements and financial sophistication and the importance 
of the loan to them. Similarly, the Bureau has determined that the 
exemption is appropriate for all affected loans, regardless of the 
amount of the loan and whether the loan is secured by the principal 
residence of the consumer. Furthermore, the Bureau has determined that, 
on balance, the exemption will simplify the credit process without 
undermining the goal of consumer protection or denying important 
benefits to consumers. As discussed above in part II.D and in the 
section-by-section analysis of Sec.  1026.37(l)(2), consumer testing 
and historical research indicate that consumers do not understand the 
APR and do not use it when shopping for a loan. Highlighting the APR on 
the disclosure form contributes to overall consumer confusion and 
information overload, complicates the mortgage lending process, and 
hinders consumers' ability to understand important loan terms. As such, 
the Bureau has determined that an exemption from the requirement that 
the APR be disclosed more conspicuously than other disclosures will not 
undermine the goal of consumer protection but, instead, will improve 
consumer understanding of the loans. For all these reasons, the Bureau 
has determined that the APR disclosure will improve consumer awareness 
and understanding of residential mortgage loans and is in the interest 
of consumers and the public, consistent with Dodd-Frank Act section 
1405(b), and that, consistent with section 1032(a) of the Dodd-Frank 
Act, the disclosure would ensure that the features of consumer credit 
transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances.
    As discussed in the section-by-section analysis of Sec.  
1026.37(l)(2), in response to the Bureau's Small Business Review Panel 
Outline and in comments on the proposal, some consumer advocacy groups 
expressed concern about disclosing the APR on the final page of the 
Loan Estimate and Closing Disclosure and suggested that the APR should 
be more prominently displayed on the disclosures. Specifically, this 
feedback stated that the APR is a widely recognized disclosure that is 
a useful tool for consumers in comparing and understanding mortgage 
loans, and that deemphasizing the APR is not the most effective way of 
dealing with known problems with the APR disclosure. Instead, these 
groups suggested that the APR disclosure could be improved through an 
expanded definition of the

[[Page 80042]]

finance charge, better descriptive language of the APR, or by 
supplementing the APR with other disclosures. The Bureau has considered 
this feedback, but for the reasons discussed above, believes that the 
approach to the APR adopted in the final rule could provide important 
benefits to consumers by emphasizing the difference between the APR and 
the contract interest rate and by deemphasizing historically confusing 
disclosures that contribute to information overload, and that other 
possible approaches to improving the APR would be less effective at 
improving the disclosure. The Bureau also intends to develop 
supplemental educational materials in booklets and its Web site that 
will further explain how the APR differs from the interest rate, how it 
provides a good way of comparing the entire costs of the loan over the 
entire term, and why consumers may want to use the APR figures to think 
about their financial futures.
    As discussed above, several commenters were confused about how to 
calculate the APR for adjustable rate mortgage loans. A consumer 
advocacy group commenter suggested disclosing the APR as two separate 
items, similar to what is done for credit cards: (1) APR; and (2) all 
other fees. Several commenters suggested that the Bureau formulate a 
better explanation of the APR than the one proposed. At least one 
industry participant in the Bureau's consumer testing of the prototype 
disclosures suggested that the form show the calculation for the APR. 
The Bureau notes, however, that TILA section 128(a)(4) and (8) requires 
creditors to disclose the APR, together with a brief descriptive 
statement of the APR, and the Dodd-Frank Act did not change the 
calculation of APR for integrated disclosures. The Bureau did not 
propose to change the calculation of APR, and notes that the 
calculation of APR is set forth in Appendix J to Regulation Z. For 
additional guidance regarding the calculation of APR for closed-end 
transactions, see the commentary to Sec.  1026.17, as amended by this 
final rule. The Bureau is amending comment 17(c)(1)-10.ii to clarify 
that the effect of multiple rates must be reflected in certain of the 
disclosures required under Sec. Sec.  1023.37(l) and 1026.38(o), but 
the Bureau notes that this does not change the underlying methodology 
for calculating the APR.
38(o)(5) Total Interest Percentage
    As discussed in the section-by-section analysis of Sec.  
1026.37(l)(3), section 1419 of the Dodd-Frank Act amended TILA to add 
new section 128(a)(19), which requires that, in the case of a 
residential mortgage loan, the creditor disclose the total amount of 
interest that the consumer will pay over the life of the loan as a 
percentage of the principal of the loan. 15 U.S.C. 1638(a)(19). TILA 
section 128(a)(19) also requires that the amount be computed assuming 
the consumer makes each monthly payment in full and on time, and does 
not make any overpayments.
The Bureau's Proposal
    Pursuant to the Bureau's implementation authority under TILA 
section 105(a), proposed Sec.  1026.38(o)(5) would have implemented 
this new statutory requirement by requiring creditors to disclose the 
``total interest percentage,'' using that term and the abbreviation 
``TIP.'' For guidance on disclosure and calculation of the total 
interest percentage on the Closing Disclosure, proposed comment 
38(o)(5)-1 would have referred creditors to the requirement to disclose 
the total interest percentage on the Loan Estimate, found in Sec.  
1026.37(l)(3) and its commentary. In addition, for the reasons 
discussed in the section-by-section analysis of Sec.  1026.37(l)(3), 
the Bureau proposed to exercise its authority under TILA section 
105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage 
loans, Dodd-Frank Act section 1405(b) to require creditors to disclose 
the following descriptive statement of the total interest percentage: 
``This rate is the total amount of interest that you will pay over the 
loan term as a percentage of your loan amount.'' The Bureau 
alternatively proposed to use its authority under TILA section 105(a) 
and (f) and Dodd-Frank Act sections 1032(a) and 1405(b) to remove the 
total interest percentage from the Closing Disclosure required by 
proposed Sec.  1026.19(f). The Bureau solicited comment on the proposed 
exemption.
Comments
    In response to the proposal, as discussed above in the section-by-
section analysis of Sec.  1026.37(l)(3), industry commenters generally 
urged the Bureau to use its exception authority to remove the 
disclosure. They generally asserted that the disclosure would not be 
useful to consumers, that consumers would be confused by it, and that 
the disclosure would trigger information overload. For these same 
reasons, some commenters suggested that the Bureau should only require 
the disclosure in the Closing Disclosure. A number of commenters 
additionally asserted that the disclosure would alarm consumers when 
they see how much they would be paying in interest. Industry commenters 
further asserted that the disclosure would create compliance burden 
because it would be difficult to calculate and explain. Consumer 
advocacy group commenters expressed concerns that the disclosure could 
potentially mislead consumers about the cost of credit because the 
calculation would not include closing costs or prepaid finance charges. 
Several industry trade association commenters recommended that the 
Bureau provide additional clarification as to the calculation and 
meaning of the Total Interest Percentage disclosure if the Bureau 
decides to keep the disclosure. An industry commenter sought 
clarification as to whether hard-coded text is required for this 
disclosure or if the text can change, and if the latter, sought 
acceptable verbiage that could be used.
    A number of industry commenters observed that the disclosure would 
be inaccurate for any loan paid off before maturity and for adjustable 
rate mortgage loans. They expressed concern that consumers could be 
misled by a potentially inaccurate metric. Several industry trade 
association commenters sought clarification as to whether the 
calculation of this disclosure would use the actual initial interest 
rate or the fully-indexed rate, and that it does not assume that 
payments increase as fast as possible.
    Many industry commenters also argued that if the Bureau decides to 
finalize the disclosure, disclosing the total interest amount in the 
form of a number rather than as a percentage would be more 
comprehensible. On the other hand, a number of industry commenters 
suggested that disclosing a number for the total interest amount is 
unnecessary because of the Finance Charge disclosure in the Closing 
Disclosure.
    A consumer advocacy group commenter strongly favored the Total 
Interest Percentage disclosure and some industry commenters did not 
object to its inclusion. Several associations of various State 
financial regulators and a joint letter from several consumer advocacy 
groups did not recommend that the Bureau remove the disclosure, but 
expressed concern that the disclosure could mislead consumers about the 
cost of credit because the calculation would not include closing costs 
or prepaid finance charges.
    Lastly, a national trade association representing developers of 
timeshare and other similar fractional interest real estate products 
stated that the Bureau should clarify that the proposed disclosure 
would not apply to timeshare lenders. The trade association

[[Page 80043]]

commenter asserted that it believes that TILA section 103(cc)(5), as 
added by section 1401 of the Dodd-Frank Act, exempted timeshare lenders 
from compliance with, among other things, TILA section 128(a)(19) and 
any regulations promulgated thereunder.
Final Rule
    For the reasons discussed below, the Bureau is adopting Sec.  
1026.38(o)(5) and comment 38(o)(5)-1 as proposed. As discussed above in 
the section-by-section analysis of Sec.  1026.37(l)(3), the Bureau's 
testing indicated that consumer participants generally understood the 
basic concept of the disclosure, even though they did not understand 
its more technical aspects. Although some consumers did not understand 
the disclosure at all and questioned why it was included, the Kleimann 
Testing Report concluded that participants understood the basic concept 
of total interest as a percentage of principal, and that most 
participants used the disclosure to achieve a more complete 
understanding of the loan. See Kleimann Testing Report at 299-300. As 
discussed above, a number of industry commenters suggested that 
disclosing a number for the total interest amount is unnecessary 
because of the Finance Charge disclosure in the Closing Disclosure. 
However, the Kleimann Testing Report stated that participants used the 
TIP as a measure of what they would pay in interest in the Closing 
Disclosure. The Kleimann Testing Report further indicated that 
participants expressed surprise at how much they would pay in interest 
on their mortgage loans and appreciated the disclosure for this reason. 
See Kleimann Testing Report at 299-300. Concerns were also raised 
during the Bureau's Small Business Review Panel, by industry in 
feedback provided in response to the Small Business Review Panel 
Outline, in feedback received through the Bureau's Web site, and in 
comments that the total interest percentage could be difficult to 
calculate and explain to consumers, and would not likely be helpful to 
consumers. However, several industry participants in the testing 
process thought it would be helpful to consumers.
    In light of the Bureau's testing of the total interest percentage 
disclosure and the concerns about consumers' ability to understand the 
disclosure, the Bureau is requiring creditors to disclose the 
descriptive statement, ``The total amount of interest that you will pay 
over the loan term as a percentage of your loan amount.'' The Bureau 
adopts this requirement pursuant to its authority under TILA section 
105(a), Dodd-Frank Act section 1032(a), and, for residential mortgage 
loans, Dodd-Frank Act section 1405(b). Based on consumer testing, the 
Bureau believes that consumer understanding of the total interest 
percentage disclosure may be enhanced through the descriptive statement 
of the total interest percentage, consistent with the purposes of TILA, 
and that the descriptive statement is in the interest of consumers and 
the public, consistent with section 1405(b) of the Dodd-Frank Act. For 
these reasons, the Bureau also believes that the disclosure of the 
descriptive statement regarding the total interest percentage may 
ensure that the features of consumer credit transactions secured by 
real property are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to understand the costs, 
benefits, and risks associated with the product or service, in light of 
the facts and circumstances, consistent with section 1032(a) of the 
Dodd-Frank Act.
    With respect to the argument that the disclosure should not apply 
to timeshare lenders, the general section-by-section analysis of Sec.  
1026.19 provides a more detailed discussion of the Bureau's decision to 
expand the scope of some of the disclosure requirements set forth in 
TILA, as amended by the Dodd Frank Act. In addition, the Bureau 
believes that the disclosure of the total interest percentage would be 
just as useful to a consumer in a credit transaction secured by a 
consumer's interest in a timeshare plan as to a consumer in a credit 
transaction secured by an interest in real property or real property 
with a dwelling.
    Accordingly, the Bureau has decided that the total interest 
percentage is a useful tool for consumers and is not adopting the 
proposed alternative of exempting transactions subject to Sec.  
1026.19(e) and (f) from the requirements of TILA section 128(a)(19). 
Based on these considerations, the results of the Bureau's consumer 
testing, and the analysis discussed elsewhere in this final rule, the 
Bureau believes that the proposed exemption is not appropriate.
    For purposes of Sec.  1026.38(o)(5), comment 38(o)(5)-1 requires 
that the creditor compute the total interest percentage in accordance 
with Sec.  1026.37(l)(3) and its commentary. The calculation for the 
TIP is specifically set forth in TILA section 128(a)(19) and requires 
that the calculation be based on the assumption that the consumer makes 
each monthly payment in full and on-time, and does not make any over-
payment. As discussed above, in response to the comments received, the 
Bureau is adopting comment 37(l)(3)-2 to provide further guidance to 
creditors on calculation of the total interest percentage for 
adjustable rate mortgage loans. In particular, when creditors use an 
initial interest rate that is not calculated using the index or formula 
for later rate adjustments, the disclosure should reflect a composite 
annual percentage rate based on the initial rate for as long as it is 
charged and, for the remainder of the term, the rate that would have 
been applied using the index or formula at the time of consummation. 
The Bureau is also adopting comment 17(c)(1)-10.ii to clarify that the 
effect of the multiple rates must be reflected in the calculation of 
certain disclosures, including the total interest percentage.
38(o)(6) Approximate Cost of Funds
The Bureau's Proposal
    The Dodd-Frank Act amended TILA to add new section 128(a)(17). 15 
U.S.C. 1638(a)(17). Among other things, that section requires creditors 
to disclose, in the case of residential mortgage loans, ``the 
approximate amount of the wholesale rate of funds in connection with 
the loan.'' In light of several uncertainties and interpretive 
challenges in TILA section 128(a)(17), the Bureau proposed to interpret 
the ``wholesale rate of funds'' to mean the actual cost of borrowing 
funds for use in mortgage lending. The Bureau solicited comment on both 
``lender cost of funds'' and ``average cost of funds'' pursuant to its 
authority under TILA section 105(a), Dodd-Frank Act section 1032(a), 
and, for residential mortgage loans, Dodd-Frank Act section 1405(b). 
Proposed Sec.  1026.38(o)(6) would have required creditors to disclose 
the ``approximate cost of funds,'' using that term and the abbreviation 
``ACF'' and expressed as a percentage, and the statement ``The 
approximate cost of funds used to make this loan. This is not a direct 
cost to you.'' For purposes of proposed Sec.  1026.38(o)(6), 
``approximate cost of funds'' would have meant either the most recent 
ten-year Treasury constant maturity rate or the creditor's actual cost 
of borrowing the funds used to extend the credit, at the creditor's 
option. The Bureau solicited comment on whether another index, such as 
the London Interbank Offer Rate (LIBOR), would have been a more 
appropriate measure of the approximate cost of funds. The Bureau also 
solicited comment on what would be required for creditors to disclose 
their actual costs of funds. Since consumer testing conducted by

[[Page 80044]]

the Bureau suggests that consumers do not understand the disclosure and 
that it does not provide a meaningful benefit to consumers, the Bureau 
alternatively proposed to use its exception and modification authority 
under TILA section 105(a) and (f), Dodd-Frank Act section 1032(a), and, 
for residential mortgage loans, Dodd-Frank Act section 1405(b) to 
exempt transactions subject to proposed Sec.  1026.19(e) and (f) from 
the cost of funds disclosure requirement in TILA section 128(a)(17). 
The Bureau solicited comment on this proposed exemption.
Comments
    Similar to the Total Interest Percentage disclosure discussed 
above, industry commenters generally urged the Bureau to use its 
exception authority to remove the Approximate Cost of Funds disclosure 
because they argued that the disclosure would not be useful to 
consumers and would generate confusion, trigger information overload, 
and create compliance burden because it would be burdensome to 
calculate and explain. Industry commenters questioned the disclosure's 
usefulness in helping consumers understand the cost of credit because 
the creditor's cost of funds is not a direct cost to consumers. They 
also argued that a creditor's cost of funds is a misleading measurement 
of a creditor's actual cost of funding mortgage loans. Commenters 
suggested that getting to the true cost of loans is akin to getting to 
the cost to a creditor of doing business, which would not only include 
the creditors' cost of borrowing money to fund loans, but also, for 
example, overhead expenses. Commenters also expressed concern that the 
disclosure would be viewed negatively by consumers.
    A few commenters expressed concern over disclosing a metric that 
could provide sensitive business information to competitors. Three 
national trade associations representing banks and nonbank residential 
mortgage loan lenders predicted that it would be unlikely that 
creditors would choose to disclose their actual cost of funds if given 
the option to provide a publicly-available index. They also expressed 
concern about the proposed requirement that the Treasury rate disclosed 
must be the ``most recent'' rate, because the rate changes daily. They 
urged the Bureau to provide a value established within the last 60 
days, because, as proposed, it would be impossible to provide an 
accurate disclosure three business days before closing.
    Several industry commenters also argued that this disclosure could 
impose significant compliance burden because the cost of funds varies 
from creditor to creditor, and is only one of many factors impacting a 
particular loan's interest rate. Some industry commenters also argued 
that this disclosure would be very difficult for creditors to calculate 
without significant additional guidance from the Bureau, especially 
since this disclosure is dependent on the ways in which loans are 
originated, sold, or held.
    Trade associations representing various State regulators also 
expressed concern that the disclosure could mislead consumers about the 
cost of credit and urged the Bureau to provide a more thorough 
explanation of the Approximate Cost of Funds disclosure. An industry 
commenter sought clarification as to whether hard-coded text is 
required for this disclosure or if the text can change, and if the 
latter, sought acceptable verbiage that could be used.
    Lastly, a national trade association representing developers of 
timeshare and other similar fractional interest real estate products 
stated that the Bureau should clarify that the proposed disclosure 
would not apply to timeshare lenders. The trade association commenter 
asserted that it believes that TILA section 103(cc)(5), as added by 
section 1401 of the Dodd-Frank Act, exempted timeshare lenders from 
compliance with, among other things, TILA section 128(a)(17) and any 
regulations promulgated thereunder.
Final Rule
    For the reasons discussed below, the Bureau has decided to use its 
exception and modification authority under TILA section 105(a) and (f), 
Dodd-Frank Act section 1032(a), and, for residential mortgage loans, 
Dodd-Frank Act section 1405(b) to exempt transactions subject to 
proposed Sec.  1026.19(e) and (f) from the cost of funds disclosure 
requirement in TILA section 128(a)(17). Accordingly, the Bureau is not 
adopting Sec.  1026.38(o)(6).
    Consumer testing conducted by the Bureau suggests that consumers do 
not understand the disclosure and that it does not provide a meaningful 
benefit to consumers. As stated in the report on the Bureau's consumer 
testing conducted prior to issuance of the proposal, the disclosure 
generally raised more questions than it answered, and most participants 
suggested removing it. See Kleimann Testing Report at 301-303. Most 
consumer participants stated that because the disclosure did not 
disclose a direct cost to them, it was not important to them. As 
discussed in the Kleimann Testing Report, the Bureau conducted consumer 
testing using the terms ``lender cost of funds,'' ``average cost of 
funds,'' and ``approximate cost of funds,'' along with descriptive 
statements of these terms. See Kleimann Testing Report at 297, n. 36. 
Even though several different approaches were used during the testing 
process to present the Approximate Cost of Funds disclosure, throughout 
five rounds of consumer testing, only one consumer showed any interest 
in the disclosure, stating that it was ``interesting.'' All other 
consumers were either confused by the disclosure or did not find it 
useful. In all cases, experienced and non-experienced consumers that 
participated in the Bureau's consumer testing of the cost of funds 
disclosure questioned the disclosure and were generally unable to 
articulate how to use the information. While participants were able to 
read that the Approximate Cost of Funds was not a direct cost to them, 
they questioned why it was being disclosed if it was not a cost to them 
and/or wanted to know who was paying it. The Bureau's consumer testing 
results suggest that the disclosure is unlikely to provide a meaningful 
benefit to consumers in the form of useful information, and that 
consumers are likely to be confused by the Approximate Cost of Funds 
disclosure and are unlikely to use it when evaluating loans, which 
lends support to commenters' concerns about the disclosure confusing 
consumers and triggering information overload. Industry participants 
also believed that consumers would be confused by the cost of funds 
disclosure. Even some industry participants at the Bureau's consumer 
testing were confused by the disclosure. See Kleimann Testing Report at 
301-303. The Bureau's consumer testing results further support industry 
commenters' concerns about consumers reacting negatively to the 
disclosure as some consumers expressed feeling threatened or other 
negative reactions after reading the disclosure. See Kleimann Testing 
Report at 302. Accordingly, the Bureau believes that the Approximate 
Cost of Funds disclosure would not provide consumer protection 
benefits, and that this disclosure could harm consumer understanding 
and risk information overload.
    The Bureau also believes this approach will simplify the disclosure 
forms and reduce compliance burden. Based on concerns raised by the 
Small Business Review Panel, industry feedback provided in response to 
the Bureau's Small Business Review Panel Outline, feedback provided 
through the Bureau's Web site in the Know Before

[[Page 80045]]

You Owe initiative, and in comments received, the Bureau believes that 
the disclosure may be very burdensome for creditors to calculate and 
explain, and may result in the disclosure of potentially sensitive 
business information. Creditors may have different costs of funds for 
different loan products. For example, a creditor may have one cost of 
funds for a 30-year fixed loan, but a different cost of funds for a 3/1 
adjustable rate mortgage loan. There could be significant 
administrative burden and compliance risk if the creditor were required 
to track the various cost of funds for all the loan products it offers. 
Additional training would also likely be required so that a creditor 
could make sure its staff could explain the disclosure to consumers. 
Further, if creditors are permitted to disclose a publicly-available 
index that does not reflect their actual cost of funds, the disclosure 
would be misleading instead of being protective of consumer interests. 
In light of testing results that suggest that the Approximate Cost of 
Funds disclosure would not be useful to consumers, the Bureau does not 
believe that these significant compliance burdens are counterbalanced 
by the consumer benefit of the disclosure.
    As discussed above, some industry commenters urged that, if the 
Bureau decided to retain this disclosure, various modifications be made 
to the rate requirements and that the Bureau provide additional 
explanation and guidance for how to calculate this disclosure, 
including whether hard-coded text is required or if the text can 
change. A national trade association representing developers of 
timeshare and other similar fractional interest real estate products 
stated that the Bureau should clarify that the proposed disclosure 
would not apply to timeshare lenders. As the Bureau has decided not to 
adopt Sec.  1026.38(o)(6), the issues addressed in these and similar 
comments are moot.
    The Bureau believes the exemption will carry out the purposes of 
TILA, consistent with TILA section 105(a), by avoiding consumer 
confusion and information overload, thereby promoting the informed use 
of credit. For these same reasons, the exemption will help ensure that 
the features of the transaction are fully, accurately, and effectively 
disclosed to consumers in a manner that permits consumers to better 
understand the costs, benefits, and risks associated with the mortgage 
transaction, in light of the facts and circumstances, consistent with 
Dodd-Frank Act section 1032(a), and will improve consumer awareness and 
understanding of residential mortgage loans, which is in the interest 
of consumers and the public, consistent with Dodd-Frank Act section 
1405(b). Finally, the Bureau has considered the factors in TILA section 
105(f) and has determined that, for the reasons discussed above, an 
exception is appropriate under that provision. Specifically, the Bureau 
has determined that the exemption is appropriate for all affected 
borrowers, regardless of their other financial arrangements and 
financial sophistication and the importance of the loan to them. 
Similarly, the Bureau has determined that the exemption is appropriate 
for all affected loans, regardless of the amount of the loan and 
whether the loan is secured by the principal residence of the consumer. 
Furthermore, the Bureau has determined that, on balance, the exemption 
will simplify the credit process without undermining the goal of 
consumer protection or denying important benefits to consumers. Based 
on these considerations, the results of the Bureau's consumer testing, 
and the analysis discussed elsewhere in this final rule, the Bureau has 
determined that an exemption is appropriate.
38(p) Other Disclosures
    As discussed below, proposed Sec.  1026.38(p) would have 
implemented statutory provisions requiring creditors to disclose 
information regarding appraisals, contract details, liability after 
foreclosure, refinancing, and tax deductions. These disclosures would 
have been provided under the heading ``Other Disclosures.''
38(p)(1) Appraisal
    As noted above in the section-by-section analysis of Sec.  
1026.37(m)(1), the Dodd-Frank Act amended ECOA to require creditors to 
provide consumers with a copy of any written appraisal conducted for a 
loan that is or will be secured by a first lien on a dwelling, and also 
added a requirement that creditors disclose that right to consumers at 
the time of application. ECOA section 701(e); 15 U.S.C. 1691(e). In 
addition, the Dodd-Frank Act amended TILA to require creditors to 
provide consumers with an appraisal copy at least three days prior to 
consummation of certain ``higher-risk'' mortgages. TILA section 
129H(c)-(d); 15 U.S.C. 1639h(c)-(d). As discussed above, these 
provisions were implemented in separate Bureau and joint interagency 
rulemakings, respectively. The Bureau also proposed appraisal 
disclosures similar to those required by the statutes to be included on 
the Loan Estimate in transactions subject to either ECOA section 701(e) 
or TILA section 129H, as implemented in Regulations B and Z, 
respectively, pursuant to its authority under TILA section 105(a) and 
Dodd-Frank Act section 1032(a).
    In the proposal, the Bureau stated its intent to harmonize the 
appraisal notice proposed in Sec.  1026.38(p)(1) with the final rules 
implementing the statutory appraisal disclosure requirements, both of 
which have been issued since the proposal. The Bureau states in the 
proposal that, as proposed, the notice required by Sec.  1026.38(p)(1) 
was consistent with the Bureau's 2013 ECOA Appraisals Rule and the 2013 
Interagency Appraisals Rule. As stated in the proposal, the Bureau 
believed the additional disclosure reminding consumers of their right 
to receive a copy of an appraisal conducted for their loan will promote 
the informed use of credit by consumers, consistent with TILA section 
105(a), and ensure that the features of mortgage transactions are 
fully, accurately, and effectively disclosed to consumers in a manner 
that permits consumers to understand the costs, benefits, and risks 
associated with the loans, in light of the facts and circumstances, 
consistent with Dodd-Frank Act section 1032(a).
    Specifically, the Bureau proposed, pursuant to its authority under 
TILA section 105(a) and Dodd-Frank Act section 1032(a), that creditors 
provide a disclosure regarding the right to receive an appraisal on the 
Closing Disclosure the consumer receives three days prior to 
consummation. Like proposed Sec.  1026.37(m)(1), this disclosure 
requirement would have applied only to transactions subject to either 
ECOA section 701(e) or TILA section 129H, as implemented in Regulations 
B and Z, respectively. Proposed Sec.  1026.38(p)(1)(i) would have 
required the creditor to disclose that, if there was an appraisal of 
the property in connection with the loan, the creditor is required to 
provide the consumer with a copy of such appraisal at no additional 
cost to the consumer at least three days prior to consummation. 
Proposed Sec.  1026.38(p)(1)(ii) would have required the creditor to 
disclose that, if the consumer has not yet received a copy of the 
appraisal, the consumer should contact the creditor using the 
information disclosed pursuant to Sec.  1026.38(r). Proposed Sec.  
1026.38(p)(1) would have required these disclosures to be provided 
under the subheading ``Appraisal.'' Proposed comment 38(p)(1)-1 would 
have provided guidance regarding the applicability of Sec.  
1026.38(p)(1). The comment would have stated that if a transaction is 
not

[[Page 80046]]

subject to either ECOA section 701(e) or TILA section 129H, as 
implemented in Regulations B and Z, respectively, the disclosure 
required by proposed Sec.  1026.38(p)(1) may be omitted from the 
Closing Disclosure. Comments received in relation to the appraisal 
disclosure generally are discussed in the section-by-section analysis 
of Sec.  1026.37(m)(1). The Bureau did not receive any comments 
specifically related to proposed Sec.  1026.38(p)(1) and is adopting it 
as proposed based on the authority stated in the proposal. The Bureau 
is adopting comment 38(p)(1)-1 as revised to delete the reference to 
the disclosures being made as applicable, for the reasons stated in the 
section-by-section analysis of Sec.  1026.37.
38(p)(2) Contract Details
    TILA section 128(a)(12) requires the creditor to provide a 
statement that ``[t]the consumer should refer to the appropriate 
document for any information such document provides about nonpayment, 
default, the right to accelerate the maturity of the debt, and 
prepayment rebates and penalties.'' 15 U.S.C. 1638(a)(12). This 
requirement is currently implemented in Sec.  1026.18(p), which 
requires the creditor to provide a statement that the consumer should 
refer to the appropriate contract document for information pertaining 
to nonpayment, default, the right to accelerate the maturity of the 
loan obligation, and prepayment rebates and penalties. Section 
1026.18(p) also provides the creditor the option to disclose a 
reference to the contract document for information regarding security 
interests and assumption of the legal obligation.
    The Bureau proposed Sec.  1026.38(p)(2) to implement TILA section 
128(a)(12) for transactions subject to Sec.  1026.19(f), pursuant to 
its implementation authority under TILA section 105(a). Like current 
Sec.  1026.18(p), proposed Sec.  1026.38(p)(2) would have required the 
creditor to disclose a statement that the consumer should review the 
loan contract for additional information about loan terms. 
Specifically, under proposed Sec.  1026.38(p)(2), the creditor would 
have been required to state that the consumer should refer to the 
appropriate loan document and security instrument for information about 
nonpayment, what constitutes a default under the legal obligation, 
circumstances under which the creditor may accelerate the maturity of 
the obligation, and the rules for prepayments. Proposed Sec.  
1026.38(p)(2) would have required this information to be disclosed 
under the subheading ``Contract Details.'' The Bureau did not receive 
any comments on proposed Sec.  1026.38(p)(2) and is adopting it as 
proposed based on the authority stated in the proposal.
38(p)(3) Liability After Foreclosure
    As discussed in the section-by-section analysis of proposed Sec.  
1026.37(m)(7), section 1414(c) of the Dodd-Frank Act created new TILA 
section 129C(g), which establishes certain requirements for residential 
mortgage loans subject to protection under a State's anti-deficiency 
law. 15 U.S.C. 1639c(g). TILA section 129C(g)(2) generally requires the 
creditor to provide a written notice to the consumer describing the 
protection provided by the applicable State's anti-deficiency law and 
the significance for the consumer of the loss of such protection. For 
refinance transactions only, TILA section 129C(g)(3) generally requires 
creditors that receive from or provide to the consumer an application 
for refinancing that would cause the loan to lose the protection of an 
anti-deficiency law to provide a written notice to the consumer 
describing the protection provided by the anti-deficiency law and the 
significance for the consumer of the loss of such protection. As 
discussed above, TILA sections 129C(g)(2) and 129C(g)(3) are 
implemented in Sec.  1026.37(m)(7), which is required for refinance 
transactions only.
    Proposed Sec.  1026.38(p)(3) would have implemented the 
requirements of TILA sections 129C(g)(2) and 129C(g)(3) for all 
transactions subject to Sec.  1026.19(f), not limited to refinance 
transactions, pursuant to the Bureau's implementation authority under 
TILA section 105(a). Specifically, under proposed Sec.  1026.38(p)(3), 
if State law may offer consumers protection from liability, the 
creditor would have been required to disclose a brief statement that 
State law may protect the consumer from liability for the unpaid 
balance. The statement also would have been required to advise the 
consumer that any protection afforded under State law may be lost if 
the consumer refinances the loan or incurs additional debt on the 
property and that the consumer should consult an attorney for 
additional information. However, if State law does not protect the 
consumer from liability for the unpaid balance, proposed Sec.  
1026.38(p)(3) would have required the creditor to disclose that fact. 
The information required by proposed Sec.  1026.38(p)(3) would have 
been disclosed under the subheading ``Liability after Foreclosure.'' 
Proposed comment 38(p)(3)-1 would have clarified that whether the 
consumer is afforded protection from liability in a foreclosure varies 
by State and that proposed Sec.  1026.38(p)(3) requires the creditor to 
provide a general description of the applicable State's requirements. 
Proposed comment 38(p)(3)-1 also would have clarified that any type of 
protection afforded by State law, other than a statute of limitations, 
requires a statement that State law may protect the consumer from 
liability for the unpaid balance.
    Several different industry commenters criticized the disclosure 
required by Sec.  1026.38(p)(3) as too simplified to distill the 
complex State law concepts the disclosure is intended to describe. 
Further, the commenters noted that applicable State anti-deficiency 
laws are fact-dependent and may not be accurately described by the two 
``check box'' disclosures shown to illustrate Sec.  1026.38(p)(3) on 
proposed form H-25. These commenters stated that the creditor or 
settlement agent would, in effect, be practicing law by attempting to 
complete the disclosure required by Sec.  1026.38(p)(3). These 
commenters suggested that the proposed disclosure be removed or changed 
so as not to require the creditor to make a choice about the 
applicability of State anti-deficiency laws. In contrast, a document 
preparation company commented that the liability after foreclosure 
disclosure was appropriately high-level to put consumers on notice 
without being misleading. A national trade association representing 
developers of timeshare and other similar fractional interest real 
estate products stated that the Bureau should clarify that the proposed 
disclosure would not apply to timeshare lenders. The trade association 
commenter asserted that it believes that TILA section 103(cc)(5), as 
added by section 1401 of the Dodd-Frank Act, exempted timeshare lenders 
from compliance with, among other things, TILA section 129C(g) and any 
regulations promulgated thereunder.
    As stated in the proposal, pursuant to the Bureau's authority under 
TILA section 105(a), Dodd-Frank Act section 1032(a), and, for 
residential mortgage loans, Dodd-Frank Act section 1405(b), the 
disclosures required by proposed Sec.  1026.38(p)(3) modified the 
statutory requirements that the creditor or loan originator must 
describe the protection provided by the applicable State's anti-
deficiency law, for all transactions subject to proposed Sec.  
1026.19(f). The Bureau believes that the generalized anti-deficiency 
disclosure required by proposed Sec.  1026.38(p)(3) is effective at 
informing consumers about the existence or absence of State anti-
deficiency laws, and that a more detailed State-specific disclosure as

[[Page 80047]]

described in TILA section 129C(g) could be confusing for consumers and 
costly and burdensome to implement. The Bureau does not believe that 
the high-level disclosure required by Sec.  1026.38(p)(3) constitutes 
the practice of law. Instead, as stated in the proposal, the Bureau 
recognizes that significant State law variations exist regarding anti-
deficiency protection and for this reason, Sec.  1026.38(p)(3) requires 
creditors to disclose a statement that consumers should consult a 
lawyer for more information about any applicable anti-deficiency laws, 
as was proposed. With respect to the argument that the disclosure 
should not apply to timeshare lenders, the general section-by-section 
analysis of Sec.  1026.19 provides a more detailed discussion of the 
Bureau's decision to expand the scope of some of the disclosure 
requirements set forth in TILA, as amended by the Dodd-Frank Act. In 
addition, the Bureau believes that the disclosure of the protection 
provided by the relevant anti-deficiency law would be just as useful to 
a consumer in a credit transaction secured by a consumer's interest in 
a timeshare plan as to a consumer in a credit transaction secured by an 
interest in real property or real property with a dwelling.
    One large bank commenter suggested that the Bureau clarify that 
Sec.  1026.38(p)(3) is a safe harbor that would immunize a creditor 
from any State law claims arising out of the use of the disclosure 
language because creditors may have increased exposure to liability by 
using language not precise enough to accurately describe each State's 
anti-deficiency laws. The Bureau has no authority to immunize creditors 
with respect to State law. However, the Bureau is finalizing amendments 
to the rules regarding preemption of inconsistent State disclosure 
requirements and exemptions from State laws, which are discussed under 
the section-by-section analyses of Sec. Sec.  1026.28 and 1026.29 
above. Several trade associations representing mortgage lenders 
requested guidance on whether Sec.  1026.38(p)(3) would require the 
creditor to determine whether the property is in a State that has an 
anti-deficiency law. The Bureau believes that such guidance is 
unnecessary because Sec.  1026.38(p)(3), as finalized and as 
illustrated by form H-25 of appendix H to Regulation Z, clearly 
requires the creditor to determine whether, after a foreclosure that 
does not cover the amount of unpaid balance on the loan, State law may 
protect the consumer from liability for the unpaid balance after 
foreclosure or, alternatively, whether State law does not protect the 
consumer from liability.
    For the aforementioned reasons, the Bureau is adopting Sec.  
1026.38(p)(3) as proposed, based on the authority stated in the 
proposal. The Bureau is adopting comment 38(p)(3)-1 substantially as 
proposed but with minor modifications for clarity. Specifically, the 
Bureau believes the modifications from TILA section 129C(g) will ensure 
that the features of the transaction are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
mortgage transaction, consistent with Dodd-Frank Act section 1032(a), 
and will improve consumer awareness and understanding of residential 
mortgage loans, which is in the interest of consumers and the public, 
consistent with Dodd-Frank Act section 1405(b).
38(p)(4) Refinance
    Proposed Sec.  1026.38(p)(4) would have implemented TILA section 
128(b)(2)(C)(ii) for transactions subject to Sec.  1026.19(f) by 
requiring the creditor to disclose the statement required by proposed 
Sec.  1026.37(m)(5), regarding the consumer's future ability to 
refinance his or her loan. For a detailed discussion of the Bureau's 
implementation of TILA section 128(b)(2)(C)(ii), see the section-by-
section analysis of Sec.  1026.37(m)(5) above. The Bureau did not 
receive any comments specifically on Sec.  1026.38(p)(4) and is 
adopting it as proposed, based on the authority stated in the proposal.
38(p)(5) Tax Deductions
    The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 
(Bankruptcy Act) amended TILA to add new section 128(a)(15), 15 U.S.C. 
1638(a)(15), which requires that, in the case of a consumer credit 
transaction that is secured by the principal dwelling of the consumer 
in which the extension of credit may exceed the fair market value of 
the collateral, the creditor must disclose certain tax implications for 
the consumer. Public Law 109-8, 119 Stat. 23. The Board stated its 
intent to implement the Bankruptcy Act amendments in an advance notice 
of proposed rulemaking published in October 2005 as part of its ongoing 
review of Regulation Z. 70 FR 60235 (Oct. 17, 2005). The issue was 
addressed again in the Board's 2009 Closed-End Proposal, although a 
final rule was not adopted. 74 FR 43232, 43310.
    In the 2009 Closed-End Proposal, the Board proposed to implement 
TILA section 128(a)(15) by requiring creditors to provide the 
disclosure required by TILA section 128(a)(15) for transactions secured 
by a dwelling. 74 FR 43310-11. The proposed rule permitted, but did not 
require, creditors to provide the disclosure in transactions secured by 
real property that does not include a dwelling, even though the statute 
limits the disclosure to transactions secured by the principal dwelling 
of the consumer. Id. The Board reasoned that it would be unnecessarily 
burdensome to require creditors to create separate disclosures for 
transactions secured by real property and those secured by a dwelling 
and proposed that the creditor be permitted, but not required, to 
provide disclosures regarding Federal tax implications for transactions 
secured by real property. Id.
    Proposed Sec.  1026.38(p)(5) would have implemented the 
requirements of TILA section 128(a)(15) for transactions subject to 
proposed Sec.  1026.19(f), including transactions secured by real 
property that does not include a dwelling, pursuant to its authority 
under TILA section 105(a), Dodd-Frank Act section 1032(a), and, for 
residential mortgage loans, Dodd-Frank Act section 1405(b). 
Specifically, for all transactions subject to Sec.  1026.19(f), 
proposed Sec.  1026.38(p)(5) would have required creditors to state 
that, if the consumer borrows more than the value of the property, the 
interest on the loan amount above the market value is not deductible 
from Federal income taxes. Proposed Sec.  1026.38(p)(5) also would have 
required a statement advising the consumer to consult a tax 
professional for additional information. The Bureau stated in the 
proposal that it believed the proposed disclosure would promote the 
informed use of credit in all transactions subject to Sec.  1026.19(f), 
and therefore would be consistent with the purposes of TILA. The 
proposal further stated that the Bureau believed requiring the 
disclosure for all transactions subject to proposed Sec.  1026.19(f), 
whether secured by the consumer's principal dwelling or other real 
property, would facilitate industry compliance by reducing the time and 
resources that would be expended to determine whether a loan 
transaction is subject to the disclosure requirements regarding the 
deductibility of Federal income taxes. In addition, the Bureau stated 
it believed that the proposed disclosure would ensure that the features 
of mortgage transactions are disclosed in manner that ensures that the 
features of the transaction are fully, accurately, and effectively 
disclosed to consumers in a manner that permits consumers to understand 
the cost,

[[Page 80048]]

benefits, and risks associated with the transaction, consistent with 
Dodd-Frank Act section 1032(a) and would improve consumer awareness and 
understanding of residential mortgage loans, which is in the interest 
of consumers and the public, consistent with Dodd-Frank Act section 
1405(b).
    A GSE commented that the proposed tax deduction disclosure is 
overly simplistic, to the consumer's potential detriment. The GSE 
pointed out that a consumer still may not be able to take advantage of 
a tax deduction even if the loan amount is not greater than the value 
of the home if the consumer does not itemize deductions on his or her 
federal tax return. Instead, the GSE suggested the Bureau adopt more 
general language to state that mortgage interest payments may be 
deductible and to consult a tax expert for details. The information 
required to be included in the tax deduction disclosure, specifically, 
that the interest on the portion of the credit extension that is 
greater than the fair market value of the dwelling is not tax 
deductible for Federal income tax purposes, is set forth in TILA 
section 128(a)(15). Moreover, the Bureau does not believe that the 
disclosure could be detrimental to consumers. On the contrary, the 
disclosure illustrated by proposed form H-25 of appendix H to 
Regulation Z advises the consumer to consult a tax advisor for more 
information, which the Bureau believes may alert consumers to the fact 
that additional tax information may be obtained from other sources and 
activate consumers to seek such advice. Accordingly, the Bureau is 
adopting Sec.  1026.38(p)(5) as proposed, based on the authority stated 
in the proposal.
38(q) Questions Notice
    Proposed Sec.  1026.38(q) would have required the creditor to 
provide a statement that the consumer should contact the creditor with 
any questions about the disclosures required under Sec.  1026.19(f), a 
reference to the Bureau's Web site to obtain more information or to 
make a complaint, and a prominent question mark. Although this notice 
is not currently expressly required by TILA, RESPA, or their 
implementing regulations, the Bureau proposed to require that the 
Closing Disclosure contain such a notice based on its authority under 
TILA section 105(a), RESPA section 19(a), and Dodd-Frank Act section 
1032(a). The Bureau stated in the proposal that it believed this 
disclosure would effectuate the purposes of TILA and RESPA by 
facilitating the informed use of credit and ensuring that consumers are 
provided with greater and timelier information on the costs of the 
closing process, and would also ensure that the features of the 
transaction are fully, accurately, and effectively disclosed to 
consumers in a manner that permits consumers to better understand the 
costs, benefits, and risks associated with the transaction in light of 
the facts and circumstances, consistent with Dodd-Frank Act section 
1032(a).
    The Bureau stated in the proposal that requiring disclosure of this 
notice would complement proposed Sec.  1026.19(f)(1)(ii), which 
requires delivery of the Closing Disclosure three business days prior 
to consummation. The proposal noted that TILA section 128(b)(2)(D) 
requires that a corrected TILA disclosure be received by the consumer 
three business days prior to consummation if the APR as initially 
disclosed becomes inaccurate, and stated that the Bureau understands 
that because of the high frequency of annual percentage rate changes 
triggering the corrected TILA disclosure obligation, many creditors 
currently provide the corrected TILA disclosure as a matter of course 
even if it is not required. The proposal also noted that RESPA section 
4 requires that the RESPA settlement statement be provided ``at or 
before closing,'' however, and stated that the Bureau understands that 
it is typically given at closing. Section 1026.19(f)(1)(ii) reconciles 
the two provisions by requiring that consumers be given all of the 
RESPA- and TILA-mandated disclosures three business days prior to 
consummation. The Bureau stated that it expected that during this 
three-business-day period, the consumer would be able to review the 
Closing Disclosure, contact the creditor with questions regarding the 
information contained on the Closing Disclosure, and correct any errors 
prior to consummation.
    Under proposed Sec.  1026.38(q)(1), the required notice would have 
included a statement directing the consumer to contact the creditor 
with any questions about the disclosures required under Sec.  
1026.19(f). The Bureau stated its belief in the proposal that the 
notice required under proposed Sec.  1026.38(q) should in all cases 
reference the creditor, rather than the closing agent, even if the 
closing agent provides the disclosures required under Sec.  1026.19(f) 
because the creditor is better positioned to answer the consumer's 
questions relating to the disclosures. The Bureau sought comment, 
however, on whether the notice required under proposed Sec.  1026.38(q) 
should include a statement directing the consumer to contact the 
creditor or the closing agent with questions. Proposed Sec.  
1026.38(q)(2) would have required the questions notice also to direct 
the consumer to the Bureau's Web site to obtain more information or 
make a compliant. The Bureau stated in the proposal that it plans for 
the Bureau's Web site to offer important information and useful tools 
that consumers can access at key points in the mortgage origination 
process, including during the three-business-day period between the 
consumer's receipt of the Closing Disclosure and consummation. The 
proposal stated that directing consumers to this Web site would 
therefore promote consumer understanding of credit terms and closing 
costs and of benefits and risks associated with the transaction in 
light of the facts and circumstances.
    Proposed Sec.  1026.38(q)(3) also would have included a prominent 
question mark in the disclosure. The Bureau also proposed comment 
38(q)(3)-1, which would have clarified that the prominent question mark 
was an aspect of the proposed Closing Disclosure form H-25 of appendix 
H to Regulation Z, the standard form or model form. The comment would 
have provided further guidance regarding the graphic depiction of the 
prominent question mark. The comment would have clarified that if the 
creditor or closing agent deviates from the depiction of the question 
mark as shown on form H-25, the creditor or closing agent complies with 
Sec.  1026.38(q) if the size and location of the question mark on the 
Closing Disclosure are substantially similar in size and location to 
the question mark shown on form H-25, and the creditor or closing agent 
otherwise complies with Sec.  1026.38(t)(5) regarding permissible 
changes to the form of the Closing Disclosure. The Bureau noted in the 
proposal that consumer testing conducted by the Bureau indicated that 
use of the prominent question mark icon in the questions notice drew 
consumers' attention to the notice.
    A large bank commented that the notice should direct the consumer 
to the creditor or the settlement agent, depending on the type of 
question. The commenter suggested that the language be revised to state 
that the borrower should contact the creditor to resolve issues 
regarding loan terms and the settlement agent with respect to closing 
costs. The commenter stated that directing questions to both the 
settlement agent and the creditor would permit those parties to work 
together to amicably resolve issues before a consumer submitted a 
complaint. Similarly, a national title company commented that the 
disclosure should direct consumers to both the creditor and the 
settlement agent because where

[[Page 80049]]

a settlement agent prepares the form and handles a closing, the 
settlement agent would likely receive most of the consumers' questions. 
The commenter suggested that the disclosure should identify both the 
settlement agent and the creditor and explain the nature of their 
knowledge.
    The Bureau is persuaded that directing questions solely to the 
creditor would not be in the best interests of consumers because there 
are many types of questions for which the creditor is not in the best 
position to answer, such as questions related to the payment of a 
prorated real estate tax or other settlement costs. The Bureau does not 
believe, however, that a disclosure directing consumers to a settlement 
agent for certain types of questions and to the creditor for other 
types of questions is in the best interest of consumers given the 
multitude of reasons that a consumer may have questions about a loan 
transaction. Accordingly, the Bureau is revising Sec.  1026.38(q)(1) to 
require a statement that if the consumer has any questions, he or she 
should use the contact information disclosed under Sec.  1026.38(r). 
The Bureau believes that directing a consumer to all of the 
professionals involved in the transaction--the lender, the mortgage 
broker, the real estate brokers, and the settlement agent--will make it 
more likely that the consumer will find the most appropriate person to 
answer his or her question. Accordingly, consistent with Dodd-Frank Act 
section 1032(a), the revision will ensure that the features of consumer 
credit transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances. The 
revision is also consistent with the purposes of TILA and RESPA, 
because it will promote the informed use of credit by consumers, and 
ensure effective disclosure to consumers.
    For the aforementioned reasons, the Bureau is adopting Sec.  
1026.38(q)(3) as proposed, based on the authority stated in the 
proposal. The Bureau is adopting Sec.  1026.38(q)(1) with a revision to 
require a statement directing the consumer to the information disclosed 
under Sec.  1026.38(r) rather than to the creditor. The Bureau is 
adopting Sec.  1026.38(q)(2) substantially as proposed but with minor 
revisions for clarity, including to state that the uniform resource 
locator address to the Bureau's Web site must be disclosed. The Bureau 
is adopting comment 38(q)(3)-1 substantially as proposed but with a 
minor modification to remove references to the closing agent because 
under Sec.  1026.19(f)(1)(v), a settlement agent is required to comply 
with the relevant requirements of Sec.  1026.19(f) if it provides the 
Closing Disclosure, which would include the requirements of Sec.  
1026.38(q). The Bureau is adopting the revisions to Sec.  1026.38(q)(1) 
and (2) based on its authority under TILA section 105(a), RESPA section 
19(a), and Dodd-Frank Act section 1032(a).
38(r) Contact Information
    Under TILA section 128(a)(1) and Regulation Z Sec.  1026.18(a), the 
TILA disclosures must include the identity of the creditor. Comment 
18(a)-1 clarifies that the ``identity'' of the creditor must include 
the name of the creditor, but may also include the creditor's address 
and/or telephone number. As stated in appendix C to Regulation X, the 
RESPA GFE must include the name, address, phone number, and email 
address (if any) of the loan originator. As stated in appendix A to 
Regulation X, the RESPA settlement statement must include the name and 
mailing address of the lender and the name, address, and phone number 
of the settlement agent. Moreover, TILA section 129B(b)(1)(B), which 
was added to TILA by section 1402 of the Dodd-Frank Act, provides that 
each mortgage originator must include on all loan documents any unique 
identifier of the mortgage originator provided by the NMLSR. However, 
TILA, RESPA, and their implementing regulations currently do not 
expressly require the disclosure of: (1) The email address of the 
creditor (unless the creditor is also the loan originator, in which 
case it must be disclosed on the GFE but not on the RESPA settlement 
statement); (2) the name, email address, and phone number of the 
consumer's primary contact with the creditor; (3) the email address of 
the closing agent; (4) the name, email address, and phone number of the 
consumer's and seller's real estate brokers, if any; or (5) the license 
number or other unique identifier issued by the applicable jurisdiction 
or regulating body with which a closing agent or real estate broker is 
licensed and/or registered, if any.
    The Bureau received feedback from the public through its Know 
Before You Owe initiative that requested contact information on the 
disclosure to appear only on one part of the Closing Disclosure. Based 
on this feedback, the Bureau tested a prototype design with contact 
information for the creditor, mortgage broker, and other parties 
related to the transaction in one table. During consumer testing, 
consumers and industry participants found the contact information table 
useful and easy to follow, and indicated that it contained the basic 
information they needed to follow up with the various parties related 
to the transaction.
    Therefore, the Bureau proposed to require that the Closing 
Disclosure contain a contact information table as set forth in proposed 
Sec.  1026.38(r) based on its authority under TILA sections 105(a), 
RESPA section 19(a), Dodd-Frank Act section 1032(a) and, for 
residential mortgage loans, Dodd-Frank Act section 1405(b). The Bureau 
stated its belief in the proposal that the contact information table 
required to be disclosed under proposed Sec.  1026.38(r) will 
effectuate the purposes of TILA and RESPA by facilitating the informed 
use of credit and ensuring that consumers are provided with greater and 
more timely information on the costs of the closing process. The Bureau 
believed that providing consumers with multiple types of contact 
information for the critical non-seller parties participating in the 
transaction will allow consumers easier access to information relevant 
to the transaction (including costs), which in turn enhances consumer 
understanding of the costs, benefits, and risks associated with the 
transaction in light of the facts and circumstances (which is 
consistent with Dodd-Frank Act section 1032(a)). The Bureau also stated 
its belief in the proposal that such disclosure will improve consumers' 
awareness and understanding of residential mortgage transactions, which 
is in the interest of consumers and the public (which is consistent 
with Dodd-Frank Act section 1405(b)).
    Moreover, the Bureau proposed Sec.  1026.38(r) based on its mandate 
under sections 1032(f), 1098, and 1100A of the Dodd-Frank Act to 
propose rules and forms that combine the disclosures required under 
TILA and sections 4 and 5 of RESPA into a single, integrated disclosure 
for mortgage loan transactions covered by those laws. As discussed 
above, appendix C to Regulation X states that the RESPA GFE must 
include the name, address, phone number, and email address (if any) of 
the loan originator, and pursuant to appendix A to Regulation X, the 
RESPA settlement statement must include the name and mailing address of 
the lender and the name, address, and phone number of the settlement 
agent. Accordingly, as part of the Bureau's statutory mandate to 
integrate the TILA and RESPA disclosures, the Bureau stated in the 
proposal that it must integrate the disclosures currently required 
under Regulation X with the

[[Page 80050]]

TILA-mandated disclosures of the creditor's identity, discussed above.
    As noted above, TILA section 129B(b)(1)(B), as added by section 
1402 of the Dodd-Frank Act, provides that each mortgage originator must 
include on all loan documents any unique identifier of the mortgage 
originator provided by NMLSR. As discussed in the section-by-section 
analysis of Sec.  1026.37(k), since the proposal was issued, new TILA 
section 129B(b)(1)(B) has been implemented in the Bureau's 2013 Loan 
Originator Final Rule as Sec.  1026.36(g). The Bureau proposed to use 
its authority under TILA section 105(a), Dodd-Frank Act section 1032(a) 
and, for residential mortgage loans, Dodd-Frank section 1405(b) to 
include in the contact information table to be disclosed under Sec.  
1026.38(r) the NMLSR identification number and State license number for 
the creditors, mortgage brokers, and the individual persons employed by 
such entities, as applicable, since the additional information of the 
NMLSR and license numbers for State regulated settlement service 
providers will improve consumer awareness and understanding of 
transactions involving residential mortgage loans and is therefore in 
the interest of consumers and the public by providing the consumer with 
information about the licensing of the settlement service providers. 
The proposal's requirement to include the NMLSR ID on the Closing 
Disclosure complements those adopted in Sec.  1026.36(g) in the 
Bureau's 2013 Loan Originator Final Rule. Section 1026.36(g) as 
finalized requires a loan originator organization to include its name 
and NMLSR ID as well as the name and NMLSR ID of any individual loan 
originator with primary responsibility for the loan origination on 
certain specified loan documents for all consumer credit transactions 
secured by a dwelling.
    The Bureau also stated its belief in the proposal that the 
disclosure of contact information in a tabular format as required by 
proposed Sec.  1026.38(r) would complement Sec.  1026.19(f)(1)(ii), 
which requires delivery of the Closing Disclosure three business days 
prior to consummation. As noted above, Sec.  1026.19(f)(1)(ii) 
reconciles the TILA and RESPA timing provisions by requiring that 
consumers be given the integrated disclosures three business days prior 
to consummation. During this three-business-day period, the Bureau 
stated its expectation in the proposal, that the consumer can review 
the Closing Disclosure, contact the creditor, closing agent, mortgage 
broker, and real estate brokers with questions regarding the 
information contained on the Closing Disclosure, and correct any errors 
prior to consummation. Accordingly, the contact information table 
required under proposed Sec.  1026.38(r) would have made it easier for 
consumers to contact the critical non-seller parties participating in 
the transaction during the three-business-day period prior to 
consummation. The inclusion of primary contact email addresses and 
phone numbers in the table also would have facilitated efficient 
communication between the consumer and the other parties.
    As applicable, the table required by proposed Sec.  1026.38(r) 
would have included contact information for the creditor, the mortgage 
broker, the consumer's real estate broker, the seller's real estate 
broker, and the closing agent. The table would include the following 
contact information for each party, as applicable: name, address, NMLSR 
identification/license number, name of primary contact, NMLSR 
identification/license number of the primary contact, email address of 
primary contact, and phone number of primary contact.
    Proposed comments 38(r)-1 through -6 would have provided additional 
guidance regarding these required disclosures. For instance, proposed 
comment 38(r)-3 would have clarified that the address disclosed in the 
contact information table is the identified party's place of business 
where the primary contact for the transaction is located (usually the 
local office), rather than a general corporate headquarters address. 
Similarly, proposed comment 38(r)-6 would have clarified that the 
primary contact working at the identified party is the individual who 
interacts most frequently with the consumer and who has an NMLSR 
identification number or, if none, a license number, or other unique 
identifier to be disclosed under proposed Sec.  1026.38(r)(3) and (5), 
as applicable, and provides examples of the primary contact to be 
disclosed in a given transaction.
    Comments received related to the contact information table 
generally are discussed in the section-by-section analysis of Sec.  
1026.37(k), above. Specifically with respect to the contact information 
table required by Sec.  1026.38(r), a large bank requested that the 
Bureau eliminate the requirement to disclose the real estate brokers' 
names and contact information because real estate brokers are less 
relevant at the closing stage of the loan process and it would be 
burdensome for lenders to obtain such information. A large bank also 
requested guidance on whether the primary contact for the creditor must 
be the loan originator's name or whether the creditor may designate any 
individual as its contact. A national trade association representing 
developers of timeshare and other similar fractional interest real 
estate products stated that the Bureau should clarify that the proposed 
disclosure of the creditor's NMLSR identification number would not 
apply to timeshare lenders. The trade association commenter asserted 
that it believes that TILA section 103(cc)(5), as added by section 1401 
of the Dodd-Frank Act, exempted timeshare lenders from compliance with, 
among other things, TILA section 129B(b)(1)(B) and any regulations 
promulgated thereunder.
    With respect to the commenter's request to eliminate the 
requirement to disclose real estate brokers' contact information, the 
Bureau declines to eliminate that requirement because it believes 
consumers will benefit from disclosure of real estate broker contact 
information at closing. Indeed, consumers' relationships with real 
estate brokers differ widely and there may be some consumers who 
consult their real estate broker at the closing stage of a transaction. 
A consumer may find it easier to ask a question with such contact 
information being readily available on the Closing Disclosure. 
Moreover, the Bureau does not believe it is particularly burdensome for 
a creditor to obtain the name and contact information for the real 
estate brokers in the transaction. The creditor could obtain such 
information from the real estate purchase and sale contract or from the 
consumer directly.
    Regarding the request for guidance on whether a creditor may 
designate any individual as a contact for the consumer, Sec.  
1026.38(r)(4) would have required disclosure of the name of the natural 
person who is the primary contact for the consumer which, in the case 
of the creditor is likely to be the loan originator. Section 38(r)(4) 
would not have permitted designation of a natural person completely 
unrelated to the consumer's transaction as the primary contact for the 
consumer in all instances but there may be situations where, depending 
on the facts and circumstances, the primary contact for the consumer is 
not the loan originator. With respect to the request that the proposed 
disclosure of the creditor's NMLSR identification number not apply to 
timeshare lenders because such lenders are exempt from TILA section 
129B(b)(1)(B), that section of TILA is implemented by the 2013 Loan 
Originator Final Rule as Sec.  1026.36(g). Section 1026.38(r)(3) and 
(5) requires

[[Page 80051]]

disclosure of the creditor's NMLSR identification number pursuant to 
the Bureau's authority under TILA section 105(a), Dodd-Frank Act 
section 1032(a) and, for residential mortgage loans, Dodd-Frank section 
1405(b). This final rule does not implement TILA section 129B(b)(1)(B) 
and thus, the commenter's request for an exemption is not relevant to 
the NMLSR identification number required by Sec.  1026.38(r)(3) and 
(5).
    As discussed more fully in the section-by-section analysis of Sec.  
1026.37(k), two GSEs commented and requested in an ex parte meeting 
that disclosure of a State-issued license number or other unique 
identification number also include the State that issued the license. 
In response to this comment, the Bureau is revising Sec.  1026.38(r)(3) 
and (5) to require disclosure of a two letter abbreviation to designate 
the State, territory, or locality issuing a license identification 
number or other unique identifier when such is disclosed. The Bureau is 
likewise revising comments 38(r)-4 and -5 to clarify how to disclose 
such abbreviation. Also in response to the GSE's comment, the Bureau is 
revising the design of the contact information table in form H-25 of 
appendix H to Regulation Z to provide separate rows for disclosure of 
an NMLSR ID and the State license identification number or other unique 
identifier. This revision also enables the insertion of the 
abbreviation for the State issuing the license as required by revised 
Sec.  1026.38(r)(3) and (5).
    For the reasons discussed and based on the legal authority 
discussed above and in the proposal, the Bureau is adopting Sec.  
1026.38(r) as revised. The Bureau is further revising Sec.  1026.38(r) 
to use the term settlement agent, rather than closing agent, to conform 
to form H-25 of appendix H to Regulation Z. The Bureau did not receive 
comments on any of the proposed commentary to Sec.  1026.38(r). The 
Bureau is adopting comments 38(r)-1, -4, and -5 as revised to delete 
the reference to disclosing ``N/A'' for an NMLSR ID for the reasons 
discussed in the section-by-section analysis of Sec.  1026.38 and 
comments 38-1 and 38(r)-2 are revised with minor modifications for 
clarity. The Bureau is further revising comments 38(r)-4 and -5 to 
require disclosure of the abbreviation of the State issuing a license 
identification number for the reasons discussed above. Lastly, the 
Bureau is revising comments 38(r)-1, -3, -4, -5, and -6 to refer to 
settlement agent, rather than closing agent for the subheading and 
content of the disclosures to conform with form H-25 and to remove 
references to the closing agent, for the same reasons described in the 
section-by-section analysis of Sec.  1026.38(q) above. The Bureau is 
also adding comment 38(r)-7 to clarify that disclosure of a general 
number or email address for the lender, mortgage broker, real estate 
broker, or settlement agent, as applicable, satisfies the requirements 
of Sec.  1026.38(r)(6) and (7) under certain circumstances, in response 
to comments discussed in the section-by-section analysis of Sec.  
1026.37(k).
38(s) Signature Statement
    For the reasons discussed and based on the legal authority set 
forth in the section-by-section analysis of Sec.  1026.37(n), proposed 
Sec.  1026.38(s) would have implemented the requirements of TILA 
section 128(b)(2)(B)(i) for transactions subject to Sec.  1026.19(f). 
The disclosure requirements in proposed Sec.  1026.38(s) would have 
mirrored the requirements in Sec.  1026.37(n). Proposed comment 38(s)-1 
would have cross-referenced the commentary to proposed Sec.  1026.37(n) 
for guidance regarding optional signature requirements and signature 
lines for multiple consumers.
    As described in the proposal, during the Bureau's Small Business 
Review Panel, some industry participants expressed concern that 
consumers might be confused about the effect of signing the Closing 
Disclosure to acknowledge receipt. Small Business Review Panel Report 
at 29. Based on this feedback, the Panel recommended that the Bureau 
consider whether to revise the signature statement on the prototype 
form, or whether additional guidance should be provided to clarify the 
effect of a signature line on the consumer's legal obligation. Id.
    Comments received with respect to the signature statement required 
by Sec.  1026.37(n) that also relate to the disclosure required by 
Sec.  1026.38(s) are discussed in the section-by-section analysis of 
Sec.  1026.37(n). Specifically with respect to the disclosure required 
by Sec.  1026.38(s), several varied industry commenters stated their 
belief that the statement following the signature line would be 
confusing when the consumer received the Closing Disclosure at closing 
when the transaction will almost certainly be consummated. Though Sec.  
1026.19(f) typically requires receipt by the consumer of the Closing 
Disclosure three business days before consummation, a consumer may 
receive the Closing Disclosure on the day of closing under the limited 
circumstances permitted by Sec.  1026.19(f). Similarly, certain 
commenters objected to the word ``Applicant'' being shown under the 
signature line on form H-25 given that in the closing stage of a 
transaction, the consumer is more typically referred to as the 
borrower. One national title company praised the signature line 
disclosure as clear and to the point.
    Several industry commenters requested guidance on who meets the 
definition of consumer and, specifically, whether a non-applicant with 
the right to cancel would be required to sign the Closing Disclosure 
pursuant to Sec.  1026.38(s) if a creditor elected to include the 
signature line. A GSE requested that the Bureau add a statement with 
the signature line that the information from the consumer and 
settlement agent were true and correct as an anti-fraud measure. The 
GSE noted that such statements were included on previous versions of 
the disclosure required by Regulation X and are needed to deter fraud.
    With respect to comments that the statement beneath the signature 
line as illustrated by proposed form H-25 would be confusing, the 
Bureau believes the statement is not confusing, because it pertains to 
the act of signing the disclosure and not the act of signing a 
promissory note or security instrument. The Bureau has considered the 
Small Business Review Panel's recommendation and believes, based on 
several rounds of consumer testing, that consumers understand the 
disclosure in proposed Sec.  1026.38(s) to mean that they are not 
obligated to complete the loan transaction just because they signed the 
Closing Disclosure. Indeed, the Bureau further believes consumers will 
understand the proposed disclosure in Sec.  1026.38(s) given that Sec.  
1026.19(f) requires delivery of the Closing Disclosure three days 
before consummation. As a result, the Bureau believes, as stated in the 
proposal, that the disclosure is appropriate. The statement as required 
by Sec.  1026.38(s) reads: ``By signing, you are only confirming that 
you have received this form. You do not have to accept this loan 
because you have signed or received this form.'' Under Sec.  
1026.19(f), the act of signing the disclosure may take place days 
before the signature of the promissory note and security instrument. 
Even at the consummation or settlement of the transaction, the 
settlement agent may review the Closing Disclosure before the consumer 
executes the promissory note and security instrument. The consumer's 
signature signifies only receipt of the Closing Disclosure and the 
statement is clear that signing of the form in and of itself does not 
obligate the consumer to proceed with the loan transaction. In 
addition, the Bureau does not believe that use of the word 
``Applicant'' under

[[Page 80052]]

the signature line is confusing for the same reasons, and because it 
would be inaccurate to refer to the consumer as a borrower prior to 
executing the promissory note. The word ``Applicant'' reflects that the 
consumer is not yet obligated to proceed with the transaction simply by 
virtue of signing the Closing Disclosure. That is true whether the 
consumer is signing the Closing Disclosure at the closing table or 
three days before closing. Moreover, to the extent that creditors 
believe the signature line and accompanying statement are confusing, 
they may be omitted at the creditor's option under Sec.  1026.38(s). 
For the reasons above, the Bureau declines to revise the statement 
required along with the signature line or the design of the signature 
line in form H-25. The Bureau is adopting Sec.  1026.38(s) and comment 
38(s)-1 as proposed.
    With respect to consumers in rescindable transactions, the 
definition of consumer is the one provided in Sec.  1026.2(a)(11) which 
does include a non-applicant co-owner of a principal dwelling in a 
transaction governed by Sec. Sec.  1026.15 and 1026.23. As clarified by 
comment 17(d)-2, Sec.  1026.17(d) requires the disclosures required by 
Sec.  1026.19(f) to be given to each consumer who has the right to 
rescind under Sec.  1026.23. Accordingly, because a non-applicant co-
owner has the right of rescission under Sec.  1026.23, the creditor 
would be required to deliver the Closing Disclosure to each such non-
applicant co-owner and do so separately from any other consumer to whom 
the Closing Disclosure is required to be delivered. To the extent that 
such consumers' names do not fit on the space allocated for a signature 
on form H-24, comment 37(n)-2 provides that an additional page may be 
added to the Closing Disclosure.
    With respect to the GSE commenter's request for an anti-fraud 
statement, the purpose of the integrated disclosures is to promote the 
informed use of credit and more effective advance notice of settlement 
costs to enable consumers to better understand the costs, benefits, and 
risks associated with mortgage transactions. While deterring fraud is 
undoubtedly an interest of secondary market investors in residential 
mortgage loans, the Bureau is concerned that including such information 
would lead to information overload because it is not related to the 
consumer's understanding or evaluation of their loan terms and costs. 
Secondary market investors and creditors may request such a statement 
from consumers in a separate document, provided such document complies 
with the requirements and restrictions of Sec.  1026.38, including the 
segregation requirements of Sec.  1026.38(t).
    For the reasons discussed and pursuant to the legal authority 
described above and in the proposal, the Bureau is adopting Sec.  
1026.38(s) substantially as proposed, with minor modifications for 
clarity and to conform to Sec.  1026.37(n), and require that the 
statement disclosed with the signature line be above the signature 
line. The Bureau is adopting comment 38(s)-1 as proposed.
38(t) Form of Disclosures
    As discussed above, the Bureau proposed to exclude transactions 
subject to proposed Sec.  1026.19(f) from the coverage of Sec.  
1026.17(a) and (b). Consequently, the implementation of TILA sections 
122(a) and 128(b)(1) in Sec.  1026.17(a)(1), requiring that the 
disclosures be clear and conspicuous and that they be segregated from 
everything else, does not apply to the integrated disclosures set forth 
in Sec.  1026.38 under this proposal. As described in the section-by-
section analysis of proposed Sec.  1026.37(o), the Bureau, pursuant to 
its implementation authority under TILA section 105(a), proposed to 
implement the statutory segregation and clear and conspicuous 
requirements of TILA sections 122(a) and 128(b)(1) for the disclosure 
required by proposed Sec.  1026.38 in new Sec.  1026.38(t). The Bureau 
stated its belief in the proposal that these requirements will assure a 
meaningful disclosure of credit terms so that the consumer will be able 
to compare more readily the various credit terms available to him or 
her and avoid the uninformed use of credit.
38(t)(1) General Requirements
    Similar to proposed Sec.  1026.37(o)(1), proposed Sec.  
1026.38(t)(1) would have established the requirements that the 
disclosures required by Sec.  1026.38 be clear and conspicuous, in 
writing, and grouped together, segregated from everything else, and 
provided on separate pages that are not commingled with any other 
documents or disclosures, including any other disclosures required by 
State or other laws. Proposed comment 38(t)-1 would have clarified that 
the clear and conspicuous standard requires that the disclosures be 
legible and in a readily understandable form. This guidance is adopted 
from existing comment 17(a)(1)-1. The comment would have clarified that 
proposed Sec.  1026.37(o)(1) requires that the disclosures be grouped 
together, segregated from everything else, and provided on separate 
pages that are not commingled with any other documents or disclosures, 
including any other disclosures required by State or other laws. This 
proposed requirement would be stricter than the guidance found in 
existing comment 17(a)(1)-2, which provides that the disclosures may be 
grouped together and segregated from other information in a variety of 
ways other than a separate piece of paper.
    The Bureau stated in the proposal that it recognized that, in 
certain credit sale and other non-mortgage, closed-end credit 
transactions, creditors include the disclosures required by Sec.  
1026.18 in the loan contract or some other document and ensure that 
they are grouped together and segregated by outlining them in a box or 
other means authorized by comment 17(a)(1)-2. However, as also 
described above in the discussion of Sec.  1026.37(o), the Bureau 
stated its belief in the proposal that this approach is virtually never 
employed for mortgage credit, for which the new disclosures under 
Sec. Sec.  1026.19(f) and 1026.38, rather than Sec.  1026.18 
disclosures, are required. For the reasons stated in that discussion, 
the Bureau believed that requiring the Sec.  1026.38 disclosures to be 
delivered as a separate document does not present any significant new 
obligation that mortgage lenders do not already effectively observe and 
maximizes the benefits of the forms. The Bureau sought comment in the 
proposal, however, on whether there currently are transactions subject 
to Sec.  1026.19(f) that may be burdened by the adoption of this 
requirement. Comments received in relation to this issue are discussed 
in the section-by-section analysis of Sec.  1026.19(f).
    Also, similar to Sec.  1026.37(o)(1)(ii), proposed Sec.  
1026.38(t)(1)(ii) would have provided that the disclosures shall 
contain only the information required by Sec.  1026.38(a) through (s) 
and that they generally shall be made in the same order, and positioned 
relative to the master headings, headings, subheadings, labels, and 
similar designations in the same manner, as shown in form H-25. 
Proposed comment 38(t)-2 would have provided guidance on the treatment 
of balloon payment loans with leasing characteristics. The Bureau did 
not receive any comments regarding Sec.  1026.38(t)(1) and thus is 
adopting Sec.  1026.38(t)(1)(ii) and comments 38(t)(1)-1 and -2 
substantially as proposed, with minor modifications for clarity. The 
Bureau is adopting Sec.  1026.38(t)(1)(i) as revised to delete the 
requirement that the disclosures be on separate pages that are not 
commingled with any other documents or disclosures because the Bureau 
believes that requirement is redundant to the requirement that the 
disclosures be grouped together and segregated from

[[Page 80053]]

everything else. Accordingly, final Sec.  1026.38(t)(1)(i) as revised 
requires only that the disclosures to be grouped together and 
segregated from everything else.
38(t)(2) Headings and Labels
    Similar to Sec.  1026.37(o)(2), proposed Sec.  1026.38(t)(2) would 
have provided that, wherever form H-25 designates the required master 
heading, heading, subheading, label, or similar designation for a 
disclosure as ``estimated,'' that corresponding master heading, 
heading, subheading, label, or similar designation required by Sec.  
1026.38 must include the word ``estimated,'' even if the provision 
requiring such heading, label, or similar designation does not contain 
the word. As noted in the proposal, many of the items that are required 
to be only good faith estimates when included in the Sec.  1026.37 
disclosures, in accordance with Sec.  1026.19(e), will be actual terms 
and costs when stated in the Sec.  1026.38 disclosures, as required by 
Sec.  1026.19(f). As further noted in the proposal and above in the 
section-by-section analysis of Sec.  1026.37(o), many of the disclosure 
items required by Sec.  1026.38 cross-reference their counterparts in 
Sec.  1026.37. To avoid confusion over which items must be designated 
as ``estimates,'' the content provisions of Sec.  1026.37 would not 
have included in any of the master headings, headings, subheadings, 
labels, and similar designations the word ``estimated.'' Instead, Sec.  
1026.37(o)(2) effectively would have incorporated by reference the 
``estimated'' designations reflected on form H-24 of appendix H to 
Regulation Z. Accordingly, proposed Sec.  1026.38(t)(2) also would have 
incorporated by reference the ``estimated'' designations reflected on 
form H-25 of appendix H to Regulation Z. Proposed comment 38(t)(2)-1 
would have provided guidance regarding the requirement to disclose 
certain amounts as estimated amounts based on the designations within 
form H-25.
    A document preparation company requested that the Bureau revise 
Sec.  1026.38(t)(2) to permit disclosure of an ``e'' to denote an 
estimate following certain disclosures on the Closing Disclosure for 
certain transactions where frequently changing interest rates could 
vary many of the amounts disclosed from what is stated on the Closing 
Disclosure. The commenter noted that the construction phase of 
construction-to-permanent loans typically have interest rates that 
change frequently and which could lead to significant changes to the 
amounts disclosed for the initial and projected payments, total of 
payments, total finance charge, annual percentage rate, and amount 
financed.
    The Bureau does not believe that a special rule is required for 
disclosure of estimated figures in transactions with interest rates 
that change frequently, however, because the Closing Disclosure is 
designed to inform consumers of changes to their estimated payments 
after closing. Indeed, where a transaction has an adjustable interest 
rate, the Loan Terms table required by Sec.  1026.38(b) would disclose 
to the consumer how soon the interest rate can adjust and how high the 
periodic payments could go. Moreover, the Projected Payments, 
Adjustable Payment and Adjustable Interest Rate tables would provide 
more information to consumers about the frequency of adjustment of 
their interest rate and how such changes in the interest rate could 
affect their periodic payment. In short, while it is true that many of 
the amounts disclosed on the Closing Disclosure will change after 
closing for adjustable rate transactions, the Bureau believes that the 
Closing Disclosure adequately informs consumers of those potential 
changes without any additional notations on the form.
    The Bureau is aware that other disclosures provided under 
Regulation Z are labeled as estimates when information is unknown. 
However, the Bureau is concerned that labeling certain specific items 
on the Closing Disclosure as estimates may result in consumer confusion 
regarding the nature of the Closing Disclosure. In addition, the 
Closing Disclosure uses the term ``estimated'' in specific areas to 
inform the consumer when certain recurring costs may change in the 
future, such as future payments for taxes and property insurance; the 
intended effect of the term in such areas may be affected by more 
liberal use of that term in other places on the form. Further, the 
Bureau does not believe it is necessary to state that disclosures on 
the Closing Disclosure are estimates when they are based on the best 
information reasonably available, because the final rule requires that 
consumers receive revised disclosures with the actual terms if 
information changes that would have made a previous disclosure 
inaccurate. Under Sec.  1026.19(f)(2)(i) and (ii), creditors must 
provide revised disclosures if information on disclosures provided 
under Sec.  1026.19(f)(1)(i) becomes inaccurate; and consumers will 
receive by consummation corrected disclosures stating the actual terms 
of the transaction. In addition, pursuant to final Sec.  
1026.19(f)(2)(iii), consumers will receive corrected disclosures after 
consummation if a subsequent event changes an amount actually paid by 
the consumer. This approach is consistent with what the Bureau believes 
is the current practice under current Regulation X, which provides that 
the RESPA settlement statement must state the actual charges paid by 
the borrower and seller, and does not provide for estimates, even if 
the RESPA settlement statement is revised during settlement to reflect 
changes.
    The Bureau is adopting Sec.  1026.38(t)(2) substantially as 
proposed but, as it did for the corresponding provision in Sec.  
1026.37(o)(2), the Bureau is expanding Sec.  1026.38(t)(2) to require 
the capital letter designations in the headings and labels on form H-25 
to be disclosed, as applicable. The Bureau makes this revision to 
clarify that the capital letter designations shown before or after 
certain of the headings and labels on form H-25 are required, even 
though the specific provisions of the corresponding disclosures in 
Sec.  1026.38 do not contain the initial capital letter. The Bureau is 
also revising the description of Sec.  1026.38(t)(2) from ``Estimated 
disclosures'' to ``Headings and labels.'' The Bureau is adopting Sec.  
1026.38(t)(2) as revised and comment 38(t)(2)-1 with modifications for 
clarity.
38(t)(3) Form
    Similar to Sec.  1026.37(o)(3), proposed Sec.  1026.38(t)(3) also 
would have provided that, for a transaction that is a federally related 
mortgage loan, as defined in Regulation X, the disclosures must be made 
using form H-25 of appendix H to Regulation Z. As discussed in the 
proposal, certain closed-end consumer credit transactions are subject 
to the requirements of Sec.  1026.19(f) but do not fit the Regulation X 
definition of ``federally related mortgage loan.'' These include 
construction-only loans with terms of less than two years that do not 
finance the transfer of title to the consumer and loans secured by 
vacant land on which a home will not be constructed or placed using the 
loan proceeds within two years after settlement of the loan. See Sec.  
1024.5(b)(3) and (4). In addition, transactions subject to Sec.  
1026.19(f) but not subject to RESPA would include loans secured by non-
residential real property, provided they are made primarily for a 
consumer purpose as required by Sec.  1026.1(c)(1)(iv). See 12 CFR 
1024.2, definition of ``federally related mortgage loan,'' paragraph 
(1)(i) (requiring that the securing property be ``residential real 
property'').
    As with transactions subject to Sec.  1026.19(e), for such 
transactions that are subject to Sec.  1026.19(f), because they

[[Page 80054]]

are subject to TILA and are secured by real property, but that are not 
subject to RESPA, the Bureau stated in the proposal that it would not 
mandate the use of form H-25 as a standard form. TILA section 105(b) 
provides that nothing in TILA may be construed to require a creditor to 
use any model form or clause prescribed by the Bureau under that 
section. Accordingly, proposed Sec.  1026.38(t)(3) would have provided 
that, for transactions subject to Sec.  1026.38 that are not federally 
related mortgage loans, the disclosures must be made with headings, 
content, and format substantially similar to form H-25 but does not 
mandate the use of that form. Consistent with TILA section 105(b), 
proposed comment 38(t)(3)-1 would have explained that, although use of 
the form as a standard form is not mandatory for such transactions, its 
use as a model form, if properly completed with accurate content, 
constitutes compliance with the clear and conspicuous and segregation 
requirements of Sec.  1026.38(t)(1). Similar to Sec.  
1026.37(o)(3)(iii), proposed Sec.  1026.38(t)(3)(iii) also would have 
provided that the disclosures may be provided in electronic form, 
subject to compliance with the E-Sign Act. This provision parallels 
existing Sec.  1026.17(a)(1).
    As discussed in the section-by-section analysis of proposed Sec.  
1026.37(o)(3), the Bureau proposed the requirement that creditors use 
the standard form for federally related mortgage loans pursuant to 
RESPA section 4(a), as amended by the Dodd-Frank Act. 12 U.S.C. 
2603(a). As discussed above, although the Dodd-Frank Act eliminated one 
reference in RESPA section 4(a) to a ``standard'' form, it left the 
other such reference in place, as well as another such reference in 
section 4(c). More notably, in amending section 4(a), Congress did not 
include an explicit prohibition of a mandatory-use form. For this 
reason, the Bureau does not believe that Congress intended to eliminate 
standard-form authority from RESPA section 4.
    The Bureau also proposed the mandatory form pursuant to its 
authority in RESPA section 19(a) to prescribe such rules and 
regulations as may be necessary to achieve RESPA's purposes. 12 U.S.C. 
2617(a). RESPA's purposes include the establishment of more effective 
advance disclosure to home buyers and sellers of settlement costs. 12 
U.S.C. 2601(b)(1). The Bureau stated its belief in the proposal, based 
on consumer testing results, that the purpose of more effective advance 
disclosure of settlement costs is better achieved if all lenders 
provide those disclosures in a standardized format. In the Bureau's 
consumer pre-proposal testing, participants were able to compare the 
costs disclosed on the Loan Estimate and Closing Disclosure more easily 
when they were provided in a format that matched closely. In addition, 
as stated in the proposal, participants better understood the costs 
disclosed in the Closing Disclosure after gaining experience using the 
matching format of the Loan Estimate. Further, the Bureau stated its 
belief in the proposal that disclosure of settlement costs alone, 
without the context provided by the credit terms, is far less effective 
in aiding consumer understanding of the transaction. This is consistent 
with HUD's rationale for including credit terms in the required RESPA 
GFE, in HUD's 2008 RESPA Final Rule. See 73 FR 68204, 68214-15 (Nov. 
17, 2008). This is also the stated purpose of the integrated disclosure 
under RESPA section 4(a).
    Accordingly, as stated in the proposal, the Bureau is authorized 
under RESPA section 19(a) to require the standard form for the 
disclosure of all of the information it contains, both settlement costs 
and credit terms alike. The Bureau further stated in the proposal that 
it was using this authority to require a standard form for federally 
related mortgage loans under Sec.  1026.38(t)(3)(i). As described 
above, for transactions subject to Sec.  1026.19(f), the Bureau is 
using its authority under TILA section 105(b) to establish a model 
disclosure for credit transactions subject to TILA and not RESPA. For a 
detailed description of the Bureau's implementation of these rules and 
use of TILA section 105(a) authority, see the section-by-section 
analysis of Sec.  1026.37(o)(3).
    As discussed in the proposal, during the Small Business Review 
Panel, several settlement agents requested that the Bureau require the 
use of a standard integrated disclosure form. The settlement agents 
stated that if the forms were only models, creditors would establish 
inconsistent requirements, which would be more expensive for small 
settlement agents. See Small Business Review Panel Report at 19. 
Feedback requesting both standard and model forms was also submitted by 
industry trade associations in response to the Small Business Review 
Panel Outline. In consideration of the recommendation of the Small 
Business Review Panel, the Bureau sought comment in the proposal on the 
advantages, such as cost-saving benefits, and disadvantages of 
requiring a standard form for the Closing Disclosure for federally 
related mortgage loans and model forms for other credit transactions 
subject to proposed Sec.  1026.19(f). Id. at 28. The comments received 
on that topic are discussed in the section-by-section analysis of Sec.  
1026.37(o)(3). For the reasons discussed with respect to Sec.  
1026.37(o)(3), the Bureau is adopting Sec.  1026.38(t)(3)(ii) and (iii) 
as proposed and is adopting Sec.  1026.38(t)(3)(i) and comment 
38(t)(3)-1 substantially as proposed but with minor modifications for 
clarity.
    A document preparation company requested that the Bureau permit 
deviation from the required format for disclosures to be optimized to 
show on a computer screen or a tablet. For the reasons discussed in the 
section-by-section analysis of Sec.  1026.37(o)(3)(iii), the Bureau 
declines to permit such deviations at the present time.
38(t)(4) Rounding
    Similar to Sec.  1026.37(o)(4), proposed Sec.  1026.38(t)(4) would 
have required certain numerical amounts on the Closing Disclosure to be 
rounded. The Bureau proposed this requirement for the same reasons as 
the requirements of Sec.  1026.37(o)(4), namely to reduce information 
overload, aid in consumer understanding of the transaction, prevent 
misconceptions regarding the accuracy of certain estimated amounts 
(e.g., estimated property costs over the life of the loan), and ensure 
a meaningful disclosure of credit terms. For a detailed description of 
the Bureau's use of its authority under TILA section 105(a), RESPA 
section 19(a), and section 1405(b) of the Dodd-Frank Act in requiring 
rounded numbers on the integrated disclosures, see the section-by-
section analysis of proposed Sec.  1026.37(o)(4). Proposed comment 
38(t)(4)-1 would have clarified that consistent with Sec.  1026.2(b)(4) 
all numbers are to be disclosed as exact numbers, unless required to be 
rounded by proposed Sec.  1026.38(t)(4). Proposed comment 38(t)(4)-2 
would have referred to commentary to Sec.  1026.37(o)(4) for guidance.
    Comments received related generally to rounding numbers on the 
integrated disclosures are discussed in the section-by-section analysis 
of Sec.  1026.37(o)(4). The Bureau did not receive any comments related 
specifically to the rounding provisions in Sec.  1026.38(t)(4). Because 
the Bureau continues to believe that the rounding of certain numbers 
disclosed on the Closing Disclosure will effectuate the purposes of 
TILA and RESPA, the Bureau is adopting Sec.  1026.38(t)(4)(i), 
(t)(4)(ii) and comment 38(t)(4)-2 substantially as proposed, except for 
modifications for clarity and

[[Page 80055]]

technical revisions to Sec.  1026.38(t)(4)(ii) to correct cross-
references and to Sec.  1026.38(t)(4)(i)(C) to add the alternative 
Calculating Cash to Close table under Sec.  1026.38(e) and to revise 
the subheading as finalized in the Calculating Cash to Close table 
under Sec.  1026.38(e) and (i) and to Sec.  1026.38(t)(4)(i)(E) to 
revise a cross-reference.
    The Bureau is also adding Sec.  1026.38(t)(4)(iii) to provide, 
consistent with Sec.  1026.37(o)(4)(i)(B), that the dollar amount 
required to be disclosed by Sec.  1026.38(b) pursuant to Sec.  
1026.37(b)(1), for the loan amount, shall be disclosed as an exact 
number, except that decimal places shall not be disclosed if the amount 
of cents is zero. The Bureau believes, based on its consumer testing, 
that disclosing the loan amount without cents if the amount of cents is 
zero, will be easier for a consumer to understand and reduce the 
potential for information overload. The Bureau's Quantitative Study 
used prototype Closing Disclosures that disclosed the loan amount on 
page 1 in this manner, and the consumer participants using the Bureau's 
integrated disclosures were able to identify the loan amount on the 
Closing Disclosure statistically significantly better than those using 
the current disclosures. See Kleimann Quantitative Study Report at 54-
55. The Bureau is also revising comment 38(t)(4)-1, which provides 
general guidance regarding rounding, for clarity and to reflect the 
change adopted in Sec.  1026.38(t)(4)(iii).
38(t)(5) Exceptions
    The Bureau stated its belief in the proposal that it must specify 
the changes to the format of the Closing Disclosure that are required 
and permissible, to ensure the disclosures provided to consumers convey 
the information required by Sec.  1026.38 in a clear, understandable, 
and effective manner for consumers. Accordingly, pursuant to its 
authority under RESPA section 19(a), TILA section 105(a), and section 
1032(a) of the Dodd-Frank Act, the Bureau proposed Sec.  1026.38(t)(5) 
to provide for a specific list of exceptions to the format of the 
Closing Disclosure, as illustrated in form H-25 of appendix H to 
Regulation Z. For a detailed description of the Bureau's use of its 
authority under TILA section 105(a), RESPA section 19(a), and section 
1405(b) of the Dodd-Frank Act in providing for a list of exceptions to 
the required format, see the section-by-section analysis of proposed 
Sec.  1026.37(o)(5).
    The requirements of proposed Sec.  1026.38(t)(5) would have 
mirrored those of Sec.  1026.37(o)(5), with appropriate differences for 
the different format, timing, and use of the two disclosures. Like 
Sec.  1026.37(o), proposed Sec.  1026.38(t)(5)(i) would have required 
modification to indicate the frequency of payment or applicable unit-
period for the transaction; proposed Sec.  1026.38(t)(5)(ii) would have 
permitted lender credits to be deleted from the Cash to Close 
disclosure required by proposed Sec.  1026.38(d); proposed Sec.  
1026.38(t)(5)(iii) would have permitted the addition of administrative 
information in a certain space on the form; and proposed Sec.  
1026.38(t)(5)(ix) would have permitted translation of the form into 
languages other than English. In contrast to Sec.  1026.37(o)(5)(iii), 
proposed Sec.  1026.38(t)(5) would not have permitted a creditor to 
insert a logo or slogan on the Closing Disclosure with the creditor 
information required by proposed Sec.  1026.38(a)(4)(iii). Comments 
received related to Sec.  1026.38(t)(5)(i), (ii), (iii), and (ix) are 
discussed in the section-by-section analysis of the corresponding 
paragraph in Sec.  1026.37(o)(5).
    While Sec.  1026.37(o)(5) does not permit the deletion of lines 
from the form H-24 of appendix H to Regulation Z for the information 
required to be disclosed by Sec.  1026.37(f) and (g), proposed Sec.  
1026.38(t)(5)(iv) would have permitted the deletions of lines in 
certain circumstances from proposed form H-25 of appendix H to 
Regulation Z. Section 1026.37(o) does not permit the use of more than 
one page for closing cost details on the Loan Estimate, except for the 
services for which a consumer can shop under Sec.  1026.37(f)(3) which 
may be placed on an additional page at the end of the Loan Estimate 
under the circumstances permitted by Sec.  1026.37(o)(5)(viii). In 
contrast, proposed Sec.  1026.38(t)(5)(v) would have permitted the 
expansion of the information required by Sec.  1026.38(f), (g), and (h) 
over two pages in certain circumstances to accommodate the closing 
costs and itemization required on the Closing Disclosure, provided that 
the Loan Costs and Other Costs under Sec.  1026.38(f) and (g), 
respectively, are each disclosed on a single page.
    The Bureau stated its understanding in the proposal that the 
Closing Disclosure may be provided to parties other than consumers, 
unlike the Loan Estimate. In light of privacy considerations that may 
arise, proposed Sec.  1026.38(t)(5)(vi) would have permitted the 
creditor or settlement agent preparing the disclosure to leave certain 
information regarding the consumer's transaction blank in the 
disclosure provided to the seller and vice versa. Similarly, proposed 
Sec.  1026.38(t)(5)(vii) would have permitted the creditor or 
settlement agent preparing the disclosure to delete certain information 
regarding the consumer's transaction from the disclosure provided to a 
seller or third party. For example, proposed Sec.  1026.38(t)(5)(vii) 
would have permitted the disclosures regarding the consumer's credit 
transaction required by Sec.  1026.38(l) through (s) to be deleted from 
the form provided to a seller. An illustration of such form was 
provided in proposed form H-25(I) of appendix H to Regulation Z. 
Further, considering that some credit transactions may not involve 
sellers, proposed Sec.  1026.38(t)(5)(viii) also would have permitted 
use of a modified version of the form for credit transactions that do 
not involve a seller, such as a refinance transaction, which was 
illustrated in proposed form H-25(J). Proposed Sec.  1026.38(t)(5)(x) 
would have permitted the addition of a page for customary recitals and 
information used locally in real estate settlements.
    Proposed comment 38(t)(5)-1 would have clarified that any changes 
not specified in proposed Sec.  1026.38(t)(5) may affect the substance, 
clarity, or meaningful sequence of the disclosure and cause the 
creditor to lose protection from civil liability under TILA. Similar to 
comments 37(o)(t)-2 through -5, proposed comments 38(t)(5)-2 through -4 
would have provided guidance regarding manual completion of the form, 
modifications to accommodate additional contact information, and the 
addition of signature lines permitted by Sec.  1026.38(t)(5). In 
addition, because certain disclosures required by proposed Sec.  
1026.38 would have been permitted by proposed Sec.  1026.38(t) to be 
disclosed over two pages, even though they are illustrated on form H-25 
of appendix H to Regulation Z as disclosed on one page, proposed 
comment 38(t)(5)-6 would have permitted modifications to the page 
number references illustrated on form H-25 accordingly. Proposed 
comments 38(t)(5)(iv)-1 and 38(t)(5)(v)-1 and -2 would have provided 
clarification about permissible changes to the required disclosure of 
closing cost details when the space provided on form H-25 does not 
accommodate all of the costs required to be disclosed. Proposed 
comments 38(t)(5)(viii)-1 and -2 would have provided clarifications 
regarding modifications permitted for transactions without a seller. 
Lastly, proposed comment 38(t)(5)(x)-1 would have provided 
clarification regarding adding an additional page for customary

[[Page 80056]]

recitals and information typically used locally in real estate 
settlements.
    A national title insurance company suggested that the Bureau 
expressly prohibit the insertion of a logo or slogan on the Closing 
Disclosure. Several trade associations representing mortgage lenders 
requested guidance on how to disclose closing costs on an additional 
page and asked whether that additional page could be divided into two 
parts in order to keep items within categories grouped together. The 
Bureau received comments from two document preparation companies 
requesting guidance on when additional pages were permitted to be added 
to both the Loan Estimate and the Closing Disclosure.
    With respect to the comment that the Bureau should expressly 
prohibit insertion of a logo or slogan, Sec.  1026.38(t)(1)(ii) states 
that disclosures shall be made in the same order, and positioned 
relative to the master headings, headings, subheadings, labels, and 
similar designations in the same manner, as shown in form H-25, except 
as provided in Sec.  1026.38(t)(5). Accordingly, because the insertion 
of a logo or slogan is not listed in Sec.  1026.38(t)(5), it is 
prohibited by Sec.  1026.38(t)(1)(ii).
    Regarding the disclosure of closing cost details on an additional 
page, the intent of proposed Sec.  1026.38(t)(5)(v) was to keep the 
disclosures required by Sec.  1026.38(f), (g), and (h) grouped 
together, even when disclosed over two pages. Specifically, proposed 
Sec.  1026.38(t)(5)(iv) and (v) would have required that when disclosed 
over two pages, the information required by Sec.  1026.38(f) be 
disclosed on a separate page from Sec.  1026.38(g) and that the 
information required by Sec.  1026.38(h) be disclosed on the same page 
as the information required by Sec.  1026.38(g). An example of the 
disclosure of closing costs over two pages pursuant to proposed Sec.  
1026.38(t)(5)(v) was included as form H-25(H) in the proposal.
    The Bureau believes, from its review of the comments received 
regarding proposed Sec.  1026.38(t)(5)(v) and proposed comment 
38(t)(5)-5, that commenters were confused about how these provisions 
worked together. Accordingly, the Bureau is revising proposed Sec.  
1026.38(t)(5)(v) to refer to disclosure of the Closing Cost Details 
``over two pages,'' rather than on ``an additional page.'' The Bureau 
acknowledges that it used the term ``additional page'' in other 
sections of the proposal to describe a page added to the end of the 
Loan Estimate or Closing Disclosure as permitted in limited 
circumstances. The Bureau is also reorganizing proposed Sec.  
1026.38(t)(5)(iv) and (v) into one paragraph, finalized as Sec.  
1026.38(t)(5)(iv), titled ``Closing Cost Details'' and separated into 
two sub-paragraphs to improve clarity regarding the interaction of 
these two requirements.
    Final Sec.  1026.38(t)(5)(iv)(A) addresses adding or deleting line 
numbers in the Closing Cost Details table while final Sec.  
1026.38(t)(v)(iv)(B) addresses disclosing closing costs over two pages 
in that table if the addition or deletion of line numbers under Sec.  
1026.38(t)(5)(iv)(A) is insufficient to make all required disclosures. 
This reorganization is intended to clarify that the two permissible 
modifications to the Closing Cost Details table work together. This 
reorganization is also intended to signify that the disclosure of the 
information required by Sec.  1026.38(f), (g), and (h) over two pages 
is unique to the Closing Cost Details section and to distinguish it 
from the limited permission to add additional pages to the end of the 
Closing Disclosure as clarified by comment 38(t)(5)-5. The Bureau 
believes that the reorganized Sec.  1026.38(t)(5)(iv) will alleviate 
the confusion over the special rules related to the Closing Cost 
Details. To correspond to these changes, the Bureau is renumbering 
proposed comment 38(t)(5)(v)-1 as comment 38(t)(5)(iv)-2, revising the 
reference to Sec.  1026.38(t)(5)(v)(B) and describing disclosure of 
closing cost details over two pages rather than on an additional page. 
The Bureau is also renumbering proposed comment 38(t)(5)(v)-2 as 
comment 38(t)(5)(iv)-3, noting that when closing cost details are 
disclosed over two pages, the pages should be numbered 2a and 2b, and 
adding a reference to form H-25(H) for an example of this disclosure.
    With respect to the requests for guidance regarding additional 
pages, the Bureau notes that if an additional page is permitted to be 
added to the Closing Disclosure for a required disclosure that does not 
fit in the space allocated for it on form H-25, it is specified in the 
specific sub-section of Sec.  1026.38 or its associated commentary. 
Proposed comment 38(t)(5)(x)-1 would have provided guidance regarding 
the permission to add an additional page for customary recitals and 
information. The Bureau is adopting comment 38(t)(5)(x)-1 as proposed, 
but is renumbering it as comment 37(t)(5)(ix)-1 to correspond with 
renumbered Sec.  1026.38(t)(5)(ix).
    The Bureau is adopting Sec.  1026.38(t)(5)(viii) substantially as 
proposed, except that it is renumbered as final Sec.  
1026.38(t)(5)(vii), the name of the table referred to in Sec.  
1026.38(t)(5)(vii)(B) is being revised from ``Disbursements to Others'' 
to ``Payoffs and Payments,'' with minor modifications for clarity, and 
the Bureau is noting that the modifications in Sec.  1026.38(t)(v)(vii) 
are permitted only when the alternative tables are disclosed pursuant 
to Sec.  1026.38(d)(2) and (e). The Bureau conducted consumer testing 
of revised disclosures for transactions without sellers after issuing 
the proposal and the heading ``Payoffs and Payments'' performed better 
with consumers than ``Distributions to Others.'' See Kleimann Post-
Proposal Testing Report at 71. Accordingly, the Bureau is making this 
modification to utilize plain language and to aid consumer 
understanding of the transaction, consistent with the purposes of TILA 
and RESPA. In addition, proposed Sec.  1026.38(t)(5)(viii)(C) is 
deleted, as such modifications are not permitted because the 
alternative Calculating Cash to Close table under Sec.  1026.38(e) is 
required to use this modification. Proposed Sec.  
1026.38(t)(5)(viii)(D) is adopted as final Sec.  1026.38(t)(5)(vii)(C), 
with modifications for clarity. The Bureau is also revising comment 
38(t)(5)(viii)-1 for the same reason, to clarify that the alternative 
tables pursuant to Sec.  1026.38(d)(2) and (e) are required to be 
disclosed to use the modification permitted under Sec.  
1026.38(t)(5)(vii), which comment is renumbered as 38(t)(5)(vii)-1. The 
Bureau is renumbering proposed comment 38(t)(5)(viii)-2 as final 
comment 38(t)(5)(vii)-2 and is revising it to note that the label 
``Appraised Prop. Value'' should be ``Estimated Prop. Value'' when 
there is no appraisal in a transaction without a seller for the reasons 
discussed in the section-by-section analysis of Sec.  
1026.38(a)(3)(vii).
    The Bureau did not receive any comments regarding Sec.  
1026.38(t)(5)(i) or (ii) and is adopting them as proposed except for a 
technical revision to Sec.  1026.38(t)(5)(ii) to revise a cross-
reference. For the reasons discussed in the section-by-section analysis 
of Sec.  1027.37(o)(5)(v), the Bureau is revising Sec.  
1026.38(t)(5)(iii) to permit the disclosure of administrative 
information centered at the bottom of each page of the Closing 
Disclosure, rather than in the top and right of only the first page as 
proposed. The Bureau is revising proposed Sec.  1026.37(t)(5)(iv) and 
(v) as described above and adopting them as renumbered Sec.  
1026.37(t)(5)(iv)(A) and (B). The Bureau did not receive any comments 
on proposed

[[Page 80057]]

Sec.  1026.38(t)(5)(vi) and (vii) and is adopting them as proposed 
except that they are renumbered as Sec.  1026.39(t)(5)(v) and (vi), 
respectively. The Bureau is adopting proposed Sec.  1026.38(t)(5)(viii) 
for transactions without a seller as revised for the reasons discussed 
above and renumbered as Sec.  1026.38(t)(5)(vii). The Bureau did not 
receive any comments on proposed Sec.  1026.38(t)(5)(x) and is adopting 
it as proposed but renumbered as Sec.  1026.38(t)(5)(ix).
    Comments regarding proposed Sec.  1026.38(t)(5)(ix), which would 
have permitted creditors to translate the Closing Disclosure into other 
languages, are discussed in the section-by-section analysis of Sec.  
1026.37(o)(5)(iv). The Bureau is finalizing proposed Sec.  
1026.38(t)(5)(ix) substantially as proposed, except that it is 
renumbering it as Sec.  1026.38(t)(5)(viii) and is modifying the 
provision to provide clarity regarding the modifications permitted to 
form H-25 to accommodate the translation into a language other than 
English. Final Sec.  1026.38(t)(5)(viii) permits creditors to modify 
form H-25 to the extent that translation prevents the headings, 
headings, labels, designations, and required disclosure items under 
Sec.  1026.38 from fitting in the space provided on form H-25. The 
Bureau is also adding comment 38(t)(5)-7 to provide additional guidance 
regarding the modifications to form H-25 that are permitted to 
accommodate translation of the Closing Disclosure into languages other 
than English.
    The Bureau did not receive comments on proposed comments 38(t)(5)-
1, -2, -4, and -6 and is adopting them as proposed, except that comment 
38(t)(5)-1 is revised slightly for clarity and comment 38(t)(5)-2 is 
revised for clarity to delete the reference to the electronic, machine 
readable format requirement proposed as Sec.  1026.25 because the 
proposed requirement to retain records in an electronic, machine 
readable format is not being adopted in this final rule. The Bureau is 
also removing proposed comment 38(t)(5)-3 because the guidance provided 
in that comment has been incorporated into final comment 38(r)-1. The 
Bureau is adopting proposed comments 38(t)(5)-5 with respect to 
additional pages as revised for the reasons discussed above. The Bureau 
is adopting proposed comments 38(t)(5)(iv)-1 and 38(t)(5)(v)-1 and -2 
with respect to Closing Cost Details as revised for the reasons 
discussed above and renumbered as comments 38(t)(5)(iv)-1, -2, and -3. 
The Bureau is adopting proposed comments 38(t)(5)(viii)-1 substantially 
as proposed with a minor modification for clarity but renumbered as 
38(t)(5)(vii)-1. The Bureau is adopting proposed comment 
38(t)(5)(viii)-2 with respect to transactions without a seller as 
revised for the reasons discussed above and renumbered as comment 
38(t)(5)(vii)-2. The Bureau is adopting proposed comment 38(t)(5)(x)-1 
as proposed except that it is renumbered as comment 38(t)(5)(ix)-1. The 
Bureau is also adding comment 38(t)(5)-3 to provide additional guidance 
regarding the modification of unit-periods disclosed on the Closing 
Disclosure, and to clarify that the term ``unit-period'' as used in 
Sec.  1026.38 has the same meaning as in appendix J to Regulation Z.
Section 1026.39 Mortgage Transfer Disclosures
    TILA section 131(g) and Sec.  1026.39 of Regulation Z currently 
require the creditor that is the new owner or assignee of a mortgage 
loan to notify the consumer of the sale or transfer of a mortgage loan 
no later than 30 days after the date on which the new owner/assignee 
acquired the loan.\304\ These requirements apply to open- and closed-
end consumer credit transactions that are secured by consumers' 
principal dwellings.\305\ Section 1414(d) of the Dodd-Frank Act amended 
TILA section 129C to impose additional disclosure requirements on new 
owners or assignees of residential mortgage loans. Specifically, 
section 129C(h) requires a person who becomes a creditor of an existing 
``residential mortgage loan'' to disclose the following regarding 
partial payments: (i) the creditor's policy regarding the acceptance of 
partial payments; and (ii) if they are accepted, how such payments will 
be applied to the mortgage loan, and if such payments will be placed in 
escrow. 15 U.S.C. 1639c(h). This requirement is in addition to the 
identical disclosure required before settlement that was added to TILA 
by section 1414(d) of the Dodd-Frank Act, which the Bureau proposed to 
implement in proposed Sec.  1026.38(l)(5) pursuant to its authority 
under TILA section 105(a), as described above.
---------------------------------------------------------------------------

    \304\ 75 FR 58489 (Sept. 24, 2010). The Bureau restated Sec.  
226.39 as Sec.  1026.39. 76 FR 79768 (Dec. 22, 2011).
    \305\ On May 20, 2009, the Helping Families Save Their Homes Act 
of 2009 was signed into law. Public Law 111-22, 123 Stat. 1632 
(2009). Section 404(a) of the Helping Families Save Their Homes Act 
of 2009 amended TILA to establish a new requirement in TILA section 
131(g) for notifying consumers of the sale or transfer of their 
mortgage loans for consumer credit transactions secured by the 
principal dwelling of a consumer. The creditor that is the new owner 
or assignee of the mortgage loan must provide the required 
disclosures no later than 30 days after the date on which it 
acquired the loan. 15 U.S.C. 1641(g). The Board implemented TILA 
section 131(g) in Regulation Z as Sec.  226.39.
---------------------------------------------------------------------------

    These new section 1414(d) partial payment disclosures apply to 
``residential mortgage loans.'' Section 1401 of the Dodd-Frank Act 
amended TILA section 103 to define ``residential mortgage loan'' as any 
consumer credit transaction that is secured by a mortgage, deed of 
trust, or other equivalent consensual security interest on a dwelling, 
or residential real property that includes a dwelling. ``Residential 
mortgage loan'' specifically excludes a consumer credit transaction 
under an open credit plan or, for purposes of certain sections of TILA, 
including TILA section 129C, timeshare plans described in section 
101(53D) of title 11 of the United States Code. 15 U.S.C. 1602(cc)(5).
Coverage and Timing of the Partial Payment Policy Disclosure
    The disclosures required by new TILA section 129C(h) and pre-
existing section 131(g) must be provided in connection with the 
transfer or assignment of a mortgage loan generally. However, the 
disclosures apply to different categories of mortgage loans. The 
requirements in TILA section 131(g) apply to both closed-end credit 
transactions and open-end home equity lines of credit that are secured 
by a consumer's principal dwelling. In contrast, TILA section 129C(h) 
applies only to closed-end credit. However, TILA section 129C(h) is not 
limited to closed-end loans secured by the consumer's principal 
dwelling. Rather, section 129C(h) applies to closed-end credit secured 
by a dwelling or residential real property with a dwelling.
    Sections 131(g) and 129C(h) also differ on the timing requirements 
for disclosures. TILA section 131(g) expressly provides that the 
disclosure must be provided no later than 30 days after the date on 
which a mortgage loan is sold or otherwise transferred or assigned. 
TILA section 129C(h), on the other hand, simply provides that a new 
creditor of an existing residential mortgage loan must disclose its 
partial payment policy at the time the person ``becomes a creditor.'' 
Thus, TILA section 129C(h) requires the disclosure when the person 
acquires the loan.
    The Bureau stated its belief in the proposal that combining and 
harmonizing the disclosures required on new ownership and partial 
payment policies would promote the informed use of credit by consumers 
and facilitate compliance by persons covered by these requirements. The 
proposal would have

[[Page 80058]]

combined the partial payment policy disclosure required after 
consummation with the mortgage loan transfer disclosure currently 
required by Sec.  1026.39. The combined disclosure would have been 
provided to consumers no later than 30 days after the loan was sold or 
transferred. The proposal would also have broadened the scope of Sec.  
1026.39 to require the loan transfer disclosure for credit transactions 
secured by all dwellings, rather than principal dwellings only. The 
Bureau believed the disclosures regarding the identity of a consumer's 
new creditor, and the new creditor's partial payment policy, would be 
just as useful to a consumer whose closed-end credit transaction is 
secured by a second or vacation home as it would to a consumer whose 
closed-end loan is secured by a principal dwelling. In addition, the 
Bureau stated that it believed that adjustment of the scope of Sec.  
1026.39 to include closed-end credit transactions secured by a dwelling 
would facilitate compliance. Covered persons would not have to 
determine whether and which disclosures would be triggered when a 
closed-end transaction secured by a dwelling is transferred.
    The Bureau also proposed to extend the scope of Sec.  1026.39 to 
include closed-end credit transactions subject to proposed Sec.  
1026.19(f) (i.e., closed-end transactions secured by real estate, other 
than reverse mortgage transactions subject to Sec.  1026.33), as well 
as closed-end transactions secured by a dwelling. This adjustment would 
have harmonized the coverage of the mortgage loan transfer disclosure, 
the post-consummation partial payment policy disclosure, and the pre-
consummation partial payment policy disclosure which extends to closed-
end transactions secured by real estate but not a dwelling. The Bureau 
explained that applying the pre- and post-consummation partial payment 
policy disclosures to the same loans would promote the informed use of 
credit, because consumers who receive the disclosure before 
consummation would be informed if the policy has changed with the new 
ownership of the loan. In addition, the Bureau stated that it believed 
disclosures regarding the identity of a consumer's new creditor, and 
the new creditor's partial payment policy, would be just as useful to a 
consumer whose closed-end consumer credit transaction is secured by 
real estate that does not include a dwelling, or non-residential real 
estate, as it would to a consumer whose closed-end loan is secured by a 
dwelling.
    This proposed adjustment to the scope of Sec.  1026.39 would not 
have excluded reverse mortgage transactions subject to Sec.  1026.33, 
as such transactions are not currently excluded from coverage under 
Sec.  1026.39 generally. However, as discussed below in the section-by-
section analysis of Sec.  1026.39, the Bureau proposed to exclude 
reverse mortgage transactions subject to Sec.  1026.33 from the 
requirement to disclose a partial payment policy in proposed Sec.  
1026.39(d)(5). In addition, the proposal's scope would not have 
excluded credit transactions relating to timeshare plans as described 
in 11 U.S.C. 101(53D), even though such timeshare transactions are 
excluded from the definition of ``residential mortgage loan'' under 
TILA section 103. The Bureau stated that it believed a new creditor's 
partial payment policy would be just as useful to a consumer whose 
closed-end credit transaction is secured by such a timeshare plan as to 
a consumer of a principal-dwelling secured transaction. It noted that 
timeshare transactions would generally be covered by proposed Sec.  
1026.19(f) as transactions secured by real estate.
    The Bureau proposed the adjustments discussed above pursuant to its 
authority under TILA section 105(a) to effectuate the purposes of TILA 
and Regulation Z and facilitate compliance with the statute. The Bureau 
stated in the TILA-RESPA Proposal its belief that this adjustment 
effectuates the purposes of TILA under TILA section 102(a), because it 
would ensure meaningful disclosure of credit terms to consumers and 
facilitate compliance with the statute. In addition, the Bureau stated 
in the proposal that it believed, consistent with section 1032(a) of 
the Dodd-Frank Act, this adjustment would ensure that the features of 
consumer credit transactions secured by real property are fully, 
accurately, and effectively disclosed to consumers in a manner that 
permits consumers to understand the costs, benefits, and risks 
associated with the product or service, in light of the facts and 
circumstances. Further, the Bureau proposed this modification of the 
disclosure requirements for residential mortgage loans based on its 
authority under Dodd-Frank Act section 1405(b), as it believed the 
modification would improve consumer awareness and understanding of 
transactions involving residential mortgage loans through the use of 
disclosures, and would be in the interest of consumers and in the 
public interest.
39(a) Scope
    For the reasons discussed above, the Bureau proposed amendments to 
Sec.  1026.39(a) to expand the coverage of the disclosures required 
when ownership of a mortgage loan is transferred to closed-end credit 
transactions secured by a dwelling or real property. The Bureau 
proposed to retain the scope for open-end credit transactions to those 
secured by the consumer's principal dwelling.
    The Bureau did not propose to change the scope of the term 
``covered person'' under Sec.  1026.39(a)(1). When the Board issued 
Sec.  1026.39 to implement TILA section 131(g), it applied the notice 
requirements to ``covered persons,'' rather than ``creditors'' as 
defined under TILA and Regulation Z.\306\ The Board took this action, 
noting that section 131(g) requires notices to be provided by a 
``creditor that is the new owner or assignee of the debt.'' \307\ The 
Board stated that Congress did not intend the word ``creditor'' in 
section 131(g) to have the same meaning as ``creditor'' under TILA and 
Regulation Z.\308\ The term ``creditor'' generally refers to a person 
to whom the credit obligation is initially made payable and that 
regularly engages in extending consumer credit. 15 U.S.C. 1602(g); 12 
CFR 1026.2(a)(17). The Board concluded that ``to give effect to the 
legislative purpose, the term `creditor' in Section 404(a) must be 
construed to refer to the owner of the debt following the sale, 
transfer or assignment, without regard to whether that party would be a 
`creditor' for other purposes under TILA or Regulation Z.'' \309\
---------------------------------------------------------------------------

    \306\ Id.
    \307\ Public Law 111-22, Sec.  404(a); 15 U.S.C. 1641(g).
    \308\ 75 FR 58489, 58490-1.
    \309\ Id.
---------------------------------------------------------------------------

    Similar to section 131(g), the post-consummation disclosure 
requirement of TILA section 129C(h) applies to ``a person becoming a 
creditor with respect to an existing residential mortgage loan.'' \310\ 
The Bureau stated in the proposal that to give effect to the 
legislative purpose of section 1414(d) of the Dodd-Frank Act, the post-
consummation disclosure requirement of TILA section 129C(h) should 
apply without regard to whether the person would be a ``creditor'' 
under TILA and Regulation Z for the same reasons cited by the Board in 
implementing TILA section 131(g).\311\ For these reasons, the Bureau 
proposed to retain the term

[[Page 80059]]

``covered person'' under Sec.  1026.39(a)(1) and its definition.
---------------------------------------------------------------------------

    \310\ 15 U.S.C. 1639c(h).
    \311\ 75 FR 58490-91.
---------------------------------------------------------------------------

Final Rule
    The Bureau did not receive comments on proposed Sec.  1026.39(a). 
Accordingly, the Bureau is adopting the amendments to Sec.  1026.39(a) 
as proposed based on the authority, and for the reasons stated in the 
proposal.
39(d) Content of Required Disclosures
    As discussed above, the Bureau stated in the proposal that it 
believed the adjustment to the scope of Sec.  1026.39 would promote the 
informed use of credit and facilitate compliance with the statute. The 
Bureau proposed amendments to Sec.  1026.39(d) to add the additional 
partial payment policy disclosure requirement of TILA section 129C(h) 
in new Sec.  1026.39(d)(5). Pursuant to its implementation authority 
under TILA Section 105(a), the Bureau proposed to integrate the timing 
of this disclosure requirement with the disclosure required by TILA 
section 131(g). The Bureau stated in the proposal that it believed 
consumers may be better informed regarding the transfer of ownership of 
their mortgage loans if the required disclosures integrated the 
information applicable to the new creditor into one single disclosure, 
rather than consumers having to receive separate mailings at different 
times. In addition, the Bureau stated its belief that, consistent with 
section 1032(a) of the Dodd-Frank Act, the integration of these 
disclosure requirements would ensure that the features of consumer 
credit transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances.
    The proposed amendments to Sec.  1026.39(d) would have also 
required the mortgage transfer disclosure for credit transactions that 
are mortgage loans for purposes of Sec.  1026.39, except that the 
partial payment policy disclosure under proposed Sec.  1026.39(d)(5) 
would only have been required for mortgage loans that are closed-end 
consumer credit transactions secured by a dwelling or real property 
other than reverse mortgage transactions subject to Sec.  1026.33. The 
Bureau believed that this integrated mortgage transfer disclosure would 
also facilitate compliance with the statute. Covered persons would have 
to analyze the timing requirements and scope of only one transfer 
disclosure, rather than two separate disclosures for one transfer of a 
mortgage loan. The Bureau stated that it would not require the partial 
payment policy disclosure under proposed Sec.  1026.39(d)(5) for open-
end credit transactions and closed-end reverse mortgage transactions 
subject to Sec.  1026.33. The partial payment policy disclosure 
required by TILA section 129C(h) is not required for open-end credit 
transactions. The pre-consummation partial payment policy disclosure 
set forth in proposed Sec.  1026.38(l)(5) for loans subject to proposed 
Sec.  1026.19(f) would not be required for closed-end credit reverse 
mortgage transactions subject to Sec.  1026.33. Reverse mortgage 
transactions do not require consumers to make regular periodic payments 
to the creditor. Requiring the disclosure in these transactions would 
not have been practical. The Bureau stated in the proposal that it 
believed excluding reverse mortgage transactions from the partial 
payment policy disclosure in Sec.  1026.39(d)(5) would be appropriate 
and facilitate compliance with the statute.
    The proposed amendments also would have added comment 39(d)-2, 
which would have clarified that the partial payment policy disclosure 
is required only for closed-end mortgage loans secured by a dwelling or 
real property, other than reverse mortgage transactions subject to 
Sec.  1026.33. Proposed comment 39(d)(5)-1 would have clarified that 
covered persons are permitted to use the format for the disclosure that 
is illustrated in proposed form H-25 of appendix H to Regulation Z for 
the information required to be disclosed by proposed Sec.  
1026.38(l)(5), with appropriate modifications that do not affect the 
substance, clarity, or meaningful sequence of the disclosure.
    The Bureau received one comment on the amendments to Sec.  
1026.39(d) from a GSE, which also provided comments to the Bureau's 
proposed pre-consummation partial payment policy disclosure set forth 
in Sec.  1026.38(l)(5). The GSE opposed the proposed requirement to 
make persons subject to Sec.  1026.39 provide the partial payment 
policy disclosure required by TILA section 129C(h) at the time when the 
ownership of a mortgage loan is transferred. It stated that the loan 
servicer, not the loan purchaser, such as a mortgage investor, decides 
whether or not to accept partial payments.
    The GSE commenter stated that it believed consumers would likely be 
frustrated and confused if they received information about the 
acceptance of partial payments from an entity, such as an investor, 
that is not capable of accepting partial payments. The GSE commenter 
requested that the Bureau require that servicers, instead of ``covered 
persons'' under Sec.  1026.39, provide the partial payment policy 
notice in a separate transmittal. The GSE commenter further suggested 
limiting the requirement to provide the partial payment policy notice 
to situations where the servicer has a policy of not accepting any 
partial payments, so as to avoid the confusion that may arise from any 
truncated description of the servicer's policy. The Bureau did not 
receive comments on the other aspects of the proposed amendments to 
Sec.  1026.39(d) and related commentary.
    As discussed above in the section-by-section analysis of Sec.  
1026.38(l)(5), the Bureau recognizes that the ownership of a mortgage 
loan post-consummation and the servicing of the loan can be bifurcated. 
Additionally, the transfer of a mortgage loan's ownership may not 
coincide with the transfer of the loan's servicing rights. Although 
collecting and allocating payments are typically the duties of a 
servicer, TILA section 129C(h) clearly establishes a disclosure 
obligation on the new creditor of an existing mortgage loan. For the 
reasons discussed, the Bureau interprets the reference to ``creditor'' 
in TILA section 129C(h) to mean the owner of the loan. Regulation Z 
currently implements the same reference in TILA section 131(g) to 
``creditor'' to mean the owner of the loan. The Bureau believes that 
integrating the partial payment policy disclosure with the existing 
mortgage transfer disclosures required by current Sec.  1026.39 
benefits consumers and persons subject to Sec.  1026.39.
    For the reasons discussed above, the Bureau is finalizing the 
amendments to Sec.  1026.39(d) and its commentary substantially as 
proposed, with revisions to enhance clarity. The Bureau is adopting the 
amendment to current Sec.  1026.39(d) as proposed, which provides that 
the partial payment policy disclosure required by Sec.  1026.39(d)(5) 
is not required for open-end credit transactions and closed-end credit 
reverse mortgage transactions subject to Sec.  1026.33. The final rule 
adds the additional partial payment policy disclosure requirement of 
TILA section 129C(h) to the disclosures required by current Sec.  
1026.39(d)(5). In situations where the servicing of a mortgage loan 
transfers to a covered person upon such covered person becoming a new 
creditor with respect to the loan, the covered person will have to 
disclose whether it accepts partial payments in accordance with final 
Sec.  1026.39(d)(5). If the covered person becoming a new creditor will 
not also be the servicer, the new creditor will have to make 
arrangements with

[[Page 80060]]

the servicer to ensure that the consumer receives the disclosures 
required by Sec.  1026.39(d)(5).
    As discussed above, the post-consummation partial payment policy 
disclosure requirement of TILA section 129C(h) is identical to the 
partial payment policy disclosure required before consummation. The 
Bureau is adopting the partial payment policy disclosure required 
before consummation in Sec.  1026.38(l)(5) pursuant to its authority 
under TILA section 105(a), Dodd-Frank Act section 1032(a), and for 
residential mortgage loans, Dodd-Frank Act section 1405(b), as 
described above in the section-by-section analysis of Sec.  
1026.38(l)(5). For reasons discussed in the section-by-section analysis 
of Sec.  1026.38(l)(5), the Bureau is revising the disclosures proposed 
in Sec.  1026.38(l)(5) in adopting that section. Accordingly, the 
Bureau is adopting Sec.  1026.39(d)(5), and comments 39(d)-2 and 
39(d)(5)-1 substantially as proposed, to conform the disclosures in 
final Sec.  1026.39(d)(5) to the disclosures in Sec.  1026.38(l)(5).
    The Bureau adopts the amendments to Sec.  1026.39(d) pursuant to 
its authority under TILA section 105(a), Dodd-Frank Act section 
1032(a), and for residential mortgage loans, Dodd-Frank Act section 
1405(b). The Bureau believes that consumers will be better informed 
regarding the transfer of ownership of their mortgage loans if the 
required disclosures integrate the information applicable to the new 
creditor into one single disclosure provided at one time. In addition, 
consistent with section 1032(a) of the Dodd-Frank Act, the integration 
of these disclosure requirements would ensure that the features of 
consumer credit transactions secured by real property are fully, 
accurately, and effectively disclosed to consumers in a manner that 
permits consumers to understand the costs, benefits, and risks 
associated with the product or service, in light of the facts and 
circumstances. Further, for reasons described above in the section-by-
section analysis of Sec.  1026.38(l)(5), the Bureau believes that the 
modification made to the statutory requirement to disclose how a 
consumer's partial payments will be applied to the consumer's account, 
and whether any penalties will apply, will improve consumer awareness 
and understanding of transactions involving residential mortgage loans 
through the use of disclosures. The modifications will also be in the 
interest of consumers and in the public interest.
Appendix D--Multiple Advance Construction Loans
    Currently, appendix D to Regulation Z provides guidance concerning 
the disclosure of multiple-advance construction loans, including such 
loans that may be permanently financed by the same creditor. Dodd-Frank 
Act section 1032(f) requires that the Bureau propose rules and forms 
that combine the disclosures required under TILA and RESPA sections 4 
and 5 into a single, integrated disclosure for mortgage loan 
transactions covered under TILA and RESPA. Proposed revisions to part 
II of appendix D would have excluded loans that are subject to Sec.  
1026.19(e) and (f) from the guidance provided under paragraph A.1 of 
part II, but would have included those loans in the guidance provided 
under paragraph A.2 of part II. Proposed revised comment app. D-6 would 
have clarified that some home construction loans that are secured by a 
dwelling are subject to Sec.  1026.18(s) and not Sec.  1026.18(g), with 
a reference to proposed comment app. D-7. One illustration of the 
application of appendix D to transactions subject to Sec.  1026.18(s) 
also would have clarified that, where interest is payable on the amount 
actually advanced for the time the amount is outstanding, the 
construction phase must be disclosed pursuant to appendix D, part 
II.C.1, and the interest rate and payment summary table disclosed under 
Sec.  1026.18(s) in such cases must reflect only the permanent phase of 
the transaction.
    Proposed comment app. D-7 would have clarified that some home 
construction loans that are secured by real property are subject to 
Sec. Sec.  1026.37(c) and 1026.38(c) and not Sec.  1026.18(g). Under 
Sec.  1026.17(c)(6)(ii), when a multiple-advance construction loan may 
be permanently financed by the same creditor, the construction phase 
and the permanent phase may be treated as either one transaction or 
more than one transaction. Two illustrations would have further 
clarified the application of appendix D to transactions subject to 
Sec. Sec.  1026.37(c) and 1026.38(c).
    The first illustration would have clarified that, if a creditor 
elects pursuant to Sec.  1026.17(c)(6)(ii) to disclose the construction 
and permanent phases as separate transactions, the construction phase 
must be disclosed according to the rules in proposed Sec. Sec.  
1026.37(c) and 1026.38(c). Under proposed Sec. Sec.  1026.37(c) and 
1026.38(c), the creditor would have been required to disclose the 
periodic payments during the construction phase in the projected 
payments table. The provision in appendix D, part I.A.3, which allows 
the creditor to omit the number and amounts of any interest payments 
``in disclosing the payment schedule under Sec.  1026.18(g)'' would not 
have applied because the transaction would have been governed by 
Sec. Sec.  1026.37(c) and 1026.38(c) rather than Sec.  1026.18(g). The 
creditor would have determined the amount of the interest only payment 
to be made during the construction phase using the assumption in 
appendix D, part I.A.1. Also, because the construction phase would be 
disclosed as a separate transaction and its terms would not repay all 
principal, the creditor would have been required to disclose the 
construction phase transaction as a balloon product, pursuant to 
proposed Sec. Sec.  1026.37(a)(10)(ii)(D) and 1026.38(a)(5)(iii), in 
addition to reflecting the balloon payment in the projected payments 
table.
    The second illustration would have clarified that, if the creditor 
elects to disclose the construction and permanent phases as a single 
transaction, the repayment schedule must be disclosed pursuant to 
appendix D, part II.C.2. Under proposed appendix D, part II.C.2, the 
projected payments table would have been required to reflect the 
interest only payments during the construction phase in a first column, 
followed by the appropriate column(s) reflecting the amortizing 
payments for the permanent phase. The creditor would have determined 
the amount of the interest only payments to be made during the 
construction phase using the assumption in appendix D, part II.A.1.
    Several national trade association commenters representing the 
financial services industry stated that requiring that the integrated 
disclosures be used to disclose the terms of construction loans to 
consumers could affect the availability of construction loans. The 
integrated disclosure requirements of this final rule apply to 
construction loans. The scope of the integrated disclosure requirements 
is discussed above in the section-by-section analysis of Sec.  1026.19.
    Several industry commenters also stated that additional examples 
would be helpful for implementation. The extent to which the Bureau 
believes samples of construction loans are necessary is discussed below 
under the section-by-section analysis of appendix H to Regulation Z. 
The Bureau received no other comments on the proposed amendments to 
appendix D. Accordingly, the Bureau is adopting the revisions to part 
II of appendix D and comments app. D-6 and D-7 as

[[Page 80061]]

proposed with minor modifications to provide clarity.
    The Bureau is exercising its authority under TILA section 105(a) 
and Dodd-Frank Act section 1405(b) to amend appendix D to Regulation Z 
by revising the guidance provided in appendix D and the commentary to 
the appendix to assist in the integration of these disclosures. In 
addition to effectuating the mandate in Dodd-Frank Act sections 
1032(f), 1098, and 1100A to integrate the mortgage loan disclosure 
requirements under TILA and RESPA, the Bureau believes that these 
revisions are necessary and proper to effectuate the purposes of TILA 
by promoting the informed use of credit because the proposed revisions 
assist consumers' understanding of their legal obligations to the 
creditor. In addition, consistent with section 1405(b) of the Dodd-
Frank Act, these revisions will improve consumer awareness and 
understanding of transactions involving residential mortgage loans and 
are, therefore, in the interest of consumers and the public.
Appendix H--Closed-End Forms and Clauses
    The Bureau proposed to add forms H-24, H-25, H-26, and H-27 to 
appendix H to Regulation Z. Forms H-24 and H-25 would have provided 
blank forms for the Loan Estimate and Closing Disclosure illustrating 
the inclusion or exclusion of information as required, prohibited, or 
applicable under Sec. Sec.  1026.37 and 1026.38. In addition, form H-24 
would have provided examples of completed Loan Estimates in whole or in 
relevant part for a fixed rate transaction, an interest only adjustable 
rate transaction, a refinance with a prepayment penalty, a loan with a 
balloon payment, and a loan with negative amortization. Form H-25 would 
have provided examples of completed Closing Disclosures in whole or in 
relevant part for a fixed rate transaction, a purchase transaction with 
funds from a second loan, a transaction in which a second loan is 
satisfied outside of closing, samples of a refinance transaction, and 
examples of the modifications to the Closing Disclosure permitted 
pursuant to proposed Sec.  1026.38(t)(5)(v) through (viii).
    The Bureau proposed forms H-24 and H-25 pursuant to the authority 
and for the reasons described above in the section-by-section analysis 
of Sec. Sec.  1026.37(o) and 1026.38(t). Specifically, the Bureau 
proposed forms H-24 and H-25 as standard forms that would have been 
required for transactions that were subject to proposed Sec.  
1026.19(e) and (f) and were federally related mortgage loans, as 
defined in Regulation X. For transactions that were subject to proposed 
Sec.  1026.19(e) and (f) but were not federally related mortgage loans, 
the forms in H-24 and H-25 would have been models for compliance with 
the applicable requirements of Sec. Sec.  1026.19, 1026.37, and 
1026.38. For these transactions, the Bureau also proposed these forms 
pursuant to its authority to publish model forms under TILA section 
105(b) and (c).
    Transactions subject to proposed Sec.  1026.19(e) would have been 
subject to additional disclosure requirements under proposed Sec.  
1026.19(e)(1)(vi), (2)(ii), and (3)(ii)(C). Proposed form H-26 would 
have provided a model form for compliance with the statement required 
by proposed Sec.  1026.19(e)(2)(ii) when a creditor provides a written 
estimate of terms or costs specific to a consumer before the consumer 
receives the disclosures required under Sec.  1026.19(e)(1)(i) and 
indicates intent to proceed with the transaction. Consistent with 
proposed Sec.  1026.19(e)(2)(ii), this statement would have been 
required to be placed at the top of the front of the first page of the 
estimate in a font size that is no smaller than 12-point font.
    Proposed form H-27(A) would have provided a model form for the 
written list of settlement service providers required by proposed Sec.  
1026.19(e)(1)(vi) and the statement required by Sec.  
1026.19(e)(3)(ii)(C) that the consumer may select a settlement service 
provider that is not on the list. Proposed forms H-27(B) and (C) would 
have been samples for this form. The Bureau proposed forms H-26 and H-
27 pursuant to its authority to publish model forms under TILA section 
105(b) and (c). The Bureau also proposed to make conforming amendments 
to samples H-13 and H-15 and their associated comments pursuant to its 
authority to publish model forms under TILA section 105(b) and (c).
    The Bureau noted in the proposal that, during the Small Business 
Review Panel, several small business representatives requested that the 
Bureau provide detailed guidance on how to complete the integrated 
forms, including, as appropriate, samples of completed forms for a 
variety of loan transactions. See Small Business Review Panel Report at 
28. Similar feedback was also submitted by several industry trade 
associations in response to the Small Business Review Panel Outline. 
Based on this feedback and consistent with the Small Business Review 
Panel's recommendation, the Bureau proposed the examples described 
above, which, of course, added significant length to the proposed rule. 
The Bureau sought comment on whether the number and types of examples 
are beneficial to industry or whether certain examples should be added 
to or deleted from the rule, including sample forms in other languages, 
such as Spanish.
    The Bureau also received feedback from industry stakeholders during 
its outreach prior to issuing the proposal that samples of a 
construction-only transaction and a transaction with both a 
construction and permanent financing phase would be beneficial to 
industry. The Bureau proposed amendments to appendix D to Regulation Z 
and its commentary, as described above, that related to such 
construction financing and would have provided guidance regarding its 
disclosure on the proposed integrated disclosures. The Bureau did not 
propose samples for construction financing because it believed that 
proposed forms H-24(C) and (E) would have provided the necessary 
illustration for such financing, because these samples would have 
contained the interest only period and final balloon payment, 
respectively, which, as described above, are product features that 
would be disclosed in connection with such construction financing. The 
Bureau noted in the proposal that one difference for the disclosure of 
such financing would have been that the purpose of the transaction 
disclosed under proposed Sec. Sec.  1026.37(a)(9) and 1026.38(a)(5)(ii) 
would have been ``Construction.'' The Bureau sought comment on whether, 
in light of the proposed amendments to appendix D and its commentary, 
additional samples for a construction-only or construction with 
permanent financing would be beneficial to industry.
Comments
    The Bureau received comments addressing the samples in the proposal 
from industry trade associations, consumer advocacy groups, settlement 
agents, escrow agents, document service providers, and other industry 
participants. Commenters generally requested more samples and guidance 
in appendix H, rather than less. Several commenters requested that 
additional samples be added to appendix H, such as samples of 
construction financing. Several industry trade associations 
representing creditors requested clarification regarding how the 
variations provided by proposed blank forms H-24(A) and H-25(A) relate 
to the proposed rule. The industry trade associations requested that 
the Bureau explain how the amounts and formats were the appropriate 
ones under the specific sections and commentary

[[Page 80062]]

provision of the proposed rule, including a comprehensive outline of 
the facts underlying each example.
    Industry trade associations also requested clarification regarding 
whether proposed form H-25(J) would be permitted under the proposed 
rule to be used in all transactions that do not involve a seller. The 
trade associations also commented that such transactions may involve 
charges that would fall under ``Adjustments and Other Credits'' that 
are required to be disclosed under proposed Sec.  1026.38(e), but 
proposed form H-25(J) does not illustrate how to factor such charges 
into the Cash To Close figure. One community bank commenter expressed 
concern that neither the model nor the sample Closing Disclosure forms 
provided an example where an escrow account had not been established in 
connection with the transaction. It asserted that creditors would need 
such an example to comply with proposed Sec.  1026.38(l)(7).
    A State industry trade association representing banks commented 
regarding proposed form H-26(B) that its member banks would prefer to 
use their own version of a consumer-specific worksheet, rather than one 
with a similar format as the proposed Loan Estimate. The trade 
association requested clarification regarding whether the use of their 
own consumer-specific worksheets would be permitted under the proposed 
rule. Consumer advocacy groups expressed concern that permitting the 
use of a worksheet using the proposed Loan Estimate disclosure form 
before the loan application is made would cause consumers to confuse 
the worksheet with the Loan Estimate, even with the required disclaimer 
under proposed Sec.  1026.19(e)(2)(ii).
    A trade association representing escrow agents expressed support 
for proposed form H-25(I) that would have illustrated the modifications 
permitted by proposed Sec.  1026.38(t)(5)(vii) for a Closing Disclosure 
provided to a seller. A trade association representing banks and a 
document software company requested a clarification regarding the dates 
disclosed under the Adjustable Payment and Adjustable Interest Rate 
tables in proposed form H-24(C) under proposed Sec.  1026.37(i) and 
(j). A document software company requested a sample illustrating the 
proper treatment of an introductory interest rate and a preferred 
interest rate. The document software company also requested that the 
administrative information appearing at the bottom of proposed forms H-
24 and H-25 be removed, and that administrative information be 
expressly permitted by the regulation to appear at the bottom of the 
form.
    An industry trade association representing creditors suggested a 
revision to proposed form H-24 with respect to the expiration of cost 
estimates on the disclosures. A State trade association representing 
banks stated that the proposed illustration of the written list 
provided in proposed form H-27(B) made it unclear whether creditors are 
required to list the estimated cost for a service provider because the 
sample lists the survey fee for only one of the providers listed. An 
individual settlement agent noted inconsistencies in the samples 
regarding the alphabetizing of charges on the Loan Estimate. An 
individual escrow agent commented that the proposed samples of form H-
25 illustrate both consumer and seller information on the same 
disclosure and expressed confidentiality and privacy concerns. Several 
commenters, including industry trade associations and consumer advocacy 
groups commented that the final rule should provide sample Spanish or 
other non-English language forms, and that the Bureau should use 
consumer testing to enhance the effectiveness of such sample forms.
Discussion
    The Bureau has considered the comments regarding the proposed forms 
and samples of appendix H to Regulation Z. The comments requesting 
changes to the information required to be disclosed or clarification 
regarding the disclosure requirements under Sec. Sec.  1026.37 and 
1026.38 are discussed within their respective section-by-section 
analyses.
    Additional samples. Regarding the comments that the Bureau add 
additional samples of the Loan Estimate and Closing Disclosure to 
appendix H, the Bureau notes that it proposed sample disclosures 
illustrating a large number of disclosure requirements and variations 
permitted or required by Sec. Sec.  1026.37 and 1026.38. For example, 
the Bureau proposed samples that include a fixed rate, adjustable rate, 
interest only, refinance, balloon payment, negative amortization, a 
refinance transaction, a violation of the limitations on increases 
under Sec.  1026.19(e)(3), as well as several modifications permitted 
under proposed Sec.  1026.38(t)(5). In response to this comment, 
however, the Bureau has determined to modify several of the proposed 
samples to illustrate additional variations in the information required 
or permitted to be disclosed. For example, the Bureau has revised 
proposed form H-24(B) to illustrate the disclosure of the existence of 
a prepayment penalty in a transaction under Sec.  1026.37(b)(4). In 
addition, the Bureau has modified proposed forms H-25(E), (F), and (G) 
to illustrate the alternative tables permitted under final Sec. Sec.  
1026.37(d)(2) and (h)(2) and 1026.38(d)(2) and (e) for transactions 
without sellers.
    Specifically with respect to the comments requesting that samples 
of construction financing be added to appendix H, the Bureau has 
determined not to add such samples to appendix H. While the commenters 
noted areas in which clarification in the proposed disclosure 
requirements would facilitate compliance, the comments did not provide 
any information regarding aspects of construction financing that would 
require different disclosures than are illustrated by forms H-24(C) and 
(E). The Bureau continues to believe that forms H-24(C) and (E) provide 
sufficient illustration of disclosures for such financing, because 
these samples contain the interest only period and final balloon 
payment that would be disclosed in connection with such construction 
financing.
    The Bureau also does not believe additional samples are necessary 
to illustrate the treatment of an introductory interest rate and a 
preferred interest rate. As noted above in the section-by-section 
analysis of Sec.  1026.37(b)(2), the Bureau intended the proposed 
provision to require disclosure of an introductory interest rate. 
Accordingly, the sample forms for adjustable rate loans in the proposal 
illustrated the disclosure of an introductory interest rate, as 
applicable. In addition, clarification of the disclosure of preferred 
interest rates in the integrated disclosures is described in the 
section-by-section analyses of Sec.  1026.37(a)(10)(i)(B) and (b)(6), 
and other applicable sections for which such clarification was sought, 
and considering the clarification provided, the Bureau believes 
additional samples are unnecessary.
    Additional facts and explanations for the samples. Regarding the 
comments seeking clarification regarding how the variations provided by 
proposed blank forms H-24(A) and H-25(A) relate to the proposed rule, 
and requesting detailed explanations and facts regarding the samples, 
the Bureau believes that such explanations are unnecessary. The 
descriptions provided before each form illustrate the basic facts 
regarding the transaction and/or note the disclosure requirements being 
illustrated. The forms that provide samples of disclosures for 
particular transactions, which illustrate particular disclosures

[[Page 80063]]

required by Sec. Sec.  1026.37 and 1026.38 (i.e., the non-blank forms), 
are intended to do only that, and not to demonstrate how to comply with 
Sec. Sec.  1026.37 and 1026.38 in particular factual scenarios. The 
Bureau notes that such guidance is provided in the official commentary 
to Regulation Z. However, the Bureau understands that some additional 
details in descriptions may facilitate compliance, and thus, the Bureau 
has modified certain of the descriptions of the forms, as described 
below. The Bureau also notes that the blank model forms H-24(A), H-
24(G), H-25(A), and H-25(J) provide additional pages for the variable 
disclosure requirements under Sec. Sec.  1026.37 and 1026.38, which is 
stated in the descriptions of such forms. For example, form H-24(A) 
contains two versions of page one to reflect the two possible 
disclosures under Sec.  1026.37(a)(7)(i) and (ii); four versions of 
page two to reflect the possible permutations of the disclosures under 
Sec.  1026.37(i) and (j); and four versions of page three to include 
two pages with the variable disclosure requirements under Sec.  
1026.37(n)(1) and (2) for transactions subject to 15 U.S.C. 1639h or 
1691(e) for which the disclosure under Sec.  1026.37(m)(1) is required, 
and two such pages for which the disclosure under Sec.  1026.37(m)(1) 
is not required.
    Modifications to the Closing Disclosure. The Bureau also believes 
that clarifications regarding the proper use of proposed form H-25(J), 
which would have illustrated the modifications permitted for a 
transaction without a seller under proposed Sec.  1026.38(t)(5)(viii), 
are unnecessary within appendix H. The Bureau notes that under proposed 
Sec.  1026.38(t)(5)(viii), the modification would have been permitted 
to be used in all transactions that do not involve a seller, not only 
refinance transactions. Regarding the comment that transactions without 
sellers may involve charges that would fall under ``Adjustments and 
Other Credits'' that are required to be disclosed under proposed Sec.  
1026.38(i), the Bureau observes that such charges would have been 
disclosed under the table permitted by proposed Sec.  
1026.38(t)(5)(viii)(B). As described in the section-by-section analysis 
of Sec.  1026.38(t)(5)(vi) above, the Bureau is modifying the provision 
permitting this table in transactions without sellers to renumber the 
provision, as described above, and to revise the heading and the label 
of the total amount in the table. In addition, the Bureau is revising 
Sec.  1026.38(d) and (e) to provide for alternative Costs at Closing 
and Calculating Cash to Close tables for transactions without sellers, 
as described in their respective section-by-section analyses. The 
Bureau is making these modifications in response to comments and based 
on the Bureau's post-proposal consumer testing. For the aforementioned 
reasons, the Bureau is finalizing form H-25(J) with modifications to 
the description to reflect the renumbering of the paragraph permitting 
this modification for transactions without a seller under Sec.  
1026.38(t)(5)(vii) of this final rule, to reflect the alternative 
tables described above, and with the modifications to the format 
described above.
    Regarding the concern that form H-25 illustrates both consumer and 
seller information on the same disclosure, causing confidentiality and 
privacy concerns, the Bureau observes that proposed Sec.  
1026.38(t)(5)(vi) and (vii) permitted creditors to disclose consumer 
and seller information on separate disclosures, and permitted a version 
of the Closing Disclosure that contained only information that 
pertained to the seller. These provisions are adopted as proposed, 
renumbered as Sec.  1026.38(t)(5)(v) and (vi).
    Consumer-specific worksheets. The Bureau understands commenters' 
concerns regarding the consumer-specific worksheet illustrated in 
proposed form H-26(B). The Bureau notes that the proposal would not 
have required the use of the worksheet illustrated in form H-26(B), or 
any other particular format of consumer-specific estimate. The proposal 
only intended the sample to be an example of a consumer-specific 
estimate that had a similar format as the proposed Loan Estimate. 
However, the Bureau understands that this sample caused confusion. The 
Bureau also understands commenters' concerns that the sample, because 
of its similarity to the Loan Estimate form, would cause consumer 
confusion, even with the disclaimer required under Sec.  
1026.37(e)(2)(ii). The Bureau recognizes that receipt of a consumer-
specific estimate in format similar to form H-24, before the consumer 
receives the disclosures required under Sec.  1026.19(e)(1)(i), could 
be confusing or misleading to consumers in some circumstances. In 
addition, as discussed in the section-by-section analysis of Sec.  
1026.19(e)(2)(ii), there was some confusion from industry commenters 
regarding whether the format of the worksheet illustrated by H-26(B) 
was required. Accordingly, the Bureau is not adopting form H-26(B). The 
Bureau believes that Sec.  1026.19(e)(2)(ii) and model form H-26 in the 
final rule provide sufficient clarity regarding the requirement to 
include the specified statement on a consumer-specific estimate. In 
addition, as described in the section-by-section analysis of Sec.  
1026.19(e)(2)(ii), the Bureau is adopting in Sec.  1026.19(e)(2)(ii) a 
provision prohibiting creditors from providing a written estimate of 
terms or costs with headings, content, and format substantially similar 
to form H-24 or H-25.
    Administrative information. Regarding commenters' requests that 
administrative information be expressly permitted by the regulation to 
appear at the bottom of the form, as appeared to be illustrated by 
proposed forms H-24 and H-25, the Bureau, as described in the 
respective section-by-section analyses of Sec. Sec.  1026.37(o)(5)(v) 
and 1026.38(t)(5)(iii), is modifying the proposed provisions to permit 
the addition of administrative information at the bottom of each page. 
Accordingly, forms H-24 and H-25 will include a particular form of 
administrative information, but which is not intended to be a 
requirement that administrative information must appear as it is 
illustrated in these samples. The Bureau understands the document 
software companies and others in the industry have different forms of 
administrative information, such as footers to identify forms as 
particular versions, which may include their company name with such 
identifying information.
    Spanish language forms. As discussed in the section-by-section 
analyses of Sec. Sec.  1026.37(o)(5) and 1026.38(t)(5), and in part III 
above, in response to feedback and public comments requesting the 
Bureau include and test with consumers Spanish language versions of the 
integrated disclosures in the final rule, the Bureau is finalizing 
versions of the Loan Estimate and the Closing Disclosure translated 
into Spanish, as permitted under Sec. Sec.  1026.37(o)(5)(ii) and 
1026.38(t)(5)(viii). The Bureau conducted four rounds of qualitative 
consumer testing to ensure the effectiveness of the translations. The 
Bureau is finalizing these versions as model and sample forms H-28(A) 
through (H) of appendix H to Regulation Z. Each of these forms is a 
translated version of a specific form under forms H-24 and H-25, which 
is noted in the description of each form. Specifically, the Spanish 
language forms include: A blank model Loan Estimate and a blank model 
Closing Disclosure, which are translated versions of forms H-24(A) and 
H-25(A); a blank model Loan Estimate and a blank model Closing 
Disclosure with modifications for transactions without a seller, which 
are translated versions of forms H-24(G)

[[Page 80064]]

and H-25(J); and translations of sample forms H-24(C), H-24(D), H-
24(E), H-24(F), H-25(B), and H-25(E). While these model forms are 
translations of forms H-24 and H-25 made pursuant to Sec. Sec.  
1026.37(o)(5)(ii) and 1026.38(t)(5)(viii), they are not standard forms 
that are required to be used for federally related mortgage loans 
pursuant to Sec. Sec.  1026.37(o)(3) and 1026.38(t)(3) when the 
disclosure is translated into Spanish under Sec. Sec.  
1026.37(o)(5)(ii) and 1026.38(t)(5)(viii). Sections 1026.37(o)(5)(ii) 
and 1026.38(t)(5)(viii) permit the translation of the disclosures 
required under Sec. Sec.  1026.37 and 1026.38, but do not require a 
particular translation. Accordingly, under Sec. Sec.  1026.37(o)(3) and 
1026.38(t)(3), form H-28 is not a standard form that is required for 
Spanish language translations.
    In the proposal, the Bureau referred generally to the Loan Estimate 
and Closing Disclosure as form H-24 and form H-25, respectively, and 
the pre-disclosure disclaimer and written list of service providers as 
form H-26 and form H-27, respectively. The Bureau intended these 
references to be inclusive of all forms under these forms, including 
both the blank or sample forms. The Bureau did not receive any comments 
regarding this usage of the form numbers and thus, believes it provided 
sufficient clarity regarding the Bureau's references to the forms 
collectively. Accordingly, in this final rule, the Bureau likewise 
refers to the forms, including form H-28, collectively in this manner 
where appropriate.
Final Rule
    For the reasons discussed above, the Bureau is adopting forms H-
26(A), H-27(A), H-27(B), and H-27(C) as proposed, with minor 
modifications to the titles of the forms to clarify their status as 
model or sample forms, a minor modification for clarity to the 
directional language in the header of form H-27 to refer expressly to 
the Loan Estimate, and renumbering form H-26(A) as H-26. The Bureau is 
not adopting form H-26(B), based on comments raising concerns about the 
similarity of the format of the worksheet sample to the format of form 
H-24, and thus, form H-26 does not require a letter subdesignation. The 
Bureau is also adopting the conforming amendments to samples H-13 and 
H-15 and their associated comments as proposed.
    With respect to the Loan Estimate and Closing Disclosure, and the 
proposed samples of such disclosures for particular transactions in 
appendix H, as noted above, the Bureau is modifying the titles and 
descriptions of such forms to provide greater clarity that such forms 
are model forms under Regulation Z. Although forms H-24 and H-25 are 
model forms under Regulation Z, the Bureau notes that such forms are 
standard forms pursuant to RESPA section 19(a) authority that are 
required to be used for federally related mortgage loans pursuant to 
Sec. Sec.  1026.37(o)(3) and 1026.38(t)(3). Forms H-24(A) and (G), and 
forms H-25(A), and (H) through (J) are blank forms, and illustrate the 
required master headings, headings, subheadings, etc., that are 
required by Sec. Sec.  1026.37 and 1026.38. The other forms under H-24 
and H-25 illustrate the disclosures required under Sec. Sec.  1026.37 
and 1026.38, for particular types of transactions. For federally 
related mortgage loans, the disclosures under Sec. Sec.  1026.37 and 
1026.38 are required to be made as illustrated by such forms, including 
their formatting (e.g., using bold font where illustrated). The Bureau 
has added comment app. H-30 to add clarity regarding this issue.
    In addition, the Bureau notes, as described above, that it has 
revised the design of the disclosures based on public comment and its 
post-proposal qualitative and quantitative testing. For example, 
commenters stated that the underscoring in forms H-25 for the 
disclosures in the Security Interest and Partial Payments disclosures 
under Sec.  1026.38(l)(5) and (l)(6) would be difficult to comply with 
and decrease readability for consumers. Based on this comment, the 
Bureau has removed the underscoring in the disclosure required by Sec.  
1026.38(l)(6) from samples H-25(B), (E), (F), and (G) and instead used 
italicized font to emphasize that this text was inputted by the 
creditor. The underscoring no longer appears in the disclosure required 
by Sec.  1026.38(l)(5), because of modifications to the required 
disclosure (see the section-by-section analysis of Sec.  
1026.38(l)(5)). However, the Bureau has retained the underscoring in 
the blank model forms for the disclosure under Sec.  1026.38(l)(5) as 
well as added it for the Late Payment disclosures under Sec. Sec.  
1026.37(m)(4) and 1026.38(l)(3), to clarify that the information in the 
underscore is to be completed by the creditor. The modifications to the 
design of the Loan Estimate and Closing Disclosure for particular 
disclosures under Sec. Sec.  1026.37 and 1026.38 are discussed in more 
detail their respective section-by-section analyses. The Bureau has 
incorporated these changes into the forms included in appendix H, to 
reflect these changes in the design of the integrated disclosure. Other 
than incorporating these design changes, the Bureau is adopting forms 
H-24(A), H-24(E), H-24(F), H-25(A), H-25(B), H-25(C), H-25(D), H-25(H), 
and H-25(I) as proposed.\312\ The Bureau is making a minor modification 
to the description of H-25(B) to note that the product of the 
transaction illustrated is unchanged from the transaction illustrated 
by form H-24(B), and minor modifications to the descriptions of forms 
H-25(H) and H-25(I) to reflect the renumbering of the modifications 
permitted by Sec.  1026.38(t)(5).
---------------------------------------------------------------------------

    \312\ Form H-24(A), Sec.  1026.38(k)(2)(vi), and comment 38(r)-4 
include technical corrections from the rule issued on Nov. 20, 2013. 
The Bureau is not publishing these technical corrections for public 
notice and comment because it has good cause to believe that it 
would be unnecessary to do so. See 5 U.S.C. 553(b).
---------------------------------------------------------------------------

    The Bureau is modifying form H-24(B) to also illustrate a 
prepayment penalty, and is modifying the description to reflect that 
fact. The Bureau is also modifying the description of form H-24(C) to 
clarify that the sample illustrates an introductory interest rate, and 
to reflect certain minor modifications to the transaction illustrated. 
The Bureau is modifying form H-24(D) to provide an illustration of a 
different refinance transaction and to provide additional facts in the 
description. In addition, as described in the section-by-section 
analyses of Sec.  1026.37(d) and (h), the final rule provides for 
optional alternative Costs at Closing and Calculating Cash to Close 
tables for transactions without a seller. Accordingly, in addition to 
the blank Loan Estimate form H-24(A), the Bureau is adding a blank Loan 
Estimate form H-24(G) in appendix H, which includes the optional 
alternative tables permitted by Sec.  1026.37(d)(2) and (h)(2).
    The Bureau is modifying form H-25(E) to be related to the 
transaction illustrated by form H-24(D), as modified, and to provide 
additional detail in the description. The Bureau is also modifying form 
H-25(F) to reflect a transaction with a violation of the good faith 
estimate requirements of Sec.  1026.19(e)(3), and a refund related to 
such violation under Sec.  1026.19(f)(2)(v), and has revised the 
description accordingly. The Bureau is also modifying form H-25(G) to 
provide an illustration of a refinance transaction in which the 
consumer must pay funds at consummation, and has revised the 
description accordingly. The Bureau is modifying form H-25(J) to a 
provide a blank model form that includes the alternative Costs at 
Closing and Calculating Cash to Close tables provided under Sec.  
1026.38(d)(2) and (e), as well as the modifications under Sec.  
1026.38(t)(5)(vii).

[[Page 80065]]

    In addition, as noted in the section-by-section analysis of Sec.  
1026.20(e), the Bureau is adopting in this final rule provisions 
requiring the Post-Consummation Escrow Cancellation Disclosure required 
under TILA section 129D(j)(1)(B). Accordingly, the Bureau is adopting 
model form H-29, which can be used by creditors or servicers to comply 
with the disclosure requirements regarding the cancellation of an 
escrow account established in connection with a closed-end transaction 
secured by a first lien on real property or a dwelling, which are 
adopted in Sec.  1026.20(e). The Bureau is also adopting comment app. 
H-29, as proposed by the Board in the Board's 2011 Escrows Proposal, 
with modifications to apply the comment specifically to model form H-
29. The Board received comments regarding the content and format of the 
Board's proposed form for the Post-Consummation Escrow Cancellation 
Disclosure. As discussed in the section-by-section analysis of Sec.  
1026.20(e), the Bureau has reviewed those comments and incorporated 
them into its design of model form H-29, which is also based on the 
content and format of the Pre-Consummation Escrow Establishment 
Disclosure and the Pre-Consummation Escrow Waiver Disclosure that the 
Bureau is implementing in this final rule under Sec.  1026.38(l)(7), 
which was developed using extensive consumer testing, to ensure the two 
disclosures present information in a similar manner for consumers. At 
the Bureau's consumer testing, consumer participants were able to 
understand the escrow accounts that would be established in connection 
with the transaction, and the consequences of waiving such an escrow 
account. See Kleimann Testing Report at 223. Accordingly, the Bureau 
believes the language and format of model form H-29 will be effective 
in aiding consumer understanding of the consequences of the 
cancellation of their escrow accounts. Accordingly, the Bureau is 
adopting model form H-29 and the Board's proposed comment app. H-29, 
with modifications to apply the comment specifically to model form H-
29. Comment app. H-29.i states that the model form illustrates, in the 
tabular format, the disclosures required by Sec.  1026.20(e). Comment 
app. H-29.ii specifies that a creditor satisfies Sec.  1026.20(e) if it 
provides model form H-29, or a substantially similar notice, which is 
properly completed with the disclosures required by Sec.  1026.20(e). 
Comment app. H-29.iii and app. H-29.iv provide guidance regarding the 
formatting requirements. Comment app. H-29.v clarifies that creditors 
and servicers may use color, shading and similar graphic techniques 
with respect to the notice, so long as the notice remains substantially 
similar to model form H-29.
    As noted above, the Bureau is also adopting several Loan Estimates 
and Closing Disclosures translated into the Spanish language. The 
Bureau is adopting model forms H-28(A), H-28(F), H-28(I), and H-28(J), 
which are Spanish translations of the blank Loan Estimate and Closing 
Disclosure model forms H-24(A), H-25(A), H-24(G), and H-25(J), as is 
permitted under Sec. Sec.  1026.37(o)(5)(ii) and 1026.38(t)(5)(viii), 
respectively. The Bureau is also adopting sample forms H-28(B), H-
28(C), H-28(D), and H-28(E), which are Spanish language translations of 
the Loan Estimate sample forms H-24(C), H-24(D), H-24(E), and H-24(F), 
respectively, as is permitted under Sec.  1026.37(o)(5)(ii). In 
addition, the Bureau is also adopting sample forms H-28(G) and H-28(H), 
which are Spanish language translations of the Closing Disclosure 
sample forms H-25(B) and H-25(E), respectively, as is permitted under 
Sec.  1026.38(t)(5)(viii). Forms H-28(A) through H-28(J) are model 
forms under Regulation Z. However, unlike forms H-24(A), H-24(C), H-
24(D), H-24(E), H-24(F), H-24(G), H-25(A), H-25(B), H-25(E), and H-
25(J), they are not required standard forms for federally related 
mortgage loans under Sec. Sec.  1026.37(o)(3) and 1026.38(t)(3). 
Accordingly, for federally related mortgage loans, they are not 
required to be used.
    As noted above, the Bureau is adopting forms H-24, H-25, H-26, H-
27(A), and H-28 including the forms H-24(B) through (F), H-25(B) 
through (G), and H-28(B) through (H) (which are sample forms 
illustrating the disclosures required by Sec. Sec.  1026.37 and 1026.38 
for particular transactions), as model forms. To provide greater 
clarity regarding the model form status of forms H-24, H-25, H-26, H-
27, and H-28, the Bureau is amending comment app. G and H-1 to list 
forms H-24, H-25, H-26, H-27, and H-28 as model forms for which the 
formatting changes listed in the comment are not permitted. The Bureau 
believes this revision to comment app. G and H-1 will facilitate 
compliance with the disclosure requirements of this final rule, which 
is one of the purposes of the integrated disclosure requirements set 
forth by the Dodd-Frank Act. The Bureau is adopting these forms 
pursuant to its authority to publish model forms under TILA section 
105(b) and (c). In addition, the Bureau adopts the aforementioned 
forms, samples, and descriptions in appendix H to Regulation Z pursuant 
to its mandate to publish integrated disclosures under Dodd-Frank Act 
sections 1098 and 1100A, implementation authority of TILA section 
105(a), and RESPA section 19(a). The Bureau believes the extensive 
forms (many of which illustrate particular disclosures required under 
Sec. Sec.  1026.37 and 1026.38 for particular product types), and 
descriptions adopted in appendix H for the integrated disclosures will 
further the purposes of the integrated disclosures, as stated by Dodd-
Frank Act sections 1098 and 1100A, to aid consumer understanding and 
facilitate compliance with the disclosure requirements. The Bureau 
believes that the extensive forms and descriptions the Bureau is 
adopting for the integrated disclosures will assist industry in 
complying with the disclosure requirements of Sec. Sec.  1026.37 and 
1026.38, which in turn, will assist consumers in understanding their 
transactions, because they will help ensure their disclosures are 
completed in compliance with the regulations. The Bureau believes the 
adopted forms and descriptions effectuate the purposes of TILA and 
RESPA, as they will ensure a meaningful disclosure of credit terms to 
consumers and promote the informed use of credit and more effective 
advance disclosure to home buyers and sellers of settlement costs. In 
addition, consistent with section 1032(a) of the Dodd-Frank Act, the 
Bureau believes they will ensure that the features of consumer credit 
transactions secured by real property are fully, accurately, and 
effectively disclosed to consumers in a manner that permits consumers 
to understand the costs, benefits, and risks associated with the 
product or service, in light of the facts and circumstances.

VI. Effective Date

A. The Bureau's Proposal

    As discussed in part I above, the Bureau is adopting rules and 
disclosures that combine the pre-consummation disclosure requirements 
of TILA and sections 4 and 5 of RESPA. The Dodd-Frank Act does not 
impose a deadline for issuing final rules and disclosures in connection 
with its mandate to integrate disclosure requirements or provide a 
specific amount of time for entities subject to those rules to come 
into compliance. As also discussed in part II.E, above, the Dodd-Frank 
Act establishes two goals for the TILA-RESPA mortgage disclosure 
integration: To improve consumer understanding of mortgage loan 
transactions; and to facilitate industry compliance with

[[Page 80066]]

TILA and RESPA. Dodd-Frank Act sections 1098 and 1100A. In addition, 
TILA section 105(d) generally provides that a regulation requiring any 
disclosure that differs from the disclosures previously required shall 
have an effective date no earlier than ``that October 1 which follows 
by at least six months the date of promulgation,'' except that the 
Bureau may at its discretion lengthen the period of time permitted for 
creditors or lessors to adjust their forms to accommodate new 
requirements. 15 U.S.C. 1604(d). The Bureau must balance these 
statutory objectives and requirements in considering the length of the 
implementation period.
    Because the final rule will provide important benefits to 
consumers, the Bureau seeks to make it effective as soon as 
realistically possible. However, the Bureau understands that the final 
rule will require creditors, mortgage brokers, and settlement agents to 
make extensive revisions to their software, to change their dealings 
and information sharing practices with each other and other settlement 
service providers, and to retrain their staffs. In addition, some 
entities will be required to implement other Dodd-Frank Act provisions, 
which are subject to separate rulemaking deadlines under the statute 
and have separate effective dates. Therefore, the Bureau solicited 
comment on when the final rule should be effective. In particular, the 
Bureau sought comment on how much time industry needs to make these 
changes, and specifically requested details on the required updates and 
changes to systems and other measures that would be required to 
implement the rule and the amount of time needed to make those changes.
    Furthermore, in light of the feedback provided by small entity 
representatives during the SBREFA process, as reflected in the Small 
Business Review Panel Report, the Bureau solicited comment on whether 
small entities affected by the rule should have more time to comply 
with the final rule than larger entities. In soliciting comment on this 
issue, however, the Bureau noted its concern that a bifurcated 
implementation period could be detrimental to consumers. During any 
period where only larger entities must comply with the final rule, 
consumers potentially would receive different disclosures and be 
subject to different sets of consumer protections depending on their 
choice of creditor, mortgage broker, or settlement agent. In addition, 
larger entities that are subject to the final rule and that purchase 
loans from small entities may nevertheless insist that small entities 
comply with the final rules. Accordingly, the Bureau solicited comment 
on whether any separate compliance period for larger entities should 
take into account the relationship between larger and smaller entities.

B. Comments

    In response to the proposed rule, the Bureau received many comments 
concerning the effective date and implementation period. While consumer 
advocacy groups did not submit comments on the topic, a large number of 
industry commenters addressed the issue in detail. The spectrum of 
timing suggestions for the implementation period ranged from one 
industry commenter that suggested 12 months, many commenters that 
advocated for 18 to 24 months, and one industry commenter that 
suggested 36 months. No commenters provided statistical data to support 
their arguments, though a number of commenters described their 
experiences in implementing other recent mortgage initiatives such as 
HUD's earlier changes to the disclosure forms under RESPA. Industry 
commenters also commented on other aspects of the implementation period 
and the effective date, including providing suggestions for Bureau 
assistance during the implementation period and the applicability of 
the effective date to entities of different sizes.
Implementation Period
    The lone industry commenter to argue that industry could 
successfully implement the final rule within 12 months asserted that 
such a period should be more than sufficient for industry to implement 
the new disclosures and update technology and software programs, as the 
current disclosure forms are already implemented in all loan 
origination software and could be updated quickly. The vast majority of 
commenters however, urged an implementation period of at least 18 to 24 
months to implement the many changes in the final rule.
    Commenters argued that there are many major rulemakings that will 
affect disclosures, including the Title XIV Rulemakings that were 
issued by the Bureau in January 2013, and that as a result, the 
mortgage industry is facing major regulatory amendments in almost every 
area. According to these commenters, while it is difficult to predict 
all of the compliance challenges posed by the intertwined mortgage 
reforms, the unprecedented scope and broad impact of these new 
requirements will force creditors and servicers to define and implement 
new business models that are sustainable in this changed regulatory 
environment. These commenters argued that creditors could seek to 
eliminate operational risk through scaling back or discontinuing their 
lending activities if the duration of the implementation period is 
insufficient, which would be harmful to both consumers and the 
industry.
    Various commenters also noted that, unlike the Title XIV 
Rulemakings, Congress did not provide an issuance date or 
implementation date for the integrated disclosures final rule, so they 
argued that this weighs in favor of providing sufficient time to ensure 
successful implementation. These commenters contended that given the 
enormity of the operational changes that will accompany the integration 
of these forms, an implementation period of at least 18 to 24 months is 
required to allow creditors and the title and settlement industries 
sufficient time to implement final changes through necessary staff 
training on the new requirements, revisions to policies, procedures, 
and other materials, software/data/technology processing changes, 
education of related industry professionals (e.g., settlement agents), 
and coordination with other regulatory changes required under the Dodd-
Frank Act. One industry commenter noted that its vendors have estimated 
that developing the forms will take 18 to 24 months, and also estimated 
that an additional six to 12 months will be necessary to implement 
them. Another industry commenter argued that the Bureau should 
coordinate the implementation dates of all mortgage-related rules and 
allow a 24-month implementation period for use of the new disclosure 
forms. One trade association commenter urged the Bureau to allow for a 
minimum of 18 months from the date of any final rule issuance to ensure 
that banks of all sizes are able to properly incorporate and implement 
these rules in an orderly and efficient manner.
    One trade association commenter argued that the proposed changes to 
the disclosure forms and the underlying rules will be pervasive and 
will necessitate changes to all of the systems that support the lending 
process. According to this commenter, changes will be required to user 
interfaces used by creditors to review and complete the forms, 
underlying programming logic and/or rules engines, supporting 
databases, the user interface where consumers review and sign 
documents, data input exchanges, data output exchanges, document/data 
retention systems, and compliance tracking systems. According to this 
commenter,

[[Page 80067]]

not only will software systems need to be updated, but systems for the 
various loan types offered by creditors will need to be tested, 
adjusted, and retested. This commenter stated that this is a process 
that can take months and often involves not only compliance personnel, 
but also impacts operating systems and processes and can require 
guidance from legal and regulatory advisors. This commenter argued that 
it is only after this lengthy process is complete that staff training 
can begin, and that training will need to be broad-based and include 
mortgage loan originators, personal bankers doing home equity loans, 
processors, closers, third-party closing agents, customer service 
representatives, and operations personnel who input loan data into the 
creditor's data processing systems, etc. Given these considerations, 
this commenter argued that it is highly unlikely that this can be 
accomplished and completed in a period less than 12 months and, 
therefore, that a reasonable implementation period would be 18 months, 
at a minimum.
    In addition, commenters argued that creditors will have to 
reconsider and likely renegotiate their arrangements with third-party 
service providers, in light of reduced tolerances and increased 
responsibilities for creditors. Some commenters contended that 
creditors will need to coordinate with affiliated and third-party 
settlement providers to ensure that consumers are receiving disclosures 
consistent with the new requirements. According to these commenters, 
since many creditors will need to rely on third parties to fulfill a 
significant portion of their responsibilities under the rule, it is 
critical that creditors have the time to work with service providers to 
ensure compliance and mitigate operational risk. One trade association 
commenter argued that whenever existing forms are modified or combined, 
the implementation of the revised forms inevitably takes longer than 
expected, in part due to the number of systems that have to be updated. 
According to some commenters, all of the above issues will be even more 
severe for smaller creditors.
    Some commenters argued that all loan products, sales and marketing 
arrangements, compensation schemes, business relationships, and 
transaction timing requirements are built on the basis, or in 
consideration of, the RESPA and TILA statutes. Therefore, these 
commenters contended that altering the body of mortgage disclosures 
requires a reconstruction of the entire loan delivery system for 
creditors. According to these commenters, the new forms impose several 
significant changes to how real estate closings are handled, causing 
dramatic systemic effects on the nature of the relationship among the 
parties. For example, these commenters pointed out that the rule 
impacts the relationship between creditors and settlement agents as the 
creditor will now be responsible for the Closing Disclosure.
    Some industry commenters stated that they confirmed with their 
compliance system vendors that it will take a considerable period of 
time to construct new disclosure and compliance arrangements, including 
time to develop and test new systems, provide creditors the chance to 
review vendor systems for compliance with the rules and integrate the 
new systems into their systems and product lines, and build in time to 
troubleshoot and test these systems as a means of quality control. A 
GSE commenter argued that software release dates are often set months, 
even a year, in advance, and if the industry is implementing this rule 
at the same time as the other Title XIV Rulemakings, it may need a 
longer implementation period. Another industry commenter contended that 
technology systems will require an extensive coding and reprogramming 
process. In addition, according to this commenter, other forms used at 
closing are based on the HUD-1, and so those forms will need to be 
reprogrammed accordingly as well. Several commenters argued that 
something as simple as creating a multi-sided document is a huge 
technical endeavor. A trade association commenter argued that because 
of the lack of specific hard-coded items on the Closing Disclosure, and 
because of the alphabetical order requirement for the listing of 
closing costs, effective implementation will require developing a more 
dynamic software program. Due to the significant changes from the 
current disclosure forms and processes, a trade association commenter 
contended that the industry will need roughly 24 months to implement 
the disclosures and rule once they are final. A law firm commenter 
contended that the time required for many of the changes, such as the 
disclosure changes and the data retention requirements, is cumulative, 
rather than concurrent, because many elements of the disclosures 
require independent systems development and engineering.
    A GSE commenter urged the Bureau to develop a reasonable 
implementation plan that focuses on resolving data standardization 
issues, allows the States with existing exemptions to amend relevant 
laws and regulations to provide for State integrated disclosure forms 
that are substantially similar to the Bureau's disclosure forms, and 
allows large and small creditors to implement the Bureau and State 
regulations at the same time. This commenter argued that, by doing so, 
the Bureau's goals in promulgating the integrated disclosures will be 
better achieved and the overall costs and burdens on the industry--and, 
ultimately, consumers--will be mitigated most effectively.
    Some commenters pointed to HUD's 2008 RESPA Final Rule as further 
justification for an 18 to 24-month implementation period. The 
commenters noted that when HUD revised Regulation X in 2008,\313\ it 
provided a 13.5-month compliance period that proved insufficient, 
causing HUD to announce six weeks before the effective date that it 
would refrain from enforcing the new rules for the first four months 
following the effective date. One commenter noted that at roughly the 
same time as the implementation of HUD's 2008 RESPA Final Rule, the 
Board implemented the MDIA amendments to TILA which established new 
timeframes for the disclosure process and new requirements for 
redisclosure where costs increase beyond tolerances. A number of 
industry commenters and a trade association commenter noted that the 
implementation of HUD's 2008 RESPA Final Rule also caused HUD to issue 
several iterations of HUD's RESPA FAQs, each with a growing number of 
technical questions, in part because the application of the new 
regulation to the hundreds of transactional variances across all states 
and loan types posed insurmountable challenges. One trade association 
commenter argued that these post-implementation guidance updates 
created compliance uncertainty, because some loans that were compliant 
upon origination became non-compliant as provisions were amended and 
commentary and clarifications were issued or updated.
---------------------------------------------------------------------------

    \313\ As described above in part II.B, HUD's 2008 RESPA Final 
Rule required new disclosure forms and contained new rules, 
including a new definition of application and tolerances for 
estimated settlement charges, which were intended to facilitate 
consumer shopping and protect consumers from increased charges at 
closing.
---------------------------------------------------------------------------

    Since the Bureau is comprehensively revising regulations for both 
RESPA and TILA, these commenters argued that clearly a longer 
implementation period is warranted than was provided for HUD's 2008 
RESPA Final Rule. A law firm commenter pointed to the implementation 
period of HUD's revised RESPA GFE and RESPA settlement statement, and 
argued that the integrated forms will require an even

[[Page 80068]]

greater overhaul of systems because they contain very different 
elements, such as the projected payments table, which is very different 
from the current interest rate and payment summary table. These 
commenters also argued that, in light of that past experience and 
confusion and disorder within the industry that resulted, it is 
especially imperative that this reform is done correctly, rather than 
quickly, and that any changes to the current system should be 
established and implemented judiciously.
Separate Effective Dates for Different Sizes and Types of Entities
    During the Small Business Review Panel process,\314\ the Small 
Business Review Panel received feedback from small entity 
representatives requesting that the Bureau provide a substantial 
compliance period after issuance of the final rule. The small entity 
representatives reported that they anticipated significant one-time 
software upgrade and training costs, though their estimates varied 
greatly, and they generally stated that these costs would be less 
burdensome if the Bureau provided a substantial compliance period to 
upgrade systems and to train staff. The small entity representatives 
requested a variety of implementation periods, however.\315\ 
Accordingly, as discussed above, the Bureau solicited comment on 
whether the exemption period should differ depending on the size of the 
business entity.
---------------------------------------------------------------------------

    \314\ See part III.D, above, for a discussion of the Bureau's 
Small Business Review Panel process.
    \315\ Small Business Review Panel Report at 19. As noted in 
chapter 8.1 of the Panel Report, the small entity representatives 
generally asked for an implementation period ranging from 12 to 18 
months.
---------------------------------------------------------------------------

    While one trade association commenter urged the Bureau to issue 
final rules with an effective date that is a minimum of 24 months after 
publication for financial institutions with less than $10 billion in 
assets, commenters generally disfavored a bifurcated approach and 
emphasized that it would be unreasonable and disruptive to adopt 
different implementation timeframes for entities of different sizes.
    For instance, a credit union trade association commenter argued 
that all institutions should be subject to the same effective date. 
While recognizing that it may take smaller entities more time to 
harmonize their practices and procedures with the integrated 
disclosures, one State attorney general and several industry commenters 
did not believe that the Bureau should grant smaller entities more time 
to comply with the final rule than larger entities. These commenters 
argued that the same implementation period for all covered entities 
will allow consumers to comparison shop. In addition, these commenters 
reiterated the Bureau's concern that a bifurcated implementation period 
could be detrimental to consumers, as during any time period where 
larger entities were required to comply with the final rule but smaller 
entities were not, consumers could potentially receive different 
disclosures depending on which business entity they worked with to 
obtain credit. This would not only be confusing to consumers, but, 
potentially, confusing to lending entities, especially in those 
situations where a small entity acts as a correspondent lender for a 
large entity.
    One trade association commenter argued that because lending is 
interconnected--large creditors use small creditor correspondents, 
which use vendors--there is a need to make sure that the rule is being 
implemented by small creditors regardless. A law firm commenter 
contended that a separate effective date for small entities would not 
be helpful, because forms vendors will have to be ready at the earliest 
effective date anyway. This commenter suggested instead that the Bureau 
consider delaying the effective dates of certain elements of the rule, 
such as applicability to construction loans, as doing so would neither 
result in consumers receiving different disclosures from different 
creditors nor negatively affect consumer shopping.
    Several commenters favored a grace period after the effective date 
since this will be such a large undertaking. They noted that they 
learned from implementing HUD's 2008 RESPA Final Rule that additional 
time is needed after creditors make all of their system changes to work 
out the kinks, and asserted that this rule imposes much more extensive 
changes than HUD's 2008 RESPA Final Rule. A law firm commenter also 
suggested a temporary reprieve from liability if a creditor can 
demonstrate a good faith effort to comply, similar to HUD's enforcement 
reprieve for the revised RESPA GFE and RESPA settlement statement. One 
commenter recommended a grace period of 90 days.
    A State housing agency association asked the Bureau to extend the 
effective date for housing finance agencies (HFAs). This commenter 
contended that it is entirely appropriate for the Bureau to grant HFAs 
additional time to adopt the integrated disclosures.
Bureau Guidance During the Implementation Period
    Various commenters anticipated that the Bureau will need to provide 
guidance during the implementation period because of the many 
interpretive and technical issues that will arise. Some commenters 
urged the Bureau not to require implementation until the Bureau has the 
chance to provide guidance through iterations of rules and disclosures. 
According to these commenters, implementing revised mortgage disclosure 
forms is unquestionably a costly, time-consuming task for all, and 
rules that need to be implemented without adequate guidance increase 
costs yet further. Several industry commenters reminded the Bureau to 
be aware of the effect that providing guidance through frequently asked 
questions (FAQs), clarifications, and amendments can have on 
development and implementation when determining an implementation 
period. Some commenters urged an implementation period of 24 months in 
part because they anticipate that the Bureau will need to provide 
significant, additional guidance at a later date on the use of the Loan 
Estimate and Closing Disclosures and other related issues, in which 
case the industry will need time to analyze and comply with the 
guidance.
    One trade association commenter argued that the Bureau should 
include a period for stakeholder questions and Bureau responses to 
those questions, and that the implementation period should begin only 
after all questions are addressed. Several trade association and 
industry commenters suggested that the Bureau adopt an implementation 
period timeframe whereby it would conduct meetings with industry after 
the rule is finalized and then issue an extended commentary six months 
after issuance to address concerns raised at those meetings.
    In light of the above concerns, some commenters suggested that the 
Bureau adopt a staged implementation period to allow for the most 
effective and efficient rollout. According to these commenters, the 
first stage would involve the Bureau accepting questions orally and in 
writing from creditors, systems providers, and other stakeholders, 
through workshops and webinars for at least the first three months 
after the rule is finalized. The second stage would involve the Bureau 
posting answers to questions publicly on the Bureau's Web site as FAQs. 
The third stage would involve providing the public an opportunity to 
comment on the FAQs and, after consideration of those

[[Page 80069]]

comments, the Bureau would incorporate any necessary changes into the 
official commentary. Finally, the fourth stage would commence an 
implementation period of at least 18 months to allow training, systems 
changes, and other implementation actions to begin in earnest. This 
last stage would follow either the second or third stage, as described 
above and depending on the extent of guidance needed. According to 
these commenters, this approach would ensure prompt and reliable 
guidance while, at the same time, providing an efficient and reasonable 
implementation period.

C. The Effective Date

    This final rule is effective on August 1, 2015. The final rule 
applies to transactions for which the creditor or mortgage broker 
receives an application on or after that date, with the exception of 
new Sec.  1026.19(e)(2), and the amendments of the final rule to 
Sec. Sec.  1026.28, and 1026.29, which are effective on August 1, 2015, 
because they apply without respect to whether an application has been 
received on that date.
Applications Received On or After
    The Bureau considers the amendments in this final rule to create a 
single integrated disclosure regime. The Bureau also understands that 
the current disclosures under TILA and RESPA consist of one disclosure 
regime under each statute, and therefore does not believe that a 
consumer receiving the current disclosures for a transaction for which 
the creditor receives an application before the effective date should 
subsequently receive the Bureau's new integrated disclosures. 
Accordingly, the effective date for this final rule applies to 
applications received by a creditor or mortgage broker on or after 
August 1, 2015 (with the exception of new Sec.  1026.19(e)(2) and 
amendments of the final rule to provisions regarding preemption of 
State law under Sec. Sec.  1026.28(a)(1) and 1026.29).
    This means that if the creditor receives an application before the 
August 1, 2015 effective date, not only shall the current early 
disclosures (i.e., the early TILA disclosure and the RESPA GFE) be 
provided for the transaction, but the current final disclosures (i.e., 
the final TILA disclosure and the RESPA settlement statement) shall 
also be provided for that transaction, even when consummation of the 
transaction will occur, and thus the final disclosures will be 
provided, after August 1, 2015. For example, if a creditor receives an 
application for a mortgage loan subject to Sec.  1026.19(e) and (f) on 
July 31, 2015, the current rules will apply for that transaction from 
application through consummation and thereafter. Accordingly, the 
creditor would provide the current early disclosures within the 
timeframes required under the current rules. In addition, even if 
settlement occurred 60 days later, after August 1, 2015, the current 
final disclosures would be provided to the consumer. Further, the 
creditor and other parties, as applicable, would also have to comply 
with any other rules that apply under the current regulatory regime 
with respect to the transaction, including existing requirements 
relating to tolerances for increases in estimated settlement charges 
under Regulation X, receipt by the consumer of the final TILA 
disclosure at least three business days before consummation when the 
disclosed APR becomes inaccurate under the tolerances provided under 
TILA, and responsibilities of the person conducting the settlement for 
providing the RESPA settlement statement. This final rule and its new 
integrated disclosure requirements would not apply to the transaction 
because the final rule is only effective for transactions for which the 
application is received on or after August 1, 2015 (with the exception 
of Sec. Sec.  1026.19(e)(2), 1026.28, and 1026.29, as described above).
    The Bureau notes that the above-described approach to the effective 
date has become a standard feature of recent mortgage disclosure 
rulemakings by both the Board and HUD. For example, as described above 
in part II.B, in HUD's 2008 RESPA Final Rule, HUD issued extensive 
revisions to the RESPA GFE and RESPA settlement forms required under 
Regulation X, as well as revisions to other requirements relating to 
mortgage loan transactions. HUD applied the final rule prospectively to 
mortgage applications received on or after January 1, 2010. 73 FR 68204 
(Nov. 17, 2008); HUD RESPA FAQs p. 1, 1 (``GFE-General'') 
(requiring use of the revised RESPA GFE beginning January 1, 2010 and 
use of the revised RESPA settlement statement for all transactions in 
which the revised GFE was used; and permitting the continued use of the 
prior RESPA settlement statement for applications received prior to 
January 1, 2010). Similarly, in 2010, the Board issued the MDIA Interim 
Rule, which included substitution of the interest rate and payment 
summary tables for the then-existing payment schedule in the TILA 
disclosure requirements. 75 FR 58470 (Sept. 24, 2010). The Board 
required compliance with these requirements for transactions for which 
an application for credit was received by the creditor on or after 
January 30, 2011. In addition, the Board has issued other final rules 
amending requirements relating to mortgage loan transactions that have 
become effective based on the date the creditor receives the consumer's 
application. See 73 FR 44522, 44594-5 (July 30, 2008). The Bureau has 
also followed this approach in its other mortgage rulemakings. For 
example, the Bureau's 2013 ATR Final Rule becomes effective based on 
the date the creditor receives the consumer's application.\316\
---------------------------------------------------------------------------

    \316\ See 78 FR 6408, 6555 (Jan. 30, 2013); 78 FR 35430, 35492 
(June 12, 2013).
---------------------------------------------------------------------------

    The Bureau believes that following this approach in this final rule 
provides a benefit to consumers by facilitating a more effective, 
consolidated disclosure scheme for their transactions. The Bureau 
believes that providing consumers with the current RESPA GFE and early 
TILA disclosure for applications received before the August 1, 2015 
effective date, followed by the Closing Disclosure that is being 
implemented under this final rule would be detrimental to consumers 
because consumers would be confused if they had to compare two 
substantially different sets of disclosures at or before consummation. 
HUD has designed the RESPA GFE and the RESPA settlement statement to 
provide information to the consumer that is intended to enable 
comparisons between the two disclosures. For example, the RESPA 
settlement statement identifies next to the labels for certain final 
settlement charges the location where the estimate for that charge is 
displayed on the RESPA GFE. In addition, the early and final TILA 
disclosures contain the same sets of information and the model forms 
under Regulation Z do not differentiate between the two disclosures 
(other than rules with respect to the labeling of estimates). If 
consumers were to receive the early TILA disclosure and RESPA GFE at 
application and then receive the Closing Disclosure three business days 
before consummation, they would not be able to use these aspects of the 
disclosures to compare their estimated and final loan terms and costs 
using the current disclosures. Accordingly, making the date the 
application is received the key date for determining whether the 
current disclosure rules or the Bureau's new disclosure rules apply to 
the transaction will enable consumers to reap the benefits of either 
the current consolidated disclosure schemes or the

[[Page 80070]]

Bureau's new consolidated disclosure scheme.
    Although the Bureau's Quantitative Study has concluded that its 
integrated disclosures perform better than the current disclosures at 
enabling the comparison of estimated and final loan terms and costs, 
see Kleimann Quantitative Study Report at 46-47, the Bureau believes it 
has achieved this enhanced performance by matching the designs of the 
Loan Estimate and Closing Disclosure as closely as possible. In 
addition, although the Closing Disclosure also performed better than 
the current final TILA disclosure and RESPA settlement statement with 
respect to questions that did not require such comparison and merely 
required respondents to identify or understand the final loan terms and 
costs, see Kleimann Quantitative Study Report at 47-48, the Bureau 
believes that the consumer confusion that would result upon receipt of 
a disclosure three business days before consummation that is 
substantially different from that received at application would 
outweigh any such benefit.
    For these reasons, the Bureau believes this approach will make it 
easier for consumers to understand how and why any costs may have 
changed during the transition to the integrated disclosures required 
under this final rule. The Bureau believes that this approach will 
better ensure that consumers receive the full benefits of the 
integration without disruption and allow the Bureau to coordinate the 
changes in a way that improves overall consumer understanding of the 
disclosures and their transactions. Accordingly, the Bureau believes 
that consumer understanding is aided under this approach, and believes 
the approach is appropriate to improve the informed use of credit.
    The Bureau also believes this approach facilitates compliance with 
the integrated disclosure requirements, which is one of the purposes of 
the integrated disclosures as mandated by the Dodd-Frank Act. Making 
the application date of a transaction the key date for determining 
whether the current or new disclosure rules apply enables creditors to 
use one computer system for that transaction from application through 
consummation and settlement. Creditors would not need to transfer 
pending transactions from their current origination, disclosure, and 
compliance computer systems to their new systems while the transaction 
is in process. In addition, new requirements, such as those restricting 
the amounts by which certain charges are permitted to increase from 
their estimates and the timing of receipt of certain disclosures by 
consumers would not apply retroactively to transactions that began 
under the current rules. For these reasons, the Bureau believes 
applying the effective date of this final rule (with the exception of 
Sec. Sec.  1026.19(e)(2), 1026.28, and 1026.29 of the final rule, as 
noted above) to applications received on or after August 1, 2015 will 
facilitate compliance.
    Accordingly, the Bureau believes making the final rule applicable 
to transactions for which the creditor or mortgage broker receives an 
application on or after the effective date (with the exception of 
Sec. Sec.  1026.19(e)(2), 1026.28, and 1026.29 of the final rule, as 
described above) is consistent with the statutory purposes of the 
integrated disclosure requirements in Dodd-Frank Act sections 1098 and 
1100A and past effective dates provided by other Federal regulatory 
agencies for the implementation of mortgage rulemakings. The Bureau 
believes this effective date will facilitate compliance with the 
disclosure requirements for industry and ensure the final rule provides 
the substantial benefits for consumers intended by the Bureau, without 
detracting from consumer understanding of mortgage loan transactions 
during the transition to the integrated disclosures.
    The Bureau is adding comment 1026.1(d)(5)-1 to provide clarity 
regarding the application of the effective date to transactions covered 
by the final rule. The comment summarizes the effective date and sets 
forth examples to illustrate the application of the effective date. The 
Bureau believes this comment will facilitate compliance with the final 
rule, which is one of the purposes of the integrated disclosures, as 
discussed above.
Predisclosure Activity
    As described above, the final rule generally applies to 
transactions for which the creditor or mortgage broker receives an 
application on or after August 1, 2015. Section 1026.19(e)(2) of the 
final rule includes restrictions on certain activity prior to a 
consumer's receipt of the disclosures required by Sec.  
1026.19(e)(1)(i), which may occur prior to a consumer's submission of 
an application under Sec.  1026.19(e). These include Sec.  
1026.19(e)(2)(i), which restricts the fees that may be imposed on a 
consumer, Sec.  1026.19(e)(2)(ii), which requires a statement to be 
included on written estimates of terms or costs specific to a consumer, 
and Sec.  1026.19(e)(2)(iii), which prohibits creditors from requiring 
the submission of documents verifying information related to the 
consumer's application. These provisions under Sec.  1026.19(e)(2) are 
effective on August 1, 2015, regardless of whether an application has 
been received on that date, because the restricted activity may occur 
before such receipt. The Bureau believes this effective date for the 
restrictions under Sec.  1026.19(e)(2) will benefit consumers and 
encourage consumer shopping for mortgage loans, because the provisions 
under Sec.  1026.19(e)(2) will restrict such activity beginning August 
1, 2015, regardless of whether or not consumers submit an application 
to the creditor. The Bureau believes that an approach that applies 
these provisions only to transactions for which the creditor has 
received an application would diminish the benefits of these provisions 
of the final rule to consumers, and would also not facilitate 
compliance, because it would be confusing to industry to implement the 
transition to these new requirements.
State Law Preemption
    As described above, the final rule generally applies to 
transactions for which the creditor or mortgage broker receives an 
application on or after August 1, 2015. The final rule amends Sec.  
1026.28(a)(1) and commentary to Sec.  1026.29 of Regulation Z, 
regarding the preemption of State law. The final rule amends Sec.  
1026.28(a)(1) to provide that State law requirements that are 
inconsistent with the requirements contained in the final rule are 
preempted to the extent of the inconsistency and provide a procedure 
under Sec.  1026.28(a)(1) for a creditor, State, or other interested 
party to request the Bureau to determine whether a State law 
requirement is inconsistent with Sec. Sec.  1026.19(e) and (f), 
1026.37, and 1026.38. The final rule amends comments 29(a)-2 and -4 to 
Sec.  1026.29(a), which provides procedures for a State to apply to the 
Bureau to exempt a class of transactions within the State from the 
requirements of chapter 2 (Credit transactions) or chapter 4 (Credit 
billing) of TILA and the corresponding provisions of Regulation Z. See 
the section-by-section analyses of Sec. Sec.  1026.28 and 1026.29 above 
for additional detail regarding these amendments.
    The amendments to Sec.  1026.28 and the commentary to Sec.  1026.29 
are effective on August 1, 2015, without respect to whether an 
application has been received on that date. The Bureau believes that an 
approach that applies these provisions only to transactions for which 
the creditor or mortgage broker has received an application would not 
facilitate compliance, because it would

[[Page 80071]]

be confusing, and potentially burdensome for industry to implement. For 
example, Sec.  1026.28(a)(1), as noted above, permits the public to 
submit requests to the Bureau for a determination of whether a State 
law requirement is inconsistent with the integrated disclosure 
requirements of Sec. Sec.  1026.19(e) and (f), 1026.37, and 1026.38. 
The public should be able to submit such a request prior to the receipt 
of an application, and such a request should be able to apply to the 
State law requirements generally, rather than a particular transaction 
for which an application was received. The Bureau believes this 
approach furthers one of the purposes of the integrated disclosures 
under Dodd-Frank Act sections 1098 and 1100A, which is to facilitate 
compliance with the mortgage disclosure requirements of TILA and RESPA 
sections 4 and 5.
    As discussed above, the Bureau is adding comment 1026.1(d)(5)-1 to 
provide clarity regarding the application of the effective date to 
transactions covered by the final rule. The comment summarizes the 
effective date and clarifies that new Sec.  1026.19(e)(2), and the 
amendments to Sec.  1026.28(a)(1) and the commentary to Sec.  1026.29 
in the final rule become effective on August 1, 2015. The comment also 
sets forth examples to illustrate the application of the effective 
date, including examples of the effective date of Sec.  1026.19(e)(2) 
and the amendments to Sec.  1026.28(a)(1) of the final rule.
Implementation Period
    For the reasons discussed below, the Bureau believes that the 
implementation period is consistent with the statutory purposes of the 
integrated disclosure requirements in Dodd-Frank Act sections 1098 and 
1100A and past periods provided by Federal regulatory agencies for the 
implementation of mortgage disclosure rulemakings. The Bureau believes 
this period, on balance, will afford industry sufficient time to 
implement comprehensive systems changes, integrate business practices 
into the new regulatory requirements of this final rule, and train 
staff, all of which will ensure the final rule fully provides the 
substantial benefits for consumers intended by the Bureau. The Bureau 
also believes this time period will assist in facilitating an efficient 
conversion of the supervisory processes of the Federal regulatory 
agencies responsible for examining creditors for compliance with the 
final rule.
    TILA section 105(d). As discussed above, the Dodd-Frank Act does 
not impose a deadline for issuing a final rule and disclosures in 
connection with the mandate to integrate disclosure requirements under 
TILA and RESPA, or provide a specific amount of time for entities to 
come into compliance after the final rule is issued. However, under 
TILA section 105(d), a regulation requiring any disclosure that differs 
from the disclosures previously required shall have an effective date 
no earlier than ``that October 1 which follows by at least six months 
the date of promulgation,'' except that the Bureau may at its 
discretion lengthen the period of time permitted for creditors or 
lessors to adjust their forms to accommodate new requirements, or 
shorten the period where the Bureau finds that such action is necessary 
to prevent unfair or deceptive disclosure practices. 15 U.S.C. 1604(d).
    The final rule significantly strengthens and streamlines the 
mortgage loan disclosures provided to consumers three days after 
application and at or before mortgage loan closings. The Bureau 
believes the final rule will deliver significant value to consumers, 
among other ways, by helping: (1) To ensure that they understand the 
costs, risks, and benefits of their loans at a time when they can still 
negotiate the terms of or walk away from the transaction; and (2) to 
minimize changes at the closing table and make it easier for consumers 
to understand how and why any costs may have changed. Although the 
Bureau desires to have the rule take effect as soon as realistically 
possible given its value for consumers, the Bureau has decided to use 
its discretion under TILA section 105(d) to lengthen the period in this 
instance. As described below, after consideration of public comments on 
this issue, the Bureau believes the changes the final rule will require 
to both the origination and closing processes warrant an effective date 
of August 1, 2015.
    Comments generally support an implementation period of at least 18 
months. As discussed above, virtually all comments supported an 
implementation period of at least 18 to 24 months for this final rule. 
While several commenters advocated for shorter time periods, the Bureau 
believes that these suggestions are neither practical nor feasible for 
industry as a whole, based on the Bureau's understanding of the tasks 
involved in implementing this final rule as described by commenters and 
the experience of industry in implementing recent mortgage rulemakings 
requiring similarly extensive revisions to software systems, as 
described below.
    Significant changes throughout the industry. The Bureau understands 
that implementation of this final rule will impose significant changes 
and costs across the residential real estate and mortgage lending 
industry. As discussed above, many commenters noted that implementation 
of the final rule goes farther than just new disclosure forms. The 
final rule affects a broad range of industry, including lenders, title 
companies, escrow agents, closing attorneys, document software 
providers, mortgage brokers, and real estate agents. The final rule 
also affects the interactions between these sectors of industry. For 
example, as some commenters noted, the final rule makes several 
significant changes to how real estate closings are handled--creditors 
will be responsible for providing the Closing Disclosure (although the 
final rule expressly permits settlement agents to provide it as well)--
and transforms the relationship between creditors and settlement 
agents.
    The scope of software systems changes required for each sector of 
industry to implement the necessary amendments and to make their 
systems interact seamlessly with other sectors of industry is 
substantial. The changes in this final rule will require updates to 
loan origination software and origination platforms; the development of 
systems to produce the integrated disclosures by third-party document 
companies used by creditors; the development of new systems for the 
title insurance and settlement services industry to produce the new 
integrated disclosures and integrate business practices, such as 
disbursements of settlement funds, into such software systems, 
including related systems in support of escrow agents and closing 
attorneys. Moreover, the title insurance and settlement services 
industry will need to prepare their systems to interact with the 
systems of multiple lenders. In addition, as many commenters noted, 
many of these industry participants in these different sectors of 
industry will need to update their compliance systems, internal quality 
control processes, and internal audit processes.
    Further, these parties may need to revise legal agreements between 
them to reflect changes in regulatory responsibilities under the final 
rule. As discussed above, some commenters noted that all loan products, 
sales and marketing arrangements, compensation schemes, business 
relationships, and transaction timing requirements are built on the 
basis, or in consideration of, the RESPA and TILA statutes. Therefore, 
the Bureau understands that altering the body of mortgage disclosures 
requires a reconstruction of the entire loan delivery system for 
creditors. Given the unprecedented

[[Page 80072]]

scope and broad impact of these new requirements, the Bureau 
understands that creditors and servicers will need to define and 
implement new business models that are sustainable in this changed 
regulatory environment.
    Lastly, this broad range of industry will need to spend time before 
even beginning to revise their software systems, or discussing the 
interaction of such systems, to review the final rule and consult with 
their compliance staff. Additionally, industry may consult with counsel 
or compliance consultants before beginning such revisions or during 
such revisions. The different sectors of industry may also need to 
ensure they have a similar understanding of the requirements of this 
final rule to ensure their systems interact effectively. Accordingly, 
the Bureau believes this final rule will require more time for systems 
changes than a rule that affected only one sector of industry.
    Staff training. The Bureau also understands that industry will be 
required to train vast numbers of loan origination, title insurance and 
settlement agent, real estate agent, and other settlement service 
provider personnel. In addition, the Bureau understands that much of 
this training cannot occur concurrently with the software systems 
changes described above, and can only be conducted after the software 
changes have been completed, so the staff personnel can train on the 
new software systems. The Bureau also understands that training will 
need to include a broad range of industry personnel, including loan 
originators, personal bankers doing home equity loans, loan processors, 
loan closers, third-party closing agents, customer service 
representatives, settlement agents, escrow agents, real estate agents, 
as well as back office personnel who may need to complete 
administrative functions with respect to the new integrated 
disclosures.
    Consistent with implementation periods for past mortgage 
rulemakings requiring extensive software systems changes. The Bureau 
believes that recent rulemakings affecting the residential mortgage 
lending industry that required extensive software systems changes 
provide a basis on which to determine an appropriate implementation 
period for this final rule. Several commenters noted that the 
implementation of HUD's 2008 RESPA Final Rule effectively necessitated 
a period of approximately 18 months. Specifically, HUD's 2008 RESPA 
Final Rule provided an implementation period of approximately 13 and a 
half months after publication of the rule in the Federal Register, 
which final rule involved fewer changes to the mortgage disclosures. 
Although HUD significantly revised the design of the RESPA GFE in its 
2008 RESPA Final Rule, it made fewer design changes to the RESPA 
settlement statement in that final rule. Even in that case, although 
HUD provided approximately 13 and a half months to implement the rule, 
HUD determined that it was necessary to exercise ``restraint in 
enforcing'' the new requirements for the first four months the rule was 
effective in the case of FHA-approved creditors that have 
``demonstrated that they are making a good faith effort to comply with 
RESPA's new requirements.'' \317\
---------------------------------------------------------------------------

    \317\ Press Release, U.S. Dep't of Hous. & Urban Dev., HUD No. 
09-215, HUD Announces Restraint in RESPA Enforcement for First Four 
Months of New Rule, (Nov. 13, 2009), available at http://portal.hud.gov/hudportal/HUD?src=/press/press_releases_media_advisories/2009/HUDNo.09-215.
---------------------------------------------------------------------------

    Similarly, when the Board amended the requirements with respect to 
data collection under the Home Mortgage Disclosure Act and its 
Regulation C in 2002, the Board initially provided approximately 10 and 
a half months from the publication of the final rule in the Federal 
Register to implement the amendments.\318\ However, the Board concluded 
several months later that it was necessary to extend the implementation 
period by one year because of operational difficulties industry 
experienced in implementing the rule, which resulted in approximately a 
22-month implementation period.\319\
---------------------------------------------------------------------------

    \318\ 67 FR 7222 (Feb.15, 2002) (final rule expanding the 
coverage of HMDA, redefining key terms, and requiring the collection 
of additional categories of data, including loan pricing data).
    \319\ 67 FR 30771 (May 8, 2002) (delaying the effective date of 
amendments to HMDA reporting requirements by one year because some 
entities were not able to implement them).
---------------------------------------------------------------------------

    Implementation of other rulemakings. The Bureau understands that 
the residential mortgage lending industry is, at the time of issuance 
of this final rule, implementing the Title XIV Rulemakings, which 
become effective in January 2014. As a result, the mortgage industry is 
facing major regulatory amendments impacting both loan origination 
practices and servicing. In addition, as noted by some commenters, some 
entities in the residential mortgage lending industry will be required 
to implement other rulemakings promulgated by other Federal agencies 
under the Dodd-Frank Act or in response to the recent financial crisis, 
such as rulemakings affecting capital and leverage standards for 
banking organizations and risk retention rules in residential mortgage-
backed securitizations. Some of these rulemakings by other Federal 
agencies are expected to have effective dates or be phased in over the 
same timeframe as this rulemaking. Accordingly, the Bureau understands 
that industry resources might be strained from the implementation of 
other rulemakings. Given the breadth of the systems changes required to 
implement this final rule, the Bureau believes that providing 
sufficient time to implement this final rule in the context of the 
regulatory environment in which industry is operating is an important 
consideration. The Bureau believes that providing a reasonable 
implementation period, in light of other implementation tasks industry 
must complete for these other rulemakings, will help facilitate 
compliance with the disclosure requirements of this final rule and 
ensure an effective implementation of the final rule for consumers.
    Concerns with an inadequate implementation period. The Bureau is 
concerned that an implementation period that does not allow enough time 
to complete the transition to the requirements of the final rule would 
have significant costs and inconveniences for both consumers and 
industry. For example, if implementation is not completed effectively, 
consumers could experience delayed closings due to flaws in computer 
systems or lengthy interactions between creditors and settlement agents 
due to insufficient time to work out processes, or poor closing 
experiences due to an insufficient time to train industry personnel. 
Based upon the comments received, the Bureau is concerned that some 
creditors might seek to eliminate operational risk through scaling back 
or discontinuing their lending activities if the duration of the 
implementation period is insufficient, which would be harmful to both 
consumers and the industry and lead to access to credit concerns. As 
discussed in part II.E above, the Dodd-Frank Act establishes two goals 
for the TILA-RESPA mortgage disclosure integration: to improve consumer 
understanding of mortgage loan transactions; and to facilitate industry 
compliance with TILA and RESPA. Dodd-Frank Act sections 1098 and 1100A. 
In adopting an effective date of August 1, 2015, the Bureau has 
therefore balanced the imperative to implement the new, more beneficial 
disclosures as quickly as realistically possible with the need to 
minimize costs and disruptions for consumers and industry alike. The 
Bureau believes, as

[[Page 80073]]

industry commenters noted above, that a reasonable implementation 
period will better ensure that consumers receive the full benefits of 
the integration without disruption.
    Application of the effective date to all creditors. The Bureau also 
believes that staggered effective dates for different sizes of entities 
would not be practicable, and has decided not to adopt a separate 
effective date for small entities. Although some commenters advocated 
providing more time for small businesses to come into compliance with 
the final rule, most commenters generally disfavored a separate 
effective date. The Bureau has concluded that a separate small entity 
effective date would not be practicable for several reasons. First, as 
noted by some commenters, because small businesses rely heavily on 
third-party technology providers, a delay would not be very useful. The 
Bureau understands that small creditors almost universally use third-
party technology vendors (i.e., LOS, document preparation vendors, 
etc.), which will have to be ready at the earliest effective date even 
if there were a separate later effective date for small entities, 
because such vendors service lenders of all sizes. Second, the Bureau 
remains concerned that a bifurcated implementation period could be 
detrimental to consumers since comparison shopping would be complicated 
for consumers during the interim period. The Bureau believes that 
providing the same implementation period for all creditors will allow 
consumers to comparison shop using the same disclosures from the date 
they become effective. The Bureau is concerned that consumers will be 
confused if they have to compare loans between lenders using two 
substantially different sets of disclosures. Third, information flow 
would also be complicated for industry and secondary market investors 
during the interim period. In many cases, as noted by commenters, small 
creditors act as correspondent lenders for a larger creditor, and small 
mortgage brokers provide disclosures for loans provided by larger 
creditors. It may be unclear which disclosures are effective in such 
cases. For the same reasons, the Bureau has decided not to adopt a 
separate effective date for housing finance agencies.
    With respect to the commenters that requested a grace period, 
delayed enforcement period, or a temporary reprieve from liability 
after the effective date, the Bureau believes that the implementation 
period for the final rule provides an appropriate and reasonable 
implementation schedule that balances the importance of putting new 
requirements in place as quickly as possible for consumers with the 
need to allow industry sufficient time to implement the new disclosure 
requirements effectively and efficiently. Accordingly, the Bureau has 
decided to mandate one effective date, and not adopt a staggered 
approach that includes a grace period, delayed enforcement period, or 
some other form of temporary reprieve from the requirements to comply 
with the final rule.
    Implementation assistance. As several industry commenters 
suggested, the Bureau intends to provide guidance to industry regarding 
the implementation of this final rule. The Bureau believes that 
guidance in the form of plain language compliance guides, conducting 
roundtable meetings with stakeholders, and other compliance aids such 
as videos and reference charts, will assist industry in achieving an 
efficient implementation of the final rule. In addition, as noted below 
in the section-by-section analysis of Sec.  1026.25, the Bureau will 
continue to monitor the GSEs' efforts to finalize their standardized 
dataset for the Closing Disclosure, the ``Uniform Closing Dataset 
(UCD).'' The Bureau believes that utilization of such a standardized 
dataset may enable certain efficiencies in industry's implementation of 
this final rule.
    However, the Bureau does not believe that a staged implementation 
of the final rule, or the Bureau's issuance of several iterations of 
the rule and disclosures are necessary, as some commenters suggested. 
The Bureau understands that providing guidance through FAQs throughout 
the implementation period has the potential to negatively impact 
industry's efficiency in implementing the rule and understands the 
experience of industry in incorporating FAQs during its implementation 
of HUD's 2008 RESPA Final Rule. The Bureau believes that an effective 
date of August 1, 2015 will allow enough time for industry to analyze 
and incorporate any such guidance or compliance aids the Bureau 
provides and complete implementation in an efficient manner. In 
addition, the Bureau believes the effective date of this final rule 
will allow enough time for the Bureau to respond to stakeholder 
questions regarding the final rule, such as in roundtable meetings, and 
for industry's incorporation of such guidance.
Conclusion
    For the aforementioned reasons, the Bureau believes that an 
effective date of August 1, 2015, provides a reasonable implementation 
period that will ensure that consumers receive the full benefits of the 
integration without disruption. The Bureau believes that this effective 
date ensures that the Bureau's goals in promulgating the integrated 
disclosures will be achieved and the overall costs and burdens on the 
industry--and, ultimately, consumers--will be mitigated most 
effectively.
    The Bureau finds that this approach carefully balances the two 
statutory objectives for the TILA-RESPA mortgage disclosure integration 
set forth in sections 1098 and 1100A of the Dodd-Frank Act: to aid 
consumer understanding of mortgage loan transactions; and to facilitate 
industry compliance with TILA and RESPA.

VII. Dodd-Frank Act Section 1022(b)(2) Analysis

A. Overview

    In developing the final rule, the Bureau has considered potential 
benefits, costs, and impacts, and has consulted or offered to consult 
with the prudential regulators and the Federal Trade Commission 
regarding consistency with any prudential, market, or systemic 
objectives administered by such agencies.\320\ The Bureau also held 
discussions with or solicited feedback from the United States 
Department of Agriculture Rural Housing Service, the Farm Credit 
Administration, the Federal Housing Administration, the Federal Housing 
Finance Agency, the United States Department of Housing and Urban 
Development, and the Department of Veterans Affairs regarding the 
potential impacts of the final rule on those entities' loan programs.
---------------------------------------------------------------------------

    \320\ Specifically, Dodd-Frank Act section 1022(b)(2)(A) calls 
for the Bureau to consider the potential benefits and costs of a 
regulation to consumers and covered persons, including the potential 
reduction of access by consumers to consumer financial products or 
services; the impact on insured depository institutions and insured 
credit unions with $10 billion or less in total assets as described 
in section 1026 of the Act; and the impact on consumers in rural 
areas.
---------------------------------------------------------------------------

    The Bureau is issuing final rules and forms that combine the pre-
consummation TILA and RESPA disclosures for loans subject to either law 
or to both laws, pursuant to sections 1032(f), 1098, and 1100A of the 
Dodd-Frank Act. This rule finalizes most aspects of the proposed rule 
issued in July 2012 that implemented section 1032(f) of the Dodd Frank 
Act. Sections 1098 and 1100A of the Dodd-Frank Act, which amended RESPA 
and TILA, respectively, to mandate the integrated disclosures, state 
that the purposes of the disclosures are to facilitate

[[Page 80074]]

compliance with the disclosure requirements of the statutes and ``to 
aid the borrower or lessee in understanding the transaction by 
utilizing readily understandable language to simplify the technical 
nature of the disclosures.'' Dodd-Frank Act sections 1098(2)(A), 
1100(A)(5). The Bureau is also implementing several new disclosure 
requirements added to TILA and RESPA by the Dodd-Frank Act. In 
addition, the Bureau is revising current regulations implementing the 
pre-consummation disclosure requirements of TILA and RESPA to improve 
consumer understanding of mortgage transactions and upfront disclosure 
of loan costs and terms, consistent with the purposes of TILA and 
RESPA.
    TILA and RESPA currently require creditors and settlement agents to 
provide consumers who apply for mortgage loans different but 
overlapping disclosures regarding the loan's terms and costs. This 
duplication has long been recognized as inefficient and confusing for 
consumers and industry. Prior to the creation of the Bureau, the Board 
and HUD independently took steps to address these shortcomings, but 
neither agency had the authority to combine the duplicative 
disclosures. On July 21, 2011, the Dodd-Frank Act transferred authority 
over TILA and RESPA to the Bureau. As noted above, the Dodd-Frank Act 
specifically directs the Bureau to combine the TILA and RESPA mortgage 
disclosures.
    With respect to each major provision in the final rule, the 
analysis considers the benefits and costs to consumers and covered 
persons, and in certain instances considers other impacts. The analysis 
also addresses comments the Bureau received on the proposed Dodd-Frank 
Act section 1022 analysis as well as certain other comments on the 
benefits or costs of provisions of the proposed rule when doing so is 
helpful to understanding the Dodd-Frank Act section 1022 analysis. 
Comments that mentioned the benefits or costs of a provision of the 
proposed rule in the context of commenting on the merits of that 
provision are addressed in the section-by-section analysis of that 
provision above. In this respect, the Bureau's analysis under Dodd-
Frank Act section 1022 is not limited to the discussion in this part 
VII of the final notice. No new datasets were used in analyzing the 
impact of the rule, aside from more current versions of HMDA and Call 
Reports data.

B. Economic Overview and Provisions To Be Analyzed

    In this section of the 1022 analysis, the Bureau presents a 
concise, high-level overview of the costs and benefits discussed in the 
remainder of the analysis and a brief response to the major comments 
received with respect to the 1022 analysis that accompanied the 
proposed rule. This overview is not intended to capture all details and 
nuances that are provided both in the rest of the 1022 analysis and in 
the section-by-section analysis in the preamble, but rather to provide 
an overview of the major costs and benefits of the rule.
1. Major Benefits of the Rule
    The major benefits of the rule stem from two key consequences of 
the rule. The first consequence is disclosure of the terms of the 
transaction, including loan terms and pricing and other costs, that is 
easier to understand and that is potentially provided to the consumer 
earlier in the process than is true today.\321\ In the Bureau's 
quantitative testing, subjects who were given the proposed disclosures 
answered 79.3 percent of questions correctly, versus 64.5 percent with 
the existing forms, a 14.8 percentage point, statistically significant, 
overall improvement.\322\ As discussed in section III, for certain 
important elements, the improvement was substantially greater. The 
second consequence of the rule that produces major benefits is ensuring 
that the consumer receives the Closing Disclosure at least three 
business days in advance of consummation and in a format that tracks 
the Loan Estimate and thus facilitates easy comparison.\323\ This 
permits consumers to compare their estimated and final loan terms and 
costs, with sufficient time to identify discrepancies between the Loan 
Estimate and actual terms of the transactions and without the pressure 
of doing so at the closing table.
---------------------------------------------------------------------------

    \321\ See Kleimann Testing Report and Kleimann Quantitative 
Study Report for more details.
    \322\ See Kleimann Quantitative Study Report at 41.
    \323\ While some of the amounts in the form might still change 
in the last three days, consumer will have at least three days to 
consider the loan type, the length of the loan, APR (up to 1/8th of 
a percentage point), and, if it is one of the terms, a prepayment 
penalty.
---------------------------------------------------------------------------

    Together, these aspects of the rule will benefit consumers by 
enabling them to choose loans that are better for them in terms of 
price or loan features and to know whether they actually get the price 
and loan terms that they expected when they decided which loan to take 
out. The improved disclosure will also give consumers a greater 
incentive to shop for loan terms as they will be better able to compare 
competing offers. And, the Loan Estimate and Closing Disclosure will 
provide consumers with more easily understandable information about the 
settlement services associated with the loan and which settlement 
services they can shop for. Therefore, this rulemaking might mitigate 
two problems in the current real estate market: Insufficient amount of 
shopping by consumers for loans and also for settlement services 
(mitigated because the disclosures are easier to understand, and thus 
compare) \324\ and consumers not having sufficient time to ask 
questions, negotiate with respect to terms that have changed, and 
otherwise adjust the loan terms or settlement costs prior to 
consummation (mitigated by the clearer and more informative early and 
closing disclosures, and the three-business-day waiting requirement).
---------------------------------------------------------------------------

    \324\ Beales, Howard, Richard Craswell, and Steven Salop. 
``Information Remedies for Consumer Protection.'' The American 
Economic Review 71.2 (1981) at 410-413.
---------------------------------------------------------------------------

    Quantifying these benefits is difficult, as the size of each 
particular effect cannot be known in advance. Small changes in 
behavior, however, can have very large aggregate effects, given the 
size of individual mortgage transactions and the size of the entire 
mortgage market.
    For, example, consider a hypothetical example of a small share of 
consumers obtaining slightly less expensive mortgage loans, either by 
making better choices with regard to the loan they choose or because 
the improved comparability of the form encourages them to shop more. If 
the new disclosures only affect ten percent of borrowers, and only 
lower their interest rates by .125% (1/8 of a percentage point, the 
smallest typical unit of price difference in the mortgage market), this 
would lead to an annual saving of $1,250,000,000 for mortgage borrowers 
once all mortgages have been originated with the integrated disclosures 
and assuming total outstanding mortgage balances were to remain at 
their current level of roughly ten trillion dollars.
    The ability of increased shopping to reduce consumer costs has been 
demonstrated empirically. For example, one recent study found that 
consumers financing a $200,000 loan save $2,700 on average by shopping 
at four brokers instead of shopping at two.\325\ African-American 
consumers and consumers with low education and/or a low credit score 
shopping for a loan of the same amount save even more on average.\326\
---------------------------------------------------------------------------

    \325\ Woodward and Hall (2012).
    \326\ Id.
---------------------------------------------------------------------------

    Moreover, if a significant number of borrowers were to increase 
their amount of shopping and to shop more effectively, this might 
increase

[[Page 80075]]

competition in the mortgage loan market and lead to lower prices for 
all consumers. The Bureau does not possess, and is not aware of, any 
data that would allow it to quantify with any precision the number of 
borrowers who would engage in incremental shopping or the effect such 
shopping would have in reducing the interest rate that borrowers 
otherwise would pay.\327\ The Bureau notes that there were roughly 
7,600,000 covered mortgage transactions in 2011, with a total dollar 
volume of $1,280,000,000,000.\328\ Each basis point of reduction in 
average interest cost to consumers would therefore translate into total 
consumer savings of $128,000,000 per year.
---------------------------------------------------------------------------

    \327\ The magnitude of such an impact would depend, in addition 
to the shopping effects, on the current state of competition in the 
mortgage market.
    \328\ Moody's Analytics, Credit Forecast 2012 (2012) (``Credit 
Forecast 2012''), available at http://www.economy.com/default.asp 
(reflects first-lien mortgage loans) (data service accessibly only 
through paid subscription).
---------------------------------------------------------------------------

    Similarly, consumers will benefit if the improved disclosures 
encourage or enable greater shopping for settlement services. While the 
benefits of shopping for closing services are hard to quantify, if only 
ten percent of consumers lower their closing costs by ten percent by 
shopping for some of their settlement services, this would result in 
approximately $24 of savings per transaction on average,\329\ or 
approximately $168,000,000 per year in consumer benefits.\330\ And 
again, as with mortgage pricing generally, there may be further 
benefits that could flow from more consumers shopping for closing 
services, which would likely make the closing service market more 
competitive, resulting in spillover benefits even to the non-shoppers. 
At a pace of 7,600,000 covered mortgage transactions per year, each 
dollar of reduction in average closing costs would translate into 
$7,600,000 in consumer savings.
---------------------------------------------------------------------------

    \329\ The Bureau assumes that closing costs are $2,400, based on 
a recent survey by Bankrate.com, available at http://www.bankrate.com/finance/mortgages/closing-costs/closing-costs-by-state.aspx. In this hypothetical scenario, 10% of consumers would 
save $240 each. This is consistent with a recent study by HUD and 
the Urban Institute, indicating that borrowers could save hundreds 
of dollars by shopping for title services and title insurance. See 
U.S. Dep't of Hous. & Urban Dev. and The Urban Inst., What Explains 
Variation in Title Charges? A Study of Five Large Markets (2012), 
available at http://www.huduser.org/portal/publications/hsgfin/title_charges_2012.html (HUD Title Charge Study).
    \330\ Consumers can only shop for some of the services, and the 
10% savings number is chosen to reflect that.
---------------------------------------------------------------------------

    Better informed consumers might pick not only cheaper loans, but 
also loans with characteristics that better fit their needs. Other 
consumers may decide to forgo a mortgage completely after receiving 
better information about the costs and risks of the mortgages for which 
they qualify. Again, the benefits of this effect are difficult to 
measure precisely, but they would appear to be potentially substantial 
in terms of economic harm averted for homeowners. Some of the loans 
that were made in the housing bubble that led to the mortgage crisis 
showcase the potential harmful consequences of consumers choosing loans 
that are not a good fit for them. Taking out a loan that is a poor 
match for the consumer's need can have a devastating effect on that 
homeowner and his or her family; the monetary costs alone are estimated 
at $7,200.\331\ In addition, research has consistently shown that each 
foreclosure has a number of externalities that will have a negative 
effect on the other homeowners in the vicinity either through the 
displacement of demand that otherwise would have increased the 
neighborhood prices, reduced valuations of future sales if the buyers 
and/or the appraisers are using the sold foreclosed property as a 
comparable, vandalism, and disinvestment.\332\ Furthermore, as the 
recent financial crisis demonstrates, the economy as a whole can suffer 
grave harm if enough consumers find themselves in unaffordable 
mortgages. For a fuller discussion of the cost and impact of the recent 
financial crisis, see section II.A above.
---------------------------------------------------------------------------

    \331\ http://www.mortgagenewsdaily.com/622008_Foreclosure_Costs.asp.
    \332\ There are several papers documenting various magnitudes of 
the negative effect on the nearby properties. Data in Massachusetts 
from 1987 to 2009 indicate that aside from a 27% reduction in the 
value of a house (possibly due to losses associated with 
abandonment), foreclosures lead to a 1% reduction in the value of 
every other house within 5 tenths of a mile. See John Y. Campbell, 
Stefano Giglio, and Parag Pathak, Forced Sales and House Prices, 
American Economic Review 101(5) (2011), abstract available at: 
http://www.aeaweb.org/articles.php?doi=10.1257/aer.101.5.2108. Data 
from Fannie Mae for the Chicago MSA, show that a foreclosure within 
0.9 kilometers can decrease the price of a house by as much as 8.7%, 
however the magnitude decreases to under 2% within five years of the 
foreclosure. See Zhenguo Lin, Eric Rosenblatt, and Vincent W. Yao. 
``Spillover Effects of Foreclosures on Neighborhood Property 
Values,'' The Journal of Real Estate Finance and Economics, 2009, 
38(4), 387-407. Similarly, data from a Maryland dataset for 2006-
2009 show that a foreclosure results in a 28% increase in the 
default risk to its nearest neighbors. See Charles Towe and Chad 
Lawley, 2011, ``The Contagion Effect of Neighboring Foreclosures,'' 
SSRN Working Paper 1834805.
---------------------------------------------------------------------------

    In addition to the benefits that may result from the new initial 
disclosures, the new closing disclosures also may benefit consumers in 
several ways. First, the new disclosures have the potential to make 
closings more efficient, and savings to creditors and settlements 
agents from a more efficient closing process likely will be almost 
fully passed through to consumers. The potential efficiency gains come 
from covered persons spending less time explaining the disclosure to 
the consumer because the new Closing Disclosure is easier to understand 
and compare to the Loan Estimate and because the new Closing Disclosure 
will be received three business days in advance of consummation.\333\ 
For these reasons, the Bureau believes that the rule could save up to 
half an hour of a covered person employee's time or $17 per 
closing.\334\ At a pace of 7,600,000 covered mortgage transactions per 
year, the rule could result in saving $130,000,000 per year. The Bureau 
believes that most of these savings are likely to be passed on to 
consumers since these are marginal savings on each transaction.
---------------------------------------------------------------------------

    \333\ Research indicates that cognitive processes take more time 
when evaluating changes in terms. See, e.g., Christopher Chabris et 
al., The Allocation of Time in Decision-Making, Journal of the 
European Economic Association (2009) (decision-makers spend more 
time on decisions when their estimates of the value of the best 
option is closer to the estimate of the value of the next best 
option); Mieneke W.H. Weenig and Marleen Maarleveld, The Impact of 
Time Constraint on Information Search Strategies in Complex Choice 
Tasks, Journal of Economic Psychology (2002) (in complex choice 
tasks, screening is based on fewer attributes when time pressure is 
imposed).
    \334\ Based on an estimate of settlement agent total 
compensation of $34 per hour. Based on 2011Q4 weekly wages in the 
title abstract and settlement industry from the Bureau of Labor 
Statistics series ENUUS000405541191, assuming 40 hours worked per 
week and that 66.6 percent of compensation is wage compensation.
---------------------------------------------------------------------------

    Second, because of the format and timing of the new Closing 
Disclosure, consumers may well be better able to identify discrepancies 
between the final costs and estimated costs and may as a result be more 
likely to question and negotiate with respect to these changes. The 
magnitude of this benefit will depend on the extent to which there are 
cost increases today and the frequency with which consumers are able to 
successfully negotiate reductions in such changes. The Bureau is unable 
to quantify either of these effects, but as noted above each dollar in 
per-transaction average savings translates into $7,600,000 in aggregate 
consumer savings.
2. Major Costs of the Rule
    The major costs of the rule are one-time costs, primarily labor 
costs, that

[[Page 80076]]

creditors \335\ and settlement agents \336\ will incur to update 
systems and procedures to comply with the rule.\337\ The bulk of the 
costs imposed on creditors by the final rule are costs associated with 
implementing new processes necessary for compliance with the new 
integrated disclosure requirements. These include: training staff, 
coordinating with settlement agents, changing processes to ensure that 
consummation is not delayed due to the three-business-day waiting 
period, software testing, troubleshooting, and ensuring smooth system 
functioning across different software programs. The Bureau believes 
that the cost of updating software will fall largely on software 
vendors, on which the vast majority of creditors rely.\338\ The Bureau 
believes that the ongoing costs of complying with the regulation will 
not exceed the costs of complying with the existing regulations, and 
therefore that the additional ongoing cost of this regulation is zero.
---------------------------------------------------------------------------

    \335\ For the purposes of this section, the Bureau examines 
creditors and mortgage brokers together. Mortgage brokers are likely 
to incur costs, including training costs, similar to the costs that 
creditors will incur for their loan officers. The Bureau estimates 
the number of loan officers involved in rule implementation based on 
the number of applications and originations that each creditor 
processes. Thus, some of the staff included in the Bureau's estimate 
of loan officers are actually mortgage brokers, and thus their costs 
of complying are included in these calculations, including, for 
example, the training cost of 8 hours per loan officer.
    \336\ As used here, ``settlement agent'' includes anyone who can 
conduct the settlement, including attorneys or escrow companies in 
several states.
    \337\ Some service providers, such as software vendors, will 
incur costs, as well, as they update their products to comply with 
the final rule, but these are not covered persons for the purposes 
of this analysis.
    \338\ Some of the SERs reported that they expect vendors to pass 
through the cost of updating software to their clients. However, the 
Bureau is not aware of this happening in connection with the January 
2013 rules. Moreover, there is a strong argument grounded in 
standard economic theory suggesting that vendors should not pass 
through any of these costs to their clients. Moreover, the Bureau 
believes that many vendor contracts are structured in a way that 
vendors would not be able to pass through any cost increase due to a 
regulation-related software update such as this one.
---------------------------------------------------------------------------

    Because the costs of the regulation are one-time investments, firms 
are expected to amortize this cost over a period of years. In this 
analysis the Bureau amortizes all costs over five years, using a simple 
straight-line amortization. The Bureau estimates that the one-time 
costs to creditors of complying with the rule are approximately 
$207,000,000 per year for five years. This is approximately $27 per 
covered transaction, at the 2011 annual rate of originations.\339\ In 
comparison, average creditor profits from originating a mortgage were 
approximately $1,100 per transaction in 2011 Q4.\340\ As noted above, 
almost all of the costs to creditors are allocations of the labor costs 
associated with the employees who will perform the implementation work. 
It is possible that some of the employees involved in implementation 
will be current employees assigned to implementation related tasks as 
part of their regular, ongoing job responsibilities, so creditors' out-
of-pocket costs might be less than estimated above. The Bureau 
estimates that affected employees will spend three percent of their 
paid time on implementation of the rule during the approximately 18 
months of implementation, with many affected employees spending less 
time than this and a few spending a larger share of their time on 
implementation.
---------------------------------------------------------------------------

    \339\ Note that these costs are fixed. The Bureau assumes that 
creditors are profit maximizing and will not pass through these 
costs to consumers. To the extent that this assumption is not 
satisfied, the Bureau believes that the pass-through will be 
minimal. While the Bureau does not believe that this will occur and 
does not have any evidence suggesting that, While it is 
theoretically possible that some creditors may exit the mortgage 
market solely due to the final rule, the Bureau is not aware of any 
evidence supporting this and does not believe it will occur. Even if 
this were to occur, the Bureau believes that there will be a 
sufficient number of creditors left in the market to ensure that 
there is at most a minimal increase in prices.
    \340\ Mortgage Bankers Association. ``MBA: Fourth Quarter 
Mortgage Banker Production Profits Decline Despite Higher 
Origination Volumes.'' 5 April 2012. Available at http://www.mortgagebankers.org/NewsandMedia/PressCenter/80399.htm. Note 
that profit per origination reported in this quarterly survey 
increased since then, but the Bureau uses the Q4 2011 number to be 
consistent with the 2011 HMDA data used throughout the analysis.
---------------------------------------------------------------------------

    Settlement agents will also incur costs of new process 
implementation. Amortized over five years, settlement agents' costs are 
approximately $67,800,000 per year or $9 per covered transaction. 
Almost all of these costs are also allocated labor costs. It is 
possible that some of the employees involved in implementation will be 
current employees assigned to implementation related tasks as part of 
their regular, ongoing job responsibilities, so creditors' out-of-
pocket costs might be less than estimated above. The Bureau estimates 
that the share of the affected employees' time devoted to this one-time 
implementation cost of the rule during the approximately 18 months of 
implementation is less than four percent.
    As noted above, the significant costs incurred by covered persons, 
both creditors and settlement agents, are one-time implementation 
costs. The Bureau believes that the ongoing costs of the rule are 
negligible, relative to existing regulatory requirements, and that 
there may be ongoing net savings for covered persons due to fewer 
different forms and lower paperwork burden, including the incorporation 
of the ECOA Appraisal notification and the RESPA servicing application 
disclosure into the Loan Estimate. To the extent these savings occur, a 
portion, if not all, of them might be passed through to consumers.
    To the extent that consumers shop more and to the extent that 
reduces prices in the market, creditors and providers of settlement 
services listed in the Loan Estimate will lose some of the markup on 
their products. These costs likely will be alleviated, however, by more 
consumers entering the market if this price decrease materializes. 
Again, to the extent that this price decrease occurs, relatively 
inefficient creditors and service providers are likely to lose market 
share to the more efficient creditors and service providers. While that 
is a cost to the less efficient entities, this is arguably a benefit to 
the market overall. The Bureau does not possess and is not aware of any 
data that would let it quantify these costs, over and above the 
hypothetical scenarios described above.
    In addition to mandating integration of the TILA and RESPA 
disclosure requirements, the Dodd-Frank Act added additional mortgage 
loan disclosure requirements to TILA. The Bureau has decided to 
implement most of these additional requirement in the final rule--as 
part of the integrated disclosures where possible, and in separate 
disclosure forms where necessary. If these additional requirements were 
implemented separately, the aggregated cost of the multiple rules may 
have been greater than the cost of this final rule. The separate 
disclosure forms (the Post-Consummation Escrow Cancellation Notice and 
the Partial Payment Policy disclosure) will be relatively low cost to 
implement due to the fact that the creditors will be revamping their 
origination processes in order to be able to provide the Loan Estimate 
and the Closing Disclosure. Since the Bureau believes that the marginal 
cost of implementing the separate forms is insignificant given that the 
creditors and the vendors are already responsible for changing their 
processes for the combined TILA and RESPA forms, the Bureau 
concentrates this analysis on the costs of implementing the combined 
forms.
3. Comments on the Impact Analysis in the Proposed Rulemaking
    Comments received in response to the proposed rule that are 
relevant to this 1022 analysis mainly addressed (i) the

[[Page 80077]]

proposed changes to the APR definition, (ii) the proposed requirement 
that records be maintained in electronic, machine-readable format, 
(iii) the proposed requirement for a new Closing Disclosure and new 
three-business-day waiting period if there were non-trivial changes in 
closing costs after the Closing Disclosure is provided to the borrower, 
and (iv) the impact of the proposed rule on settlement agents. As noted 
above, the Bureau has decided not to finalize the proposed APR and 
machine-readable provisions and the Bureau has narrowed the 
circumstances in which a new Closing Disclosure and new three-business-
day waiting period is required. With respect to the impact on 
settlement agents, the Bureau addresses these comments in section E 
below. A number of commenters addressed other elements of the proposed 
1022 analysis, and these likewise are addressed in section E below.
    Commenters frequently asserted that the costs of implementing the 
regulation will ultimately fall on borrowers. The Bureau disagrees. 
Assuming that all of the business entities are profit-maximizing, 
standard microeconomic theory implies that any fixed costs should not 
be passed through to the consumer of the product.\341\
---------------------------------------------------------------------------

    \341\ Note that effectively non-profit entities compete in the 
same market and will, at least to some extent, follow the same 
pattern of behavior.
---------------------------------------------------------------------------

    A land title association's comment included an economic study of 
some aspects of the proposed rule. The study assumed without more that 
because certain costs are currently adjusted within three business days 
of consummation, the same costs will be adjusted within three business 
days of consummation at the same frequency even after the final rule 
takes effect. The study then proceeded to quantify costs of the rule as 
proposed to consumers and to the economy in general. Some of the 
sources of crucial assumptions were not cited, such as the assumption 
described above, making it difficult to evaluate the study's 
conclusions. Moreover, the study was based on the broad ``redislosure 
triggers'' provided for in the proposed rule. Given that the triggers 
for redisclosure have been considerably narrowed in the final rule 
(Sec.  1026.19(f)(2)(i) and (ii)), aspects of the study based on the 
proposed triggers are no longer relevant. As a result of these numerous 
deficiencies, the Bureau was not able to rely on the study in preparing 
this final 1022 analysis.
4. Major Provisions To Be Analyzed
    The analysis below considers the benefits, costs, and impacts of 
the following major provisions of the final rule:
    1. The integration of the initial and closing disclosures (the Loan 
Estimate and Closing Disclosure, respectively);
    2. The definition of the term ``application'';
    3. Permissible changes to settlement costs and redisclosure of 
initial disclosures;
    4. Provision of the Closing Disclosure; and
    5. Implementation of certain new disclosures mandated by the Dodd-
Frank Act.
    With respect to each major provision, the analysis considers the 
benefits, costs, and impacts to consumers and covered persons. The 
analysis also addresses certain alternative provisions that were 
considered by the Bureau in the development of the final rule, but were 
not adopted.

C. Baseline for Analysis

    Section 1022 of the Dodd-Frank Act permits the Bureau to consider 
the benefits and costs of the final rule solely compared to the state 
of the world in which the statute takes effect without an implementing 
regulation. As in the analysis published with the proposed rule, and to 
provide the public better information about the benefits and costs of 
the statute, however, the Bureau has chosen to evaluate the benefits, 
costs, and impacts of the major provisions of the final rule against a 
pre-statutory baseline. That is, the Bureau's analysis below considers 
the benefits, costs, and impacts of the relevant provisions of the 
Dodd-Frank Act combined with the final rule implementing those 
provisions relative to the regulatory regime that pre-dates the Dodd-
Frank Act and remains in effect until the final rule takes effect.\342\ 
The baseline considers economic attributes of the relevant market and 
the existing regulatory structure. The Bureau has not received any 
comments on the baseline used.
---------------------------------------------------------------------------

    \342\ The Bureau has chosen, as a matter of discretion, to 
consider the benefits and costs of those provisions that are 
required by the Dodd- Frank Act in order to better inform the 
rulemaking. The Bureau has discretion in future rulemakings to 
choose the relevant provisions to discuss and to choose the most 
appropriate baseline for that particular rulemaking.
---------------------------------------------------------------------------

D. Coverage of the Final Rule

    The final rule requires provision of the integrated disclosures for 
closed-end consumer credit transactions secured by real property, other 
than reverse mortgages subject to Sec.  1026.33. As discussed in the 
section-by-section analysis of Sec.  1026.19 above, the Dodd-Frank Act 
generally directs the Bureau to establish an integrated disclosure for 
``mortgage loan transactions'' that are ``subject to both or either 
provisions of'' RESPA sections 4 and 5 and TILA. TILA and RESPA differ 
in the types of transactions to which their respective disclosure 
requirements apply. The scope of the integrated disclosure provisions 
reconciles these differences, recognizing that certain transaction 
types may be inappropriate for the integrated disclosures.
    Notably, the integrated disclosure provisions of the final rule do 
not apply to reverse mortgages and HELOCs, which are within the 
statutory scope of TILA and RESPA, because those transactions are 
fundamentally different from other types of mortgage credit since they 
do not amortize in the same way as closed-end, forward mortgage loans. 
The integrated disclosure provisions also do not apply to dwellings 
that are not secured by real property,\343\ which are subject to TILA 
but not RESPA, or to creditors that originate fewer than five loans in 
a year, which are subject to RESPA but not TILA. The integrated 
disclosure provisions do, however, apply to construction-only loans, 
vacant-land loans, and loans secured by 25 acres or more, although 
these transactions are currently exempt from RESPA coverage, because 
the Bureau believes that excluding these transactions would deprive 
consumers of the benefit of enhanced disclosures.
---------------------------------------------------------------------------

    \343\ One alternative considered by the Bureau was to include 
chattel loans, such as those for manufactured housing not inclusive 
of land, but due to the differences in the informational elements 
required in chattel lending compared to the informational 
requirements of lending secured by real property or a dwelling, 
chattel loans are not covered by the final rule.
---------------------------------------------------------------------------

E. Potential Benefits and Costs to Consumers and Covered Persons

1. Integrated Initial and Closing Disclosures
    The final rule requires that the Loan Estimate be provided to 
consumers no later than three business days after receipt of the 
consumer's application, to replace the early TILA disclosure and RESPA 
GFE, and that the Closing Disclosure be received by consumers at least 
three business days prior to consummation, to replace the final TILA 
disclosure and RESPA settlement statement. As discussed above, TILA 
authorizes the Bureau to publish model forms for the TILA disclosures, 
while RESPA authorizes the Bureau to require

[[Page 80078]]

the use of standard forms. The final rule requires the use of standard 
Loan Estimate and Closing Disclosure forms for mortgage loan 
transactions that are subject to RESPA and TILA. For transactions that 
are subject only to TILA, however, the forms are not required. Rather, 
consistent with the provisions of that statute, the forms are model 
forms. The final rule also incorporates prior informal guidance 
regarding compliance with HUD's 2008 RESPA Final Rule into Regulation Z 
and official commentary, as necessary and appropriate.
    In considering the benefits and costs of the Loan Estimate and 
Closing Disclosure, the Bureau notes that most of the costs associated 
with the final rule will likely be one-time costs associated with 
adjusting to the new requirements, while the benefits will persist over 
time. The Bureau believes that because these disclosures may lead to 
consumers making more informed choices, some of them may obtain 
mortgages that are lower cost, or in some other way preferable, than 
the mortgages they would obtain otherwise. Consumers may also decide 
not to take out a mortgage at all if, given sufficient information, 
they decide that it is not in their interest.
a. Benefits to Consumers
    i. The Loan Estimate. The integration of the early TILA disclosure 
and the RESPA GFE into the Loan Estimate will have several benefits for 
consumers. The Kleimann Quantitative Study Report shows that the Loan 
Estimate will facilitate better consumer understanding of the loan 
terms and closing costs of possible loans than do the current 
disclosures. The Loan Estimate will also make it easier for consumers 
to compare different loans, either different products from a single 
creditor or loans from different creditors than can be done with the 
current disclosures. In addition, the harmonization of the Loan 
Estimate and Closing Disclosure forms will make it easier for consumers 
to compare the estimated information they initially receive from 
creditors with the actual costs of the loan than can be done with the 
current disclosures. The benefits of this third effect are discussed 
below, in the section on the benefits of the Closing Disclosure.
    The Loan Estimate will make it easier for consumers to understand 
their loan in several ways. First, the Kleimann Quantitative Study 
Report shows that the Loan Estimate will make it easier for consumers 
to understand the loan terms and closing costs of potential loans.\344\ 
The Loan Estimate emphasizes information that is important to consumer 
understanding of the mortgage transaction, and deemphasizes information 
that is either confusing to consumers or that may not be directly 
utilized by consumers, such as the APR, which current TILA disclosures 
focus on as a measure of the cost of credit.\345\ Instead, the Bureau's 
testing indicates that consumers focus on other information that is 
less prominently disclosed on current Federal disclosures than the APR, 
or that is not required on current Federal disclosures.\346\ See Macro 
2009 Closed-End Report at iv-v. Accordingly, the Bureau developed the 
Loan Estimate to prioritize and clearly display the information that 
consumers readily understand and is most important to them in 
understanding the loan and the underlying real estate transaction, such 
as the interest rate, monthly payment amount, and settlement costs. The 
design displays this key information in a manner that enables consumers 
to locate it quickly on the form by using highly visible headings and 
labels and limiting the amount of text on the form. Based on the 
results of its consumer testing and outreach, described in part III 
above and in the Kleimann Testing Report as well as the results of the 
Kleimann Quantitative Study Report, the Bureau believes the Loan 
Estimate is easier for consumers to use and understand than current 
Federal disclosures.\347\
---------------------------------------------------------------------------

    \344\ See Kleimann Quantitative Study Report at 68.
    \345\ As discussed in the section-by-section analyses of Sec.  
1026.37(l) and Sec.  1026.38(o)(4), above, research conducted by the 
Board and HUD, as well as consumer testing conducted by the Board 
and the Bureau, indicate that consumers do not understand the APR or 
how to use it when comparing loans and often confuse the APR with 
the loan's interest rate.
    \346\ Debra Stark et al., When is Consumer Understanding 
Necessary To Make Wise Home Loan Decisions? Testing Enhanced APR 
Disclosure and General Financial Literacy (2013), available at 
http://ssrn.com/abstract=2294590 or http://dx.doi.org/10.2139/ssrn.2294590. The finding presented in Stark et al. (2013) is not to 
the contrary. The article contends that consumers better utilize the 
APR when it is more prominently displayed on the first page of the 
disclosure accompanied by a ``lower is better'' statement. This is 
predicated on the assumption that lower APR is always better, which 
may not hold for all consumers for all loans. Consumers face a 
tradeoff between interest rate and finance charges, and depending on 
their circumstances, a higher APR loan may actually give them higher 
utility. In addition, the findings may not demonstrate that 
consumers understand and utilize the APR, but may instead 
demonstrate that consumers can follow the direction on the first 
page of the study's disclosure that the lower APR number is better.
    \347\ The Kleimann Quantitative Study Report, at page 41, shows 
that consumers were better informed after utilizing the Loan 
Estimate form on a variety of topics, including the APR.
---------------------------------------------------------------------------

    The Kleimann Quantitative Study Report also shows that the Loan 
Estimate will make it easier for consumers to understand the risks 
associated with a loan because the form emphasizes risk factors that 
are either less prominently disclosed or are not found on current 
Federal disclosures. For example, the first page of the Loan Estimate 
clearly discloses whether a loan will or may experience future changes 
to interest rate, monthly payment amount, or to the loan's principal 
balance as a result of negative amortization, by using simple text and 
highly visible capitalized type in a bold font to indicate the 
possibility of such changes. These disclosures conform to the best 
practices recommended by experts in the area for presenting numeric 
health information, which, similar to financial information, requires 
numeracy skills and risk assessments. In particular, the forms ``reduce 
required inferences and calculations.'' \348\ Furthermore, the 
disclosure of ranges for variable-rate products further clarifies the 
variable nature and potential risk of these products. Available 
evidence indicates that some mortgage borrowers may have difficulty 
understanding or at least recalling details of their mortgage, 
particularly the terms and features of adjustable-rate mortgages.\349\ 
These disclosures may help reduce the likelihood that consumers will 
experience payment shock due to future payment changes. In addition, 
the Loan Estimate prominently discloses total monthly payment amounts, 
including estimated amounts for taxes, insurance, and assessments, and 
whether or not an escrow account would be established for the payment 
of such amounts. This disclosure will make it easier for consumers to 
consider the loan and underlying real estate transaction's overall 
affordability, as compared to current Federal forms.
---------------------------------------------------------------------------

    \348\ Paul Slovic et al., Numeracy Skill and the Communication, 
Comprehension and Use of Risk-Benefit Information, in The Feeling of 
Risk: New Perspectives on Risk Perception 345-352 (Earthscan 2010).
    \349\ Brian K. Bucks & Karen M. Pence, Do Borrowers Know their 
Mortgage Terms?, J. of Urb. Econ. (2008), available at http://works.bepress.com/karen_pence/5 and James Lacko & Janis Pappalardo, 
Improving Consumer Mortgage Disclosures: An Empirical Assessment of 
Current and Prototype Disclosure Forms (2007).
---------------------------------------------------------------------------

    The integration of the forms may also reduce the number of forms 
that consumers receive, mitigating ``information overload'' and making 
it easier for consumers to identify important information. With the 
current Federal disclosures, consumers who are shopping between 
creditors, or comparing loans from one creditor need to work through 
four separate forms to compare two loan products, which

[[Page 80079]]

amount to a total of ten pages. But with the Loan Estimate, consumers 
need to work with only two forms to compare two loan products, and only 
six total pages. In addition, because the format of the Loan Estimate 
prioritizes the information that consumers actually use to understand 
and compare loans, placing it on the first page, consumers could 
potentially compare two loans using only the first page of the Loan 
Estimate for each. Since the Bureau's quantitative testing revealed 
\350\ that the Loan Estimate is substantially more understandable for 
consumers than the current early TILA disclosure and RESPA GFE, the 
Bureau therefore believes that the new form will enable consumers to 
make more informed choices when they are considering a mortgage.
---------------------------------------------------------------------------

    \350\ See Kleimann Quantitative Study Report at 45.
---------------------------------------------------------------------------

    The Bureau believes that better understanding of closing costs and 
loan terms will benefit consumers in several ways. It may help 
consumers to make better decisions about whether to take out a loan at 
all, which type of loan to take out, and which creditor to borrow from. 
Some borrowers, such as those who may benefit slightly from refinancing 
or for whom whether to rent or buy is a difficult decision, will be 
close to the margin of taking out a loan or not taking out a loan. 
Improved understanding of the costs of borrowing will allow those 
consumers to make a more informed decision about whether to borrow.
    For consumers who are borrowing, a better understanding of closing 
costs and loan terms will enable them to better pick the loan product 
that suits their needs and circumstances. It may also enable consumers 
to identify loans with features that are only suitable for some 
borrowers, such as negative amortization or balloon payments, and 
evaluate whether those features make sense for them. The Bureau is 
concerned that, prior to the mortgage crisis, some borrowers were 
unable to identify and understand from the Federal disclosures at the 
time particular loan features that presented significant risks and thus 
entered into loans with these features without understanding the risks 
they were taking. This is consistent with the literature.\351\
---------------------------------------------------------------------------

    \351\ See, e.g., Benjamin J. Keys et al., Did Securitization 
Lead to Lax Screening? Evidence From Subprime Loans, 125 Q. J. of 
Econ. 307 (2010) available at doi:10.1162/qjec.2010.125.1.307.
---------------------------------------------------------------------------

    The Bureau believes that the Loan Estimate may also facilitate 
consumer shopping for loan offers and creditors, and could potentially 
affect both the evaluation of different offers and the number of offers 
consumers obtain. Existing research suggests that consumers do not shop 
extensively when selecting a mortgage. Surveys of mortgage borrowers 
suggest that roughly 20 to 30 percent of borrowers contact one creditor 
and a similar fraction consider only two creditors.\352\ Making the 
terms of a given loan easier to understand will make it easier for 
consumers to compare loans. As noted above, the Loan Estimate 
prioritizes on the first page the information that consumers generally 
use to compare loans (e.g., interest rate, monthly payment, and closing 
costs). As discussed in part III, above, the Bureau conducted extensive 
qualitative and quantitative consumer testing of the Loan Estimate to 
ensure that it enables consumers to understand and compare the terms 
and costs of various loans. During the testing process, consumers were 
able to use the form to compare loans and select the loan that best met 
their preferences (e.g., a fixed rate or lower closing costs). In 
addition, the final rule requires that all creditors use a standard 
format for transactions that are subject to RESPA, which the Bureau 
understands to be the majority of mortgage transactions, ensuring that 
consumers are presented information about loan terms and costs in the 
same way across multiple loans and multiple creditors and making 
comparisons easier. Making it easier for consumers to compare products 
may have two effects. First, it may make shopping more effective, 
leading consumers to choose the loan that best meets their needs 
amongst a given set of loans. Second, it may also lead to more 
shopping, because the task of comparing loans is simpler.
---------------------------------------------------------------------------

    \352\ Jinkook Lee & Jeanne M. Hogarth, Consumer Information 
Search for Home Mortgages: Who, What, How Much, and What Else?, 9 
Fin. Servs. Rev. 277 (2000), available at http://dx.doi.org/10.1016/S1057-0810(01)00071-3.
---------------------------------------------------------------------------

    In addition to providing consumers with clear information about 
important mortgage terms and closing costs, the Loan Estimate makes 
clear to consumers which settlement services they can shop for. To the 
extent that consumers use this information to shop for some settlement 
services, they may identify service providers that offer better prices 
or better suit their needs. In a recently released study of title 
services and title insurance based on RESPA settlement statements for 
FHA loans, HUD and the Urban Institute estimated that borrowers in some 
jurisdictions could save several hundred dollars if they searched for 
and purchased title services and title insurance of their own 
choosing.\353\
---------------------------------------------------------------------------

    \353\ U.S. Dep't of Hous. & Urban Dev. and The Urban Inst., What 
Explains Variation in Title Charges? A Study of Five Large Markets 
(2012), available at http://www.huduser.org/portal/publications/hsgfin/title_charges_2012.html (HUD Title Charge Study).
---------------------------------------------------------------------------

    As noted above, the Bureau believes that increased borrower 
shopping, both in the mortgage and in the settlement services markets, 
will benefit not only borrowers who shop, but also other borrowers as 
well. More borrowers engaging in shopping exerts a positive externality 
on the rest of the borrowers due to creditors and service providers 
becoming more competitive, leading to lower prices for everyone and a 
more efficient marketplace.
    ii. The Closing Disclosure. The Bureau's Quantitative Study shows 
that the integration of the final TILA disclosure and the RESPA 
settlement statement will benefit consumers by allowing them to better 
understand the actual terms and costs of their loan and the other costs 
of the loan transaction. As with the Loan Estimate, the Bureau 
developed the integrated Closing Disclosure through several rounds of 
form design and consumer testing.
    The Bureau's Quantitative Study shows that the Closing Disclosure 
is more understandable for consumers than the current TILA disclosure 
and RESPA settlement statement.\354\ As described below, the final rule 
includes a requirement that the Closing Disclosure be received by 
borrowers three business days prior to consummation. The Bureau also 
believes the Closing Disclosure will improve the ability of consumers 
to compare the terms and costs on the Loan Estimate with the actual 
loan terms and closing costs. The Bureau designed the Loan Estimate and 
Closing Disclosure to work together; the two forms use consistent 
formatting and language to facilitate consumers' ability to identify 
any changes that occurred during the underwriting process. For example, 
the first page of the Loan Estimate, where key loan terms are disclosed 
to consumers, is nearly identical to the first page of the Closing 
Disclosure, and the first page of the Closing Disclosure specifically 
directs consumers to compare the two forms. The second pages of the 
Loan Estimate and the Closing Disclosure also use the same order and 
grouping of settlement fees and costs, making it easier for consumers 
to identify changes. During the Bureau's qualitative consumer testing, 
consumers were able to use the second pages of the Loan Estimate and

[[Page 80080]]

the Closing Disclosure together to identify changes in individual 
costs, often placing the forms side-by-side, which was enabled by the 
matching order and groupings.\355\ Results from the Kleimann 
Quantitative Study Report show that the respondents with the new forms 
scored significantly higher on various performance measures of the 
initial and final disclosures.\356\ In addition, page three of the 
Closing Disclosure contains a ``Calculating Cash to Close'' table that 
identifies categories of costs that changed from the time the Loan 
Estimate was provided to the time the Closing Disclosure was provided. 
The Bureau believes these features will improve consumers' ability to 
understand their actual loan terms and costs, and compare early and 
final disclosures and identify changes in loan terms and costs, which 
may better enable consumers to recognize and question changes in 
settlement costs or loan terms from the Loan Estimate. This may also 
encourage creditors to take care to ensure that Loan Estimates are 
accurate and may discourage unscrupulous creditors from attempting to 
``bait and switch'' consumers with initial Loan Estimates that have 
better loan terms or lower settlement costs than the final transaction. 
Further benefits of the Closing Disclosure are discussed in section D.5 
below.
---------------------------------------------------------------------------

    \354\ See Kleimann Quantitative Study Report at 41.
    \355\ See Kleimann Quantitative Study Report at 47.
    \356\ See Kleimann Quantitative Study Report at 68.
---------------------------------------------------------------------------

b. Magnitude of the Benefits to Consumers of the Revised Disclosures
    Quantifying the magnitude of the benefits of the new Loan Estimate 
or Closing Disclosure would be very challenging. With regard to the 
Loan Estimate, important factors in the magnitude of the benefits to 
consumers would include: (1) How many consumers avoid loans that do not 
suit their needs; (2) how much more consumers shop; (3) how much more 
effective that shopping would be; and, (4) how those changes in 
behavior would translate into changes in the overall market for 
mortgage loans. The Bureau is unaware of data that would make possible 
reliable estimates of these effects. As noted, there is some evidence 
showing that increases in shopping--for example, contacting one more 
creditor or loan originator--can lead to substantial savings for a 
consumer.\357\ As noted above, the Bureau believes that increased 
borrower shopping, both in the mortgage and in the settlement services 
markets, will benefit not only borrowers who shop, but also other 
borrowers as well. More borrowers engaging in shopping exerts a 
positive externality on the rest of the borrowers due to creditors and 
service providers becoming more competitive, leading to lower prices 
for everyone and a more efficient marketplace.
---------------------------------------------------------------------------

    \357\ See Woodward & Hall.
---------------------------------------------------------------------------

    Similarly, quantifying the magnitude of the benefits of the 
integrated Closing Disclosure would be very challenging. One of the 
benefits discussed is that due to the three-business-day provision 
consumers can now better process the information regarding changes in 
terms. But, an estimate of how often these changes occur is necessary 
for the calculation of that benefit. The Bureau is unaware of any data 
that can provide reliable market-wide estimates of the prevalence of 
changes between early TILA disclosures and RESPA GFEs and final loan 
terms and closing costs. While the Bureau did obtain information on 
RESPA GFEs and RESPA settlement statements from multiple creditors 
since issuing the proposal, the Bureau believes that this data is not 
generalizable, as the creditors who shared their data are not active in 
all segments of the industry. Furthermore, this data only concerns 
originated loans, so it would not be possible to calculate the rate of 
attrition between application and settlement even for these creditors. 
In addition, the data was not comprehensive enough to provide reliable 
estimates since it did not include other relevant information, such as 
the prevalence of changes due to changed circumstances, rate locks, and 
tolerance cures. Other important factors affecting the consumer 
benefits of the Closing Disclosure include how much it would affect 
whether consumers recognize those changes or how they react to them and 
the effects on creditors' and settlement service providers' behavior. 
Again, the Bureau does not have a reliable way to estimate these items.
    Despite the challenges to quantifying the benefits of the Loan 
Estimate and the Closing Disclosure, because the mortgage market is so 
large, even very small effects on improving consumers' ability to make 
informed decisions or small effects on prices from greater shopping 
would lead to large savings for consumers. Illustrations of this 
dynamic are discussed above in section B. If consumers were to benefit 
from a reduction in costs, some of the savings would come from reduced 
profits to creditors and mortgage brokers, as creditors and mortgage 
brokers may receive lower prices from better-informed borrowers, while 
other savings would come from a shift of business from less efficient 
to more efficient creditors and mortgage brokers. The reallocation to 
more efficient creditors and mortgage brokers that can originate loans 
at lower cost represents a net savings to society in terms of the total 
resources used to originate mortgage loans.
c. Costs to Consumers
    As noted above, the Bureau does not believe that the integrated 
Loan Estimate or Closing Disclosure will impose any direct costs on 
consumers. The Bureau estimates that the final rule will likely reduce 
the cost per origination. Therefore, the Bureau does not anticipate any 
material adverse effect on consumers' cost or access to credit in the 
long or short term.\358\ Over the longer term, the final rule could 
increase credit access if the expected cost savings materialize and the 
Bureau believes that competition will force creditors to pass on the 
savings to consumers.
---------------------------------------------------------------------------

    \358\ Since the marginal costs are likely to decrease or stay 
the same, the Bureau believes that the price of credit is similarly 
going to decrease or stay the same. Using the same rationale, the 
Bureau believes that there will be no adverse effect on consumers' 
access to credit.
---------------------------------------------------------------------------

d. Benefits to Covered Persons
    The integration of the early TILA disclosure and the RESPA GFE, and 
the revised TILA disclosure and the RESPA settlement statement may 
benefit creditors, mortgage brokers, and settlement agents that provide 
the disclosures. It will reduce the number of pages of forms related to 
the disclosures that covered persons need to prepare and provide for 
each application and the number of disclosure-provision systems and 
processes that covered persons need to maintain. In addition, the 
three-page Loan Estimate replaces a three-page GFE, a two-page early 
TILA disclosure, a one page appraisal notification provided under ECOA 
section 701(e), a one-page servicing disclosure provided under RESPA 
section 6, and addresses other new disclosure requirements in the Dodd-
Frank Act. However, this effect may be mitigated by consumers shopping 
more and therefore requesting more forms overall from different 
creditors.
    Most small entities that participated in the Small Business Review 
Panel process stated that the integrated forms would make it easier to 
explain transactions to consumers. One letter from several small entity 
settlement agents indicated that the new forms could actually lead to 
more questions during a closing. However, that comment may have been 
driven in part by the possibility that the Bureau would require certain 
disclosures, such as the

[[Page 80081]]

approximate cost of funds, which may be difficult to explain to 
consumers. Based on its consumer testing and public comments indicating 
that the approximate cost of funds disclosure would be confusing to 
consumers and not aid consumer understanding, the Bureau determined to 
exempt creditors from providing such disclosure. However, the Bureau 
determined to require the total interest percentage disclosure on the 
integrated disclosures based on its consumer testing results. 
Information submitted by several settlement agents indicates that 
requiring the use of standard forms and clearer regulatory guidance 
could save as much as 30 minutes per closing by reducing borrowers' 
confusion, both by of synchronizing the Loan Estimate and the Closing 
Disclosure, and by standardizing forms across creditors. The final rule 
requires that for loans subject to RESPA, which are the majority of 
transactions subject to the final rule, the integrated disclosures are 
a standard form. Based on industry estimates, the typical hourly wage 
of a settlement agent is $34 per hour,\359\ which translates into a 
dollar savings from the simplified closing forms of $17 per closing. 
Based on the 2011 numbers, this would result in saving of $130,000,000 
per year. The Bureau believes that most of these savings are likely to 
be passed on to consumers since these are marginal savings per consumer 
and most firms operate in a competitive environment.
---------------------------------------------------------------------------

    \359\ Based on 2011Q4 weekly wages in the title abstract and 
settlement industry from the Bureau of Labor Statistics series 
ENUUS000405541191, assuming 40 hours worked per week and that 66.6 
percent of compensation is wage compensation.
---------------------------------------------------------------------------

e. Costs to Covered Persons
    As described above, the Bureau believes that the ongoing costs of 
compliance with the final rule and disclosure requirements it is 
adopting will likely be equal to or less than current ongoing 
compliance costs. The integrated Loan Estimate and Closing Disclosure 
will result in certain one-time costs to revise software and compliance 
systems. The Bureau believes that many of the costs of complying with 
these requirements would be common across the two disclosures, and 
therefore discussed them together here. Under the proposal, 
responsibility for delivering the Loan Estimate would have rested 
solely with the creditor. After analysis and consideration of public 
comments, the Bureau has decided that under the final rule the creditor 
will be responsible for the delivery of the Loan Estimate, but either 
the creditor or a mortgage broker may provide the disclosure if the 
mortgage broker receives the consumer's application. Creditors and 
mortgage brokers will need to adapt their software and compliance 
systems to produce the new forms.\360\ In the proposal, the Bureau 
proposed two alternatives for provision of the Closing Disclosure. 
Under the first alternative, the creditor would have been solely 
responsible for providing the Closing Disclosure to the consumer. Under 
the second alternative, the creditor and the settlement agent would 
have been jointly responsible. For purposes of the proposed 1022 
analysis, the Bureau assumed that creditors would bear the costs of 
implementing the requirements relating to the Closing Disclosure, but 
expected that, to the extent settlement agents would be involved in 
providing the disclosure, their costs would be similar. The Bureau also 
expressly requested comment on this approach to estimating costs to 
covered persons. After analysis and consideration of public comments 
received, the Bureau has decided that under the final rule the creditor 
will be responsible for the delivery of the Closing Disclosure, but 
either the creditor or a settlement agent may provide the disclosure, 
provided that one of them does so. Accordingly, in this final 1022 
analysis, the Bureau provides estimated costs to settlement agents as 
well as to creditors.
---------------------------------------------------------------------------

    \360\ The Bureau calculates the impact of the rule on creditors 
and mortgage brokers combined and uses the term ``creditor'' to 
denote both creditors and mortgage brokers below. The Bureau's 
method of estimation of the number of loan officers is based on the 
number of mortgage applications and therefore accounts for mortgage 
brokers as well. Therefore, any cost estimate based on the number of 
loan officers accounts for the costs associated with mortgage 
brokers as well. In terms of costs calculated on a per entity basis, 
the Bureau believes that creditors could outsource disclosure form 
provision to mortgage brokers if it were more efficient. Thus the 
estimates presented below are overestimates--some of creditors might 
incur less cost while implementing the rule provisions by 
outsourcing to mortgage brokers.
---------------------------------------------------------------------------

    In the proposed 1022 analysis, the Bureau focused on the costs to 
creditors of updating and revising their software and compliance 
systems. The Bureau recognized, however, that such systems updating is 
a complex process that includes costs such as learning about the 
requirements of the rule, and training employees.\361\ In response to 
the Bureau's requests for comment on this aspect of the proposed 1022 
analysis, the Bureau received comments stating that certain of its cost 
estimates were too low, as well as comments suggesting that the Bureau 
had failed to consider certain aspects of such systems updating costs. 
For example, a trade association representing the escrow industry 
asserted that rollout and training would take three months, and a bank 
suggested that the Bureau's estimate of employee training costs should 
not be limited to the cost of training loan officers, but should also 
include the cost of training back-office staff. As indicated below, the 
Bureau has revised its cost estimates in response to these and similar 
comments.
---------------------------------------------------------------------------

    \361\ 77 FR 51116, 51272, 51280 (Aug. 23, 2012).
---------------------------------------------------------------------------

    Based on industry feedback, the Bureau believes that 95 percent of 
originators rely on vendors. The use of loan origination software 
vendors by creditors will substantially mitigate the costs of revising 
software and compliance systems, as the efforts of a single vendor 
would address the needs of a large number of creditors.\362\
---------------------------------------------------------------------------

    \362\ Based on discussions with a leading compliance firm, the 
Bureau believes that these updates, however, will likely be included 
in regular annual updates, and therefore the costs will not be 
directly passed on to the client creditors. As many as 95 percent of 
creditors, therefore, may not pay directly for software updates to 
comply with the new rules.
---------------------------------------------------------------------------

    Based on estimates from small entities that participated in the 
Small Business Review Panel process, the Bureau estimates that the 
small fraction of creditors that maintain their own compliance software 
and systems each will incur costs of roughly $100,000 to update their 
systems to comply with the final rule. Firms are expected to amortize 
this cost over a period of years. In this analysis the Bureau amortizes 
all costs over five years, using a simple straight-line amortization. 
Thus, about five percent of creditors are expected to incur a cost of 
$20,000 per year for five years. The Bureau estimates that there were a 
total of 14,194 banks, savings institutions, credit unions, and 
mortgage companies that originated mortgages in 2011, the most recent 
year for which complete data are available.\363\ The total one-time 
cost for the roughly five percent of creditors that maintain their own 
compliance software and systems (fewer than 1,000 of the over 14,000 
creditors) is therefore $71,000,000 (rounded to the nearest $100,000). 
Amortized over five years, the estimated total annual cost for all such 
creditors to update their compliance systems is $14,200,000.
---------------------------------------------------------------------------

    \363\ Creditors and originator estimates based on analysis of 
HMDA, SNL Call Reports, NCUA Call Reports, and NMLS Call Reports. 
See part VIII below for additional details.
---------------------------------------------------------------------------

    A commenter (an industry trade association representing escrow 
agents) specifically suggested that three months would be required for 
a software vendor member of the association to perform customer rollout 
and customer training once the vendor actually updates the

[[Page 80082]]

software. Relying, in part, on this information, the Bureau assumes 
that each creditor will have an implementation team spend approximately 
three months of full-time equivalent work \364\ on various processes 
necessary for implementation and rollout. For smaller creditors (small 
businesses according to the SBA thresholds of $500,000,000 asset size 
DI and $35,000,000 revenue for non-DIs), this team will consist of a 
compliance officer,\365\ who will spend 50% of his or her time working 
on the implementation team, and an information technology specialist, 
who will also spend 50% of his or her time working on the 
implementation team. For a larger creditor (not a small business 
according to SBA), the Bureau assumes that the implementation team will 
consist of 8 employees, also working for three months full time, 4 
compliance officers and 4 information technology specialists. These 
processes include reading the rule in detail, gap analysis, testing and 
troubleshooting software systems involved in origination, and making 
any necessary changes to policies and procedures. Implementation is 
expected to require a complete rewrite, from the ground up, of both the 
early disclosure and the late disclosures in the mortgage loan process, 
supplemented by a revamp of data standards underlying the data on these 
disclosures; major, foundational changes to technology systems; and 
intense coordination among many parties around new process flows and 
roles and responsibilities.\366\ The total one-time cost is therefore 
$873,200,000 (rounded to the nearest $100,000). Amortized over five 
years, the estimated total annual cost for all such creditors to update 
their compliance systems is $174,600,000.
---------------------------------------------------------------------------

    \364\ For the purposes of this analysis, the Bureau uses full-
time equivalency to simplify the presentation of calculations. Three 
months of full-time equivalency might be, for example, six months of 
50% involvement or one month of full-time work, followed by five 
months of delay, followed by two more months of full-time work for 
some creditors.
    \365\ Here and below, depending on the institution, many of the 
tasks described, including the operational challenges of ensuring 
that the updated software works properly, could be performed by a 
loan officer, a compliance officer, or back office support staff. 
The Bureau believes that the choices made here and below best 
describe a median mortgage originator--an institution that has under 
$200,000,000 dollars in assets. However, the cost estimates would 
not change materially if other assumptions were used.
    \366\ The Bureau believes that coordination is going to be a 
one-time cost accompanied by no incremental ongoing costs. Creditors 
and settlement agents already have to communicate on a host of 
issues. Thus, both parties need to change the procedures associated 
with their already existing coordination. However, once these 
procedures are changed, the Bureau believes that the ongoing costs 
will be the same as now, and has not received any evidence to 
suggest otherwise. Even if there actually will be any ongoing costs, 
the Bureau believes that they will be minimal.
---------------------------------------------------------------------------

    Covered persons will also incur one-time costs associated with 
training employees to use new forms and any new compliance software and 
systems. Several commenters suggested that the training time of a loan 
officer was understated in the 1022 analysis contained in the proposed 
rule. In line with the comments, the Bureau has adjusted the training 
time of a loan officer from two to eight hours, and has added 0.67 
hours of back-office staff training per loan officer hour of training 
to its estimate. Specifically, the Bureau estimates that one trainer 
could train ten loan officers at a time, for an additional one hour of 
trainer time per ten hours of trainee time.\367\ The Bureau estimates 
that there are 79,861 loan officers and other employees that will need 
training. Based on data from the Bureau of Labor Statistics, the Bureau 
estimates that the average total compensation of a loan officer is $48 
per hour and the average total compensation of a back office support 
staff is $26 per hour, for a total training cost of $35,000,000. 
Amortized over five years, this leads to an annual cost of $7,000,000 
for all mortgage creditors combined. The Bureau does not believe that 
there will be any ongoing training burden, over and above the already 
existing annual training that the loan officers are likely to receive.
---------------------------------------------------------------------------

    \367\ Additional back office staff may receive training to 
comply with the new rules. The Bureau believes that these costs are 
likely to be de minimis.
---------------------------------------------------------------------------

    Several commenters stated to the Bureau that the development of 
training materials might impose a cost as well.\368\ The Bureau agrees. 
The Bureau assumes that in each institution two compliance officers 
will spend 30 hours each developing training materials--including 
reading the rule, either developing a training course or arranging for 
procurement of a training course, and attending relevant conferences 
and webinars. This results in an additional cost of $40,000,000. 
Amortized over five years, this leads to an annual cost of $8,000,000. 
Some institutions might find it less expensive to outsource this 
activity, thus the estimate above is likely an over-estimate.
---------------------------------------------------------------------------

    \368\ Commenters included an industry trade association 
representing banks and a title insurance company.
---------------------------------------------------------------------------

    Unless creditors choose not to divide responsibilities with 
settlement agents and provide the Closing Disclosure themselves, 
creditors need to ensure better coordination with settlement 
agents.\369\ Such enhanced coordination is needed both to ensure that 
creditors comply with the rule, under which creditors are responsible 
for provision of the Closing Disclosure regardless of the degree of 
settlement agent involvement, and to ensure fewer unanticipated closing 
delays caused by failures to provide the Closing Disclosure in a timely 
manner. Several commenters stated that these costs would be substantial 
including individual commenters and an industry trade association. The 
Bureau estimates that creditors outside of the top 20 will, on average, 
have an attorney or a manager spend eight hours each of full-time 
equivalent work rearranging division of responsibility with settlement 
agents, and ensuring that the proper processes are in place. This 
results in a cost of $13,100,000 or, amortizing over five years, 
$2,600,000 per year. Of course larger creditors have to coordinate with 
a large number of settlement agents, and this requires more time and 
resources. The Bureau estimates that creditors in the top 20 will, on 
average, have fifty attorneys or managers spend one day full-time 
rearranging division of responsibility with settlement agents, and 
ensuring that the proper processes are in place. This results in a cost 
of $928,600 or, amortizing over five years, $186,000. Although the top 
20 have to coordinate with a larger number of SAs than the smaller 
entities, we expect that there are economies of scale.
---------------------------------------------------------------------------

    \369\ These costs could have been counted instead in the 
Provision of Final Loan Disclosure section below.
---------------------------------------------------------------------------

    Taken together, the Bureau estimates that the total one-time costs 
of complying with the Loan Estimate and Closing Disclosure requirements 
for all mortgage creditors will be approximately $1,033,000,000. 
Amortized over five years, this is an annual cost of $206,700,000 for 
all mortgage creditors combined. For additional perspective, there were 
nearly 8,000,000 mortgage originations in 2011. The estimated one-time 
cost, annualized using a five-year amortization, is therefore less than 
$27 per origination. Note that these costs will not recur, and the 
Bureau expects that ongoing costs will be equal to or less than current 
compliance costs.
    The final rule also requires itemization of certain settlement 
charges that are not permitted to be itemized on the current RESPA GFE 
and RESPA settlement statement forms, which may lead to increased costs 
for covered persons. In HUD's 2008 RESPA Final Rule, HUD predicted that 
removing itemization from the disclosures would

[[Page 80083]]

relieve creditors from preparing lengthy lists of fees and addressing 
consumer questions about such fees. 73 FR 68204, 68276. However, the 
Bureau understands that creditors and settlement agents often provide 
this itemization on separate disclosures to provide additional 
information to consumers regarding such costs, or to comply with State 
law or investor requirements, which mitigates any increased costs 
associated with itemization.\370\ Accordingly, this final rule, by 
including such itemization on the Loan Estimate and Closing Disclosure, 
may obviate the need to produce separate paperwork that creditors and 
settlement agents complete in some cases in connection with 
transactions.
---------------------------------------------------------------------------

    \370\ The Bureau acknowledges that there are differences in cost 
between voluntary and mandatory provision of information. To the 
extent that the practices need to be changed to adhere to the 
standards laid out in this rule, the loan originator (and/or 
settlement agents) will incur a one-time cost. However, the Bureau 
believes that it would be a relatively small software redesign cost 
at most.
---------------------------------------------------------------------------

    As noted above, in the proposal, the Bureau stated its belief that 
settlement agent costs in connection with providing the Closing 
Disclosure would be similar to costs imposed on creditors by the 
Closing Disclosure requirement. The Bureau received a number of 
comments essentially agreeing with this view.
    The Bureau estimates that each settlement agent \371\ will need 
about 20 hours of one-time training. The ongoing periodic training time 
should be similar to the time that it takes currently, if not lower. 
This results in a cost of $45,700,000,\372\ or $9,100,000 per year 
amortized over five years.
---------------------------------------------------------------------------

    \371\ For the purposes of this 1022 analysis, the term 
``settlement agent'' includes anyone who conducts the settlement.
    \372\ According to Bureau of Labor Statistics series EC075SSSZ4, 
there were 77,310 settlement agents in 2007.
---------------------------------------------------------------------------

    Similarly to creditors, settlement agents will incur costs flowing 
from the need to enhance coordination with creditors. The Bureau 
estimates that for each firm providing closing services, one settlement 
agent will spend two full-time weeks ensuring proper coordination with 
creditors. This results in a cost of $2,800,000,\373\ or $600,000 per 
year amortized over five years.
---------------------------------------------------------------------------

    \373\ According to Bureau of Labor Statistics series EC075SSSZ4, 
there were 10,168 title abstract and settlement offices in the US in 
2007.
---------------------------------------------------------------------------

    Again, similarly to creditors, each firm conducting closings needs 
to update its software. While the Bureau expects that the software 
development costs will fall on the software vendors, the Bureau 
believes that there will be implementation costs that will fall on the 
firms conducting settlements, similar to the ones described above in 
the discussion of creditor costs. In particular, the Bureau assumes 
that one settlement agent and one information technology specialist, 
both working 50% of the time on the implementation process, will spend 
three months each reading the rule, performing gap analysis, 
integrating new software, and ensuring its proper operation. This 
results in a cost of $248,900,000, or $49,800,000 per year amortized 
over five years. Finally, each firm will need to develop or procure 
training materials. The Bureau estimates that developing training 
materials will take three full-time work weeks of a settlement agent. 
This results in a cost of $41,500,000, or $8,300,000 per year amortized 
over five years. If the development of training materials requires more 
time and expense than this, the Bureau expects firms to procure 
training materials at the same or lesser cost.
2. Definition of Loan Application
    The final rule revises the regulatory definition of loan 
``application'' to provide clarity to consumers regarding when a Loan 
Estimate must be provided by a creditor or mortgage broker. Under TILA 
and RESPA, a creditor or mortgage broker is not required to provide the 
good faith estimates of loan terms and settlement costs in the early 
TILA disclosure and RESPA GFE until it has received an ``application.'' 
As discussed more fully in the section-by-section analysis of Sec.  
1026.2(a)(3), under current regulations, the receipt of the following 
information by the creditor or mortgage broker constitutes receipt of 
an ``application'': (1) Borrower's name; (2) borrower's monthly income; 
(3) borrower's social security number to obtain a credit report; (4) 
the property address; (5) an estimate of the value of the property; (6) 
mortgage loan amount sought; and (7) any other information deemed 
necessary by the creditor. The seventh item could allow creditors and 
mortgage brokers to delay providing the integrated Loan Estimate until 
after collection of the six specific items, to collect any information 
they deem ``necessary.'' The final rule removes the seventh item (``any 
other information deemed necessary by the creditor'') from the 
definition of ``application.''
a. Benefits to Consumers
    By establishing a bright line standard governing when the Loan 
Estimate must be provided, the final rule will enable consumers to 
understand the application stage of their mortgage loan transactions, 
specifically, when they can obtain the Loan Estimate that contains 
reliable estimates that are subject to the good faith estimate and 
tolerance requirements of Sec.  1026.19(e). This bright line standard 
will better enable consumers to plan their shopping for mortgage loans, 
since it clearly delineates the date by which a consumer will receive a 
Loan Estimate and thus will have all of the information necessary for 
shopping. In addition, this bright line standard will make compliance 
more straightforward for industry and supervisory agencies that examine 
for compliance with the integrated disclosure requirements.
    The Bureau believes that the final rule may benefit consumers by 
causing creditors to provide consumers Loan Estimates marginally 
earlier in the lending process than under the current definition, which 
will give consumers a longer period during which they can rely on the 
Loan Estimates in shopping for their loan. Removing the seventh item 
may allow consumers, at an early stage of the process, to receive 
earlier Loan Estimates that are subject to the limitations on increases 
imposed by Sec.  1026.19(e)(3), whereas today, at an early stage of the 
process, consumers may receive only informal estimates that are not 
subject to those protections. Improved consumer shopping for mortgages 
may result in lower costs to consumers. Given a uniform set of 
disclosures with synchronized timing, consumers who shop are likely to 
have more complete and more easily comparable information than they 
would with heterogeneous informal estimates. As described above, the 
Bureau cannot estimate the magnitude of the benefits of improved 
shopping, but even relatively small improvements could have large 
dollar impacts due to the size of the market.
    As noted above, the Bureau believes that increased borrower 
shopping, both in the mortgage and in the settlement services markets, 
will benefit not only borrowers who shop, but also the other borrowers 
as well. More borrowers engaging in shopping exerts a positive 
externality on the rest of the borrowers due to creditors and service 
providers becoming more competitive, leading to lower prices for 
everyone and a more efficient marketplace.
    The Bureau also believes that the Loan Estimate is a better 
shopping tool for consumers than informal estimates provided to 
consumers prior to receipt of the consumers' application,\374\

[[Page 80084]]

because the Loan Estimate was developed through an extensive consumer 
testing and design process and will present information regarding loans 
provided by different creditors in a standardized format (unlike 
informal estimates) and because certain costs disclosed in the Loan 
Estimate are subject to limitations on increases, as described below. 
The Bureau believes that creditors will be able to provide reliable 
estimates based on the six items that together constitute an 
application under the final rule and that, by receiving cost estimates 
earlier in the mortgage lending process, consumers will have the 
opportunity to compare several different offers at the same time or 
more time to shop for a better deal.
---------------------------------------------------------------------------

    \374\ While the Bureau does not possess any evidence that the 
creditors are currently strategically delaying disclosures due to 
the seventh element, taking this requirement out of the definition 
of application ensures that this does not happen, which the Bureau 
believes will make delivery times more uniform.
---------------------------------------------------------------------------

    The Bureau understands that industry may in response to the final 
rule sequence their application processes to receive additional 
information they deem necessary prior to receipt of the six items. 
However, even if the impact of deleting the seventh item from the 
definition of ``application'' does not move the delivery of the Loan 
Estimate to consumers significantly earlier in the origination process, 
the Bureau believes other significant benefits will accrue to consumers 
from this definition of ``application.'' The Bureau believes that 
providing a bright line standard for the definition of application, 
such that consumers will know the point in time when they are to 
receive the Loan Estimate, will aid consumers' understanding of the 
application stage of their mortgage loan transactions. Consumers will 
be able to understand when they are entitled under this regulation to 
obtain the Loan Estimate that contains reliable estimates that are 
subject to the good faith estimate and tolerance requirements of Sec.  
1026.19(e), which the Bureau believes will better enable consumers to 
shop effectively for mortgage loans.
b. Costs to Consumers
    The Bureau does not believe that eliminating the seventh item in 
the definition of application will lead to costs to consumers. As noted 
above, the Bureau believes that no costs will be passed through to 
consumers by creditors or loan originators.
c. Costs to Covered Persons
    The Bureau understands that eliminating creditors' and mortgage 
brokers' ability to wait to provide a good faith estimate until after 
they receive ``any other information deemed necessary'' could increase 
the burden on creditors and mortgage brokers to the extent that it 
causes them to issue more Loan Estimates than they would under the 
current definition of application. If a creditor or mortgage broker 
obtains additional information from the borrower after the Loan 
Estimate has been issued that affects the costs of the settlement 
service for the loan, the creditor or broker may need to issue a 
revised Loan Estimate. The Bureau is unaware of information that would 
allow it to estimate how often this would occur. The Bureau believes, 
however, if this were to impose substantial costs, creditors and 
mortgage brokers would mitigate this by adjusting their business 
practices surrounding the receipt of applications to gather other 
important information prior to, or at the same time as, they obtain the 
six items that together constitute an ``application.'' In this regard, 
the Bureau notes that, under the final rule, a creditor may request 
such other information prior to obtaining all six items that constitute 
an application without triggering the disclosure requirement. To the 
extent that creditors delay obtaining all six items, it would mitigate 
the benefit to consumers of receiving the form earlier. However, as 
described above, there are other benefits that will accrue to consumers 
from providing a bright line standard for the definition of 
application.
    In developing the final rule, the Bureau also considered removing 
additional items from the regulatory definition of ``application.'' 
However, the Bureau does not believe the other items in the current 
definition of application raise similar concerns regarding creditors' 
ability to delay provision of the early disclosures. Furthermore, the 
Bureau believes that many or all of the six items may be necessary for 
a creditor to provide reliable estimates in many circumstances.
3. Permissible Changes in Settlement Costs/Redisclosures
    The final rule revises current rules regarding the circumstances in 
which a consumer may be charged more at closing for settlement services 
than the creditor estimated in the disclosure provided to the consumer 
within three business days of receiving the application.
    As discussed more fully in the section-by-section analysis of Sec.  
1026.19(e)(3), HUD's 2008 RESPA Final Rule limits the circumstances in 
which a creditor can charge the consumer more at consummation for 
settlement services than the creditor estimated in the RESPA GFE 
provided to the consumer within three business days of receiving the 
application. These rules generally place charges into three categories: 
the creditor's charges for its own services, which cannot exceed the 
creditor's estimates unless an exception applies (``zero tolerance''); 
charges for settlement services provided by third parties, which cannot 
exceed estimated amounts by more than ten percent unless an exception 
applies (``ten percent tolerance''); and other charges that are not 
subject to any limitation on increases (``no tolerance limit''). HUD's 
2008 RESPA Final Rule permits certain limited exceptions in which 
higher charges are permitted, such as when the borrower requests a 
change, when the RESPA GFE expires, or when valid changes in 
circumstance occur. The Bureau is aware of concerns that HUD's 2008 
RESPA Final Rule is both too lax and too restrictive, and also that the 
rule is difficult to understand. The final rule attempts to address 
these concerns by balancing the objective of improving the reliability 
of the estimates creditors give consumers shortly after application 
with the objective of preserving creditors' flexibility to respond to 
unanticipated changes that occur during the loan process. Specifically, 
the final rule applies the zero tolerance category to a larger range of 
charges, expanding it to include fees charged by an affiliate of the 
creditor and fees charged by service providers selected by the creditor 
and fees for services for which the consumer is not permitted to shop. 
A service provider is considered required by the creditor if consumers 
are required to use only that provider or to choose only from a list of 
service providers prepared by the creditor (i.e., if consumers are not 
permitted to shop for their own provider off of the list).
    Some alternatives the Bureau considered in developing the final 
rule included narrowing the exceptions permitting increases in 
settlement charges in order to restrict the ability of a creditor to 
charge more for its own services or for third-party settlement services 
than the creditor initially estimated. However, the Bureau was 
concerned that this approach could prevent creditors from increasing 
settlement charges to reflect justifiable increases in costs. The 
Bureau also considered preserving HUD's 2008 RESPA Final Rule in its 
entirety. However, as discussed above, the Bureau believes that the 
final rule is an improvement over HUD's 2008 RESPA Final Rule because 
it requires creditors to provide consumers with more accurate estimates 
of settlement charges.

[[Page 80085]]

In addition, the final rule includes more guidance than the current 
rule regarding the circumstances in which creditors may revise cost 
estimates.
a. Benefits to Consumers
    The Bureau believes that consumers may benefit when fewer charges 
are permitted to change from the Loan Estimate. Consumers that rely on 
the Loan Estimate to shop for a loan will be able to make decisions 
based on estimated costs that more closely reflect the actual costs 
they would bear, making shopping more effective. For some consumers, 
such as those considering a refinancing that they may or may not decide 
to take out, more reliable information may allow them to make a better-
informed decision about whether to take out a loan at all. Firmer fees 
may also reduce ``gaming'' by unscrupulous creditors that intentionally 
underestimate on initial forms and then impose new or different charges 
near the time of consummation. Reducing uncertainty may also benefit 
consumers by relieving their need to plan for contingencies or other 
consequences that flow from the uncertainty.
    The Bureau cannot quantify the magnitude of these benefits. As 
discussed above, the Bureau is unaware of any data that can provide 
reliable market-wide estimates of the prevalence of changes between 
early TILA disclosures and RESPA GFEs and final loan terms and closing 
costs or of the causes for those changes that occur.
    Expanding the set of costs included in the zero tolerance category 
may also benefit consumers by giving creditors an incentive to control 
the costs imposed by third parties. Currently, creditors have limited 
incentives to control third-party costs. By applying the zero tolerance 
category to a larger range of charges, including charges by affiliates 
of the creditor and some services for which the consumers is not 
permitted to shop, the final rule will cause creditors to absorb more 
increases in costs, and may incent them to seek to minimize the chance 
that these increases will occur. Creditors are in a better position 
than consumers to control these costs, as they are much more familiar 
with these markets than are typical consumers, and they are likely to 
have ongoing relationships with affiliates and settlement service 
providers for services that consumers are not permitted to shop that 
gives them some ability to encourage these providers not to charge more 
than the initial estimate.
b. Costs to Consumers
    The expansion of the set of costs that are subject to a zero 
tolerance may impose costs on some consumers. The restriction on 
changes to these costs may cause some creditors to provide higher 
initial estimates, making shopping less effective as borrowers rely on 
less accurate information. The Bureau believes, however, that these 
effects are likely to be mitigated by competitive pressures that 
encourage creditors not to inflate cost estimates. In addition, the 
final rule requires creditors to make good faith estimates, and thus, 
creditors may be concerned about liability under the rule from 
providing inflated estimates.
c. Benefits to Covered Persons
    Covered persons may also benefit from the final rule because it 
reduces ongoing compliance burden by resolving prior regulatory 
ambiguities about how to comply with TILA and RESPA. For example, the 
final rule provides additional guidance on the current rule regarding 
the circumstances in which creditors may revise costs estimates and the 
use of average cost pricing. The final rule further streamlines and 
clarifies HUD's 2008 RESPA Final Rule by incorporating prior HUD 
guidance into Regulation Z and its commentary, as necessary and 
appropriate. The Bureau is unaware of reliable data showing how often 
creditors will provide additional disclosures once the final rule 
becomes effective. Some creditors, however, have reported that 
additional clarity regarding redisclosure requirements for the RESPA 
GFE and average cost pricing would reduce the cost of compliance, in 
part, by reducing confusion over when redisclosure is permitted or 
required, and thereby reducing the need for legal advice.
    To the extent that the final rule's restriction on certain changes 
in fees reduces bait-and-switch tactics by some creditors, this may 
benefit honest creditors that do not use these tactics.
d. Costs to Covered Persons
    The Bureau understands that covered persons may experience 
increased costs as a result of the final rule, which applies the zero 
tolerance category to a larger range of charges. Since the final rule 
expands the circumstances in which creditors cannot pass increased 
costs to consumers when the initial estimate is lower than the actual 
costs, creditors may be required to absorb more costs when no 
exception, such as a legitimate change in circumstances, is present. 
This impact should be mitigated to the extent creditors are in a 
position to know the typical charges of affiliated firms and firms they 
engage repeatedly and require consumers to use, and can therefore 
provide estimates that are accurate. As discussed above, the Bureau is 
unaware of any data that can provide reliable market-wide estimates of 
the prevalence of changes between early TILA disclosures and RESPA GFEs 
and final loan terms and closing costs, and the causes of those 
changes. Therefore, the Bureau cannot provide estimates of how often 
creditors would have to absorb higher than expected costs that cannot 
be attributed to a changed circumstance. The discussion of average cost 
pricing provided in the ``Consumer Benefits'' section above applies 
here, as well, suggesting that these costs to creditors would be quite 
modest. Creditors may also encounter increased costs in circumstances 
where costs in the newly defined zero-tolerance categories increase in 
ways permitted by an exception. The incidence of these scenarios is not 
known, but the Bureau believes that the resultant costs will be 
negligible.
    The Bureau also anticipates that the final rule may result in 
increased use of affiliated service providers, including settlement 
agents or other providers of settlement services, so that creditors can 
more directly control changes in settlement costs, which could have a 
negative impact on independent providers. Alternatively, the final rule 
may encourage creditors to allow borrowers to choose settlement service 
providers that are not on a list provided to the borrower so that the 
zero percent tolerance requirement would not apply. In addition, the 
Bureau's 2013 ATR Final Rule may mitigate the incentives to utilize 
affiliates.
    Arguably, it is easier for a creditor to ensure that costs do not 
change if the settlement agent is an affiliate. Some commenters have 
argued that the negative impact on independent providers could lead to 
reduced competition for settlement services and ultimately higher costs 
for consumers. The Bureau is unaware of any evidence that such increase 
in costs will occur even if creditors were to increase their use of 
affiliates. On the contrary, economic theory implies that prices to 
consumers might decrease due to an increased utilization of 
affiliates.\375\ However, there have also been concerns about the use 
of affiliates in the real estate market, and whether they are in the 
best interest of consumers. See GAO

[[Page 80086]]

Report Title Insurance, Actions Needed to Improve Oversight of the 
Title Industry and Better Protect Consumers, at p. 33. The Bureau 
acknowledges that creditors may choose not to use affiliates for 
various reasons, including that affiliate fees are included in ``points 
and fees'' for purposes of the Bureau's ability to repay rules and for 
coverage under the Home Ownership and Equity Protection Act.''
---------------------------------------------------------------------------

    \375\ See, for example, Cournot (1838) and Spengler (1950).
---------------------------------------------------------------------------

    Alternatively, the final rule may encourage creditors to allow 
borrowers to choose settlement service providers that are not on a list 
provided to the borrower so that the zero tolerance requirement would 
not apply.\376\ This would appear to benefit independent service 
providers, or at least be neutral relative to current practices. For a 
broader discussion of costs related to the zero-tolerance category, 
please refer to the section-by-section analysis of Sec.  1026.19(e).
---------------------------------------------------------------------------

    \376\ The final rule requires a statement on the list that the 
consumer can select a provider not on the list, as illustrated by 
form H-27 of appendix H to Regulation Z.
---------------------------------------------------------------------------

    Settlement agents may also be affected. As mentioned above, the 
final rule may result in increased use of affiliate service providers. 
Thus, it is conceivable that creditors will choose to perform 
settlement services internally and that more creditors will enter into 
more formal outsourcing/affiliate arrangements with settlement agents, 
which may result in a revenue decrease for independent settlement 
agents. These effects are likely to be mitigated by the points and fees 
thresholds for qualified mortgages in the 2013 ATR Final rule, which 
lessen the incentive to use affiliated service providers. The Bureau 
cannot estimate the magnitude of this revenue decrease and the 
proportion of firms providing settlement agent services that will 
experience this revenue decrease.
4. Provision of the Closing Disclosure
    The final rule requires delivery of the integrated Closing 
Disclosure so that it is received by the consumer three business days 
before consummation in all cases. The final rule makes the creditor 
ultimately responsible for providing the Closing Disclosure, but 
permits creditors to use settlement agents to provide the Closing 
Disclosure, provided that settlement agents comply with all relevant 
requirements concerning the Closing Disclosure. The following 
discussion is limited to the most significant elements of the Closing 
Disclosure requirements. See the section-by-section analyses of 
Sec. Sec.  1026.19(f) and 1026.38 for discussion of the other elements.
a. Timing of Closing Disclosure Provision
    TILA and RESPA establish different timing requirements for 
disclosing final loan terms and costs to consumers. As discussed more 
fully in the section-by-section analyses of Sec.  1026.19(f)(1)(i) and 
(f)(1)(ii)(A), TILA, as implemented by Regulation Z, generally provides 
that, if the early TILA disclosures contain an APR that becomes 
inaccurate, the creditor shall furnish corrected TILA disclosures so 
that they are received by the consumer not later than three business 
days before consummation. On the other hand, RESPA and Regulation X 
generally require that the RESPA settlement statement be provided to 
the borrower at or before settlement.\377\ To meet the Dodd-Frank Act's 
mandate to integrate the disclosures required by TILA and RESPA, and to 
better facilitate consumer understanding of the costs, the final rule 
requires delivery of the integrated Closing Disclosure so that it is 
received by the consumer three business days before consummation. 
Because the Closing Disclosure may change before consummation without 
triggering a new three-business-day waiting period, except in the three 
circumstances discussed above, the Bureau believes it is appropriate to 
implement RESPA section 4, which gives borrowers the right to inspect 
the settlement statement one business day before settlement, by giving 
consumers the right to inspect the Closing Disclosure one day before 
consummation. The Bureau believes that implementing this statutory 
right will reduce the likelihood that consumers will be surprised by 
changes to the Closing Disclosure at the point of consummation. 
Moreover, the Bureau believes a one-day right to inspect will be less 
disruptive to the efficient operation of closings than a three-
business-day redisclosure requirement.
---------------------------------------------------------------------------

    \377\ RESPA also provides for one day advance disclosure upon 
borrower request but settlement agents only need to provide 
information known to them at time of the disclosure. 12 U.S.C. 
2603(b).
---------------------------------------------------------------------------

    To prevent unnecessary closing delays, the final rule clarifies 
that, consistent with other Regulation Z disclosure requirements under 
Sec.  1026.17, where the creditor does not have the actual terms, the 
creditor may provide an estimate based on the best information 
reasonably available to the creditor on the originally provided Closing 
Disclosure. In addition, the final rule also permits a number of 
changes after provision of the Closing Disclosure to reflect common 
adjustments without causing closing delays while protecting consumers 
from major changes that could present significant, long-term financial 
risk. If, between the time the Closing Disclosure is first provided and 
consummation, the loan's APR becomes inaccurate (over and above the 
specified tolerance level), the loan product changes, or a prepayment 
penalty is added, a revised Closing Disclosure must be issued with an 
additional three-business-day period to review the transaction. All 
other changes to the Closing Disclosure may be made without an 
additional three-business-day waiting period, but a revised Closing 
Disclosure must be provided at or before consummation.
    i. Benefits to Consumers. Consumers may benefit from the final rule 
because it will ensure that consumers receive the disclosures far 
enough in advance of consummation so that they can review the final 
details of the transaction. Together with the improved clarity of the 
Closing Disclosure and the comparability of the Loan Estimate and the 
Closing Disclosure, this should allow consumers to have a better 
understanding of the final terms of the transaction and whether and how 
those terms have changed since the consumer received the Loan Estimate. 
Indeed, respondents in the Bureau's Quantitative Study that used the 
integrated disclosures performed statistically significantly better 
than respondents using the current disclosures at answering questions 
comparing their estimated and final loan terms and costs, as well as at 
answering questions about their final loan terms and costs.\378\ The 
mandatory three-business-day waiting period may encourage all creditors 
to take greater care to ensure that Loan Estimates are accurate and may 
discourage unscrupulous creditors from attempting to ``bait and 
switch'' consumers with an initial Loan Estimate that has better loan 
terms or lower settlement costs than the final transaction because 
consumers will have additional time to review the terms of their 
transaction.
---------------------------------------------------------------------------

    \378\ See Kleimann Quantitative Study Report at 46-48.
---------------------------------------------------------------------------

    The Bureau cannot quantify the magnitude of the benefits of the 
three-business-day period for consumers to review the integrated 
Closing Disclosure. As discussed above, the Bureau is unaware of any 
data that can provide reliable market-wide estimates of the prevalence 
of changes between early TILA disclosures and RESPA GFEs and final loan 
terms and closing costs.

[[Page 80087]]

    ii. Costs to Consumers. If the final rule's requirement for 
creditors (or settlement agents, to the extent creditors divide 
responsibility with them) to provide the Closing Disclosure so that it 
is received by the consumer three business days prior to consummation 
in all circumstances were to result in closing delays, such delays 
could come at a cost to consumers. For example, for a consumer who is 
buying and selling a primary residence, a delay in the sales 
transaction may result in a delay in his or her purchase transaction as 
well, and thus might be a significant cost if it were out of the 
consumer's control. However, the Bureau believes the incidence of such 
delays would be extremely rare for a number of reasons.
    First, the final rule allows the consumer to waive the waiting 
period for bona fide personal financial emergencies--consumers 
currently have this waiver ability under Regulation Z with respect to 
certain TILA disclosures. Second, both settlement agents and creditors 
have incentives to complete closings as scheduled, and therefore the 
Bureau believes that they will adjust their business practices such 
that the Closing Disclosure can be provided in a timely manner and 
closing delays will be infrequent. Third, as described above the final 
rule permits creditors to provide estimates where actual terms are not 
available, and where changes happen subsequent to the issuance of the 
Closing Disclosure only require a further three-day waiting period if 
there are certain significant changes to the terms, such as a change in 
the APR by more than \1/8\ of 1 percent or \1/4\ of 1 percent (based on 
the type of loan), the loan product changes, or there is an addition of 
a prepayment penalty. Accordingly, the Bureau believes the rule as 
finalized is unlikely to lead to frequent closing delays.
    Many commenters suggested that consumers will be hurt by the 
closing delays arising from creditors not being able to provide the 
final Closing Disclosure in a timely fashion. The Bureau disagrees. Due 
to competition, creditors are unlikely to continue current processes as 
that would result in many transactions being delayed due to the three-
business-day provision. Thus, creditors are likely to implement 
necessary process adjustments to avoid consummation delay. Since these 
processes involve fixed costs, consumers are unlikely to experience any 
price increases.\379\ Moreover, the final rule's requirements for the 
three business day waiting period are less strict than those proposed, 
which should further alleviate any concerns about this issue.
    iii. Costs to Covered Persons. If the requirement does lead to 
delayed or canceled closings, this may impose costs on covered persons 
as well. Such closing delays could result in loss of revenue for 
transactions that fall through due to a delay. However, as noted above, 
in response to public comments received, the Bureau has revised the 
final rule regarding redisclosure of the Closing Disclosure and 
additional three-business-day waiting periods to mitigate the risk of 
frequent closing delays. The final rule may also create legal and 
reputational risks for creditors or settlement agents that are unable 
to close loans as planned. Accordingly, the Bureau does not believe 
there is a high risk of closing delays from the final rule.
    iv. Alternatives Considered. Under the proposal, most changes to 
the actual terms of the transaction after issuance of the Closing 
Disclosure three days before closing would have triggered an obligation 
to redisclose and to provide an additional three-business-day waiting 
period. The proposal would have permitted limited changes that would 
not have required an additional three-business-day period: Revisions 
due to consumer-seller negotiations; revisions that do not increase the 
cash to close amount by more than $100; and revisions that result in 
refunds due to the good faith requirements in proposed Sec.  
1026.19(e)(3). As discussed in the section-by-section analysis of Sec.  
1026.19(f)(2)(i) and (ii), to avoid the risk of costly closing delays, 
the final rule narrows the circumstances that would trigger additional 
three-business-day periods to changes that would affect consumers over 
the life of the loan: Where the loan's previously disclosed APR changes 
outside of the TILA tolerances, the loan product changes, or a 
prepayment penalty is added. Further, the Bureau received feedback 
indicating that the APR estimates included in the early TILA 
disclosures typically change by more than \1/8\ of 1 percent before 
consummation occurs (the tolerance for many loans), such that most 
creditors already provide corrected disclosures three business days 
before consummation as a standard business practice, rather than 
analyzing the accuracy of the disclosed APR. Therefore, the Bureau 
believes that any additional burden associated with requiring the 
disclosure three business days before consummation in all cases would 
be minimal.
b. Responsibility for Providing the Closing Disclosure
    TILA and RESPA require that different parties provide final 
disclosures to consumers. Specifically, TILA, as implemented by 
Regulation Z, requires the creditor to provide the TILA disclosures to 
consumers, while RESPA, as implemented by Regulation X, requires that 
the settlement agent provide the final statement of settlement costs to 
the consumer. However, section 1419 of the Dodd-Frank Act amended TILA 
to make creditors responsible for disclosing settlement cost 
information. See TILA section 128(a)(17). To reconcile these statutory 
differences and implement TILA section 128(a)(17), the Bureau proposed 
two alternative approaches for assigning responsibility for provision 
of the integrated Closing Disclosure to consumers: Sole responsibility 
for provision of the Closing Disclosure by the creditor, with the 
recognition that the settlement agent could be engaged by the creditor 
to provide the Closing Disclosure; or sole responsibility for provision 
of the Closing Disclosure by the creditor without recognition of any 
involvement of a settlement agent. In the final rule, the creditor is 
ultimately responsible for providing the consumer with an integrated 
Closing Disclosure three business days before consummation and the 
other delivery requirements in the final rule, but creditors may 
rearrange division of responsibility with settlement agents to provide 
the Closing Disclosure, so long as delivery is conducted by one of 
them.
    i. Costs to Covered Persons. The costs to creditors and to 
settlement agents under the final rule will depend on how creditors and 
settlement agents arrange to share responsibility for complying with 
the requirements relating to provision of the Closing Disclosure. The 
final rule's assignment of responsibility for provision of the Closing 
Disclosure to the creditor will likely require coordination on the part 
of creditors and settlement agents similar to what is done today.
    One additional one-time cost, however, may be re-working that 
coordination to adjust to the new forms and timing requirement. As 
discussed above, the Bureau believes creditors face a one-time cost of 
improving coordination with settlement agents, and that this task will 
be performed primarily by legal and management staff, at an industry 
wide cost of $2.8 million. Symmetrically, the Bureau estimates that 
settlement agents will spend 8 hours improving coordination with 
creditors, at a one-time cost of $1.2 million industry wide. Going 
forward, the Bureau believes that coordination costs will be similar to 
those currently experienced, so neither creditors nor

[[Page 80088]]

settlement agents should face increased ongoing costs.
    Some commenters suggested that some of the duties associated with 
settlement are going to shift from settlement agents to creditors, due 
to creditors having additional incentives under the final rule to 
ensure timely provision of the Closing Disclosure. Commenters did not 
describe or provide evidence as to the extent to which this would occur 
or the extent to which such a shift would harm consumers. The Bureau is 
unable to estimate whether or to what extent this will occur; however, 
the Bureau believes that creditors' incentive to internalize the 
process is mitigated to the extent that creditors and settlement agents 
already coordinate between themselves. One of the main arguments that 
commenters provided is that creditors would monopolize the settlement 
market, resulting in integrated creditors-settlement agents, and 
thereby reducing competition in the settlement agent market. This 
argument is not supported by the law and economics literature.\380\ 
While there are some situations where this argument might still 
apply,\381\ none of these cases seem to be relevant in this context. 
Additionally, the points and fees thresholds for qualified mortgages 
under the 2013 ATR Final rule may mitigate these effects, to the extent 
that they discourage the use of affiliated service providers. To the 
extent that any such shift occurs, there could be a reduction in the 
rule implementation costs discussed above. Any settlement agents caused 
to exit the market by such a shift would of course incur no 
implementation costs whatsoever. Creditors, in turn, likely would not 
absorb all of these foregone settlement agent costs, but rather only 
some additional training costs.
---------------------------------------------------------------------------

    \380\ See, e.g., Director, Aaron, and Edward H. Levi, ``Law and 
the Future: Trade regulation.'' Nw. UL Rev. 51 (1956) at 281. 
Suppose that the creditor is a monopolist in the mortgage market 
while the settlement agent market is perfectly competitive. Then the 
creditor charges a price (through a higher interest rate and fees) 
that also reflects the fact that consumers are not paying an extra 
markup in the settlement market. If the creditor now becomes a 
monopolist in the settlement market as well, that should not affect 
the overall amount that the consumer pays.
    \381\ Economides, Nicholas. ``Tying, Bundling, and Loyalty/
Requirement Rebates.'' In Research Handbook of the Economics of 
Antitrust Law. Ed. Einer Elhauge, Northhampton, MA: Edward Elgar, 
2012, at 121-143.
---------------------------------------------------------------------------

    ii. Alternatives Considered. In developing the final rule, the 
Bureau also considered an alternative under which the creditor would 
have been solely responsible for delivering the Closing Disclosure to 
the consumer, without acknowledging that a settlement agent can provide 
the Closing Disclosure on behalf of the creditor. This alternative 
would have likely placed increased costs on creditors, because, as 
discussed above, RESPA and current Regulation X require that the person 
conducting the settlement provide the RESPA-required disclosures to 
consumers. This provision could have resulted in ambiguity in the rule 
regarding the role of settlement agents in the transaction, and, as 
stated by small entity representatives on the Small Business Review 
Panel, increases in costs for small entities.
    The Bureau also considered an alternative under which the 
settlement agent would have sole responsibility for providing the 
Closing Disclosure to the consumer. However, the Bureau is not adopting 
this alternative based on its concern that settlement agents do not 
have access to much of the information regarding loan terms that must 
be included in the Closing Disclosure relative to creditors, which 
could lead to inaccuracies or delays of Closing Disclosures, as well as 
non-negligible coordination costs.
    In addition, in response to industry feedback, the Bureau 
considered an approach that would bifurcate the Closing Disclosure into 
TILA-required and RESPA-required disclosures, with the creditor being 
responsible for the former, and the settlement agent being responsible 
for the latter. Under this alternative, the settlement agent would 
incur additional logistical burden, relative to the pre-statutory 
baseline. Creditors and settlement agents may have incurred one-time 
legal fees under this alternative, since those entities may have needed 
to contractually stipulate their respective duties or amend existing 
contractual arrangements in light of the rule. Settlement agents may 
also have needed to hire additional staff to handle the increased 
workload associated with collecting the relevant information and 
coordinating with creditors and third party service providers and 
preparing the disclosures. The Bureau is also concerned that such an 
approach would be confusing for consumers, would be impracticable, 
would result in additional regulatory burden because of the amount of 
overlap between TILA and RESPA disclosures, and would be inconsistent 
with the Dodd-Frank Act requirement to integrate the disclosures. In 
addition, the Bureau believes that the final rule permits creditors and 
settlement agents to identify the most efficient methods of 
communicating and dividing responsibility for the disclosure, because 
it does not assign in the regulation responsibility for particular 
tasks or portions of the disclosure to particular parties.
5. Implementation of New Disclosures Mandated by the Dodd-Frank Act
    As discussed more fully in the section-by-section analysis above, 
title XIV of the Dodd-Frank Act added new disclosure requirements to 
TILA and RESPA for mortgage transactions, including several disclosures 
to consumers who are applying for a mortgage loan and two post-
consummation disclosures concerning cancellation of escrow accounts for 
certain mortgage transactions and the partial payment policy disclosure 
for certain mortgages. The Bureau has structured the final rule to 
require inclusion of the application-related disclosures into the Loan 
Estimate and Closing Disclosure and required implementation of the 
post-consummation disclosures at the same time as the other changes. 
The Bureau believes that this approach will benefit consumers by 
providing the new information while minimizing paperwork and 
information overload. The Bureau believes that the one-time 
implementation costs will be negligible since creditors will be 
updating software and compliance systems to produce the new disclosures 
at the same time that they are implementing the integrated Loan 
Estimate and Closing Disclosure. Covered persons may incur some 
insignificant additional recurring costs associated with providing the 
post-consummation disclosures on an ongoing basis.
6. Major Provisions Considered but Not Implemented
a. Electronic, Machine Readable Record Retention
    The proposed rule would have required the retention of records of 
compliance with the disclosure requirements for the Loan Estimate and 
Closing Disclosure in an electronic, machine readable format. After 
careful consideration, the Bureau has decided not to impose new machine 
readable data retention requirements for the Loan Estimate and the 
Closing Disclosure, or to require creditors to maintain other evidence 
of compliance in an electronic, machine readable format.
    The Bureau believes that requiring the collection of electronic, 
machine readable records may have improved the ability of the Bureau 
and other regulators to monitor compliance with applicable requirements 
and to evaluate whether the rules adequately protect consumers against 
impermissible changes in settlement costs and loan

[[Page 80089]]

terms. The Bureau believes that this improved ability may have 
benefitted consumers through improved compliance.
    The Bureau does not believe the proposed recordkeeping requirements 
would have led to costs to consumers, beyond any costs that are passed 
through to consumers by creditors or loan originators. The Bureau 
believes covered persons, after incurring the one-time implementation 
costs of such a new requirement, may have also benefitted because of 
efficiency gains from facilitating data transmission through the 
mortgage loan origination process due to standardization. However, the 
Bureau determined, for reasons discussed earlier not to finalize the 
requirement in this final rule.
b. Expanded Definition of Finance Charge
    As discussed more fully in the section-by-section analysis of Sec.  
1026.4, TILA and current Regulation Z exclude many types of charges 
from the finance charge, particularly for mortgage transactions. 
Concerns have long been raised that these exclusions undermine the 
potential usefulness of the finance charge and corresponding APR as a 
tool consumers can use to compare the total cost of one loan to 
another. In addition, these exclusions create compliance burden and 
litigation risk for creditors and may encourage creditors to shift the 
cost of credit to excluded fees, a practice that is inefficient and may 
lead to greater consumer confusion.
    In the proposed rule, the Bureau proposed to revise the definition 
of ``finance charge'' by eliminating many of the current exclusion and 
thus to potentially make it more useful as a shopping tool. However, 
while the Bureau acknowledges that there are benefits to such an 
expanded finance charge definition for disclosure purposes, the Bureau 
has decided not to proceed with modifying the finance charge. If the 
Bureau had included more elements in the finance charge, more loans may 
have surpassed APR thresholds for HPMLs and HOEPA loans, which may have 
required creditors to comply with additional regulations, such as the 
escrow requirement for higher-priced mortgage loans. Mechanically, a 
change in the definition of APR would potentially result in situations 
where loan A has a higher APR than loan B under the current definition, 
but has a lower APR than loan B under the new definition. Consequently, 
even if the thresholds for HPML and HOEPA loans were reset, the same 
set of loans likely would not be covered. Therefore, it is a 
substantial task to adjust the finance charge and preserve the intent 
of APR thresholds in other regulations, which would impose considerable 
compliance burden on creditors. The Bureau also recognizes that the 
proposed revised definition of ``finance charge'' could create upfront 
implementation costs for creditors required to update systems and train 
staff on the new calculations. For these reasons, the Bureau believes 
it is appropriate to postpone consideration of any changes to the 
finance charge definition until the Bureau's other mortgage-related 
Dodd-Frank Act rulemakings are fully implemented and the Bureau has the 
opportunity to evaluate the potential benefits and implementation 
burdens.

F. Potential Specific Impacts of the Final Rule

1. Depository Institutions and Credit Unions With $10 Billion or Less 
in Total Assets, as Described in Section 1026
    The Bureau believes that the impacts of the rule on depository 
institutions and credit unions with $10 billion or less in total assets 
will be similar to impacts on creditors as a whole, mutatis 
mutandis.\382\
---------------------------------------------------------------------------

    \382\ The only potential difference is the aforementioned 
theoretical possibility of creditors exiting the market. To the 
extent that this occurs, and the Bureau believes that it will not, 
it is more likely to occur for creditors with $10 billion or less in 
total assets.
---------------------------------------------------------------------------

    The Bureau analyzed the effect of the final rule on depository 
institutions with $10 billion or less in assets, using methods and 
assumptions analogous to those used for creditors of all sizes. For 
depository institutions with $10 billion or less in assets, the one-
time costs of complying with the rule are $170 million, amortized over 
5 years, which is approximately $73 per transaction. This can be 
partitioned into $11.3 million per year for updating software for 
creditors who perform the process in-house, $152.8 million per year for 
implementation (including learning about the rule, gap analysis, 
software testing, trouble shooting, and ensuring smooth system 
functioning across systems), $3.4 million per year for training, and 
$2.1 million per year for changing processes to ensure smooth delivery 
of all of the necessary information.
2. Impact of the Final Rule's Provisions on Consumers in Rural Areas
    Consumers in rural areas may experience benefits and costs from the 
final rule that are different in certain respects to those experienced 
by consumers in general. The extent to which rural consumers shop for 
mortgages and the ways in which they shop may differ from the extent to 
which other consumers shop and the ways in which they shop, which may 
affect the benefits of the revised Loan Estimate. The Bureau is unaware 
of information on these differences, however.\383\ To the extent that 
the impacts of the final rule on creditors differ by type of creditor, 
this may affect the costs and benefits of the final rule on consumers 
in rural areas.
---------------------------------------------------------------------------

    \383\ While the sample size was not sufficient to draw any 
definitive conclusions concerning any differences between rural and 
other consumers, the Quantitative Study did recruit study 
participants from rural areas. See Kleimann Quantitative Study 
Report at 70.
---------------------------------------------------------------------------

3. Impact of the Final Rule on Consumer Access to Credit
    The Bureau does not believe that the final rule will have a 
substantial effect on consumers' access to credit because the final 
rule does not directly affect the provision of particular types of 
mortgage products. While changes to the content and timing of 
disclosures and associated tolerance rules may incent creditors to 
offer one product type over another, the Bureau does not believe that 
the final rule will cause creditors to reduce their extension of 
credit.
    The Bureau believes that access to credit may increase as a result 
of this rule. As discussed above, the Bureau believes that this rule 
may help consumers choose the loan that better fits their needs and may 
facilitate shopping, which would in turn decrease prices in the market. 
All of these factors might contribute to an increase in access to 
credit.

VIII. Final Regulatory Flexibility Act Analysis

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct an initial regulatory flexibility analysis (IRFA) and a 
final regulatory flexibility analysis (FRFA) of any rule subject to 
notice-and-comment rulemaking requirements, unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities.\384\
---------------------------------------------------------------------------

    \384\ For purposes of assessing the impacts of the final rule on 
small entities, ``small entity'' is defined in the RFA to include 
small businesses, small not-for-profit organizations, and small 
government jurisdictions. 5 U.S.C. 601(6). A ``small business'' is 
determined by application of Small Business Administration 
regulations and reference to the North American Industry 
Classification System (NAICS) classifications and size standards. 5 
U.S.C. 601(3). A ``small organization'' is any ``not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.'' 5 U.S.C. 601(4). A ``small governmental 
jurisdiction'' is the government of a city, county, town, township, 
village, school district, or special district with a population of 
less than 50,000. 5 U.S.C. 601(5).

---------------------------------------------------------------------------

[[Page 80090]]

    The Bureau also is subject to certain additional procedures under 
the RFA involving the convening of panel to consult with small business 
representatives prior to proposing a rule for which an IFRA is 
required.\385\
---------------------------------------------------------------------------

    \385\ 5 U.S.C. 609.
---------------------------------------------------------------------------

    As discussed further below, for banks and other depository 
institutions, an entity is considered ``small'' if it has $500 million 
or less in assets and, for other financial businesses, an entity is 
considered ``small'' if it has average annual receipts (i.e., annual 
revenues) that do not exceed $35.5 million or $7 million, depending on 
the function of the business.\386\ The Bureau did not certify that the 
rule would not have a significant economic impact on a substantial 
number of small entities. Thus, the Bureau convened a Small Business 
Review Panel to obtain advice and recommendations of representatives of 
the regulated small entities. The TILA-RESPA Proposal preamble included 
detailed information on the Small Business Review Panel.\387\ The 
Panel's advice and recommendations are found in the Small Business 
Review Panel Final Report; \388\ several of these recommendations were 
incorporated into the proposed rule. The TILA-RESPA Proposal preamble 
also included a discussion of each of the panel's recommendations in 
the section-by-section analysis of the proposed rule.
---------------------------------------------------------------------------

    \386\ See U.S. Small Bus. Admin., Table of Small Business Size 
Standards Matched to North American Industry Classification System 
Codes (July 22, 2013) available at http://www.sba.gov/content/table-small-business-size-standards. (``SBA Size Standards'').
    \387\ 77 FR 51116, 51128-51129 (Aug. 23, 2012).
    \388\ See Final Report of the Small Business Review Panel on 
CFPB's Proposals Under Consideration for Integration of TILA and 
RESPA Mortgage Disclosure Requirements (Apr. 23, 2012), at 17, 
available at http://files.consumerfinance.gov/f/201207_cfpb_report_tila-respa-sbrefa-feedback.pdf. (``Small Business Review 
Panel Report'').
---------------------------------------------------------------------------

    The TILA-RESPA Proposal contained an IRFA,\389\ pursuant to section 
603 of the RFA. In this IRFA the Bureau solicited comment on any costs, 
recordkeeping requirements, compliance requirements, or changes in 
operating procedures arising from the application of the proposed rule 
to small businesses, comment regarding any Federal rules that would 
duplicate, overlap, or conflict with the proposed rule, and comment on 
alternative means of compliance for small entities. Comments addressing 
individual disclosure elements of the Loan Estimate and Closing 
Disclosure are addressed in the section-by-section analysis above. 
Comments addressing the impact on the cost of credit are discussed 
below.
---------------------------------------------------------------------------

    \389\ 76 FR 27479-27480.
---------------------------------------------------------------------------

    Based on the comments received, and for the reasons stated below, 
the Bureau believes the final rule will have a significant economic 
impact on a substantial number of small entities. Accordingly, the 
Bureau has prepared the following final regulatory flexibility analysis 
pursuant to section 604 of the RFA.

1. A Statement of the Need for, and Objectives of, the Rule

    For more than 30 years, TILA and RESPA have required creditors and 
settlement agents to give to consumers who take out a mortgage loan 
different but overlapping disclosure forms regarding the loan's terms 
and costs. This duplication has long been recognized as inefficient and 
confusing for consumers and industry. The following two paragraphs 
briefly summarize the statutory differences, which are described in 
more detail in part I and part II, above.
    TILA/Regulation Z: In connection with any closed-end credit 
transaction secured by a consumer's dwelling and subject to RESPA, TILA 
and Regulation Z require creditors to provide good faith estimates of 
loan terms (such as the APR) within three business days after receiving 
the consumer's mortgage application (the early TILA disclosure). If the 
APR on the early TILA disclosure becomes inaccurate, TILA requires the 
creditor to provide a corrected disclosure at least three business days 
before consummation (the corrected TILA disclosure). TILA requires that 
the disclosures be provided in final form at the time of consummation 
(the final TILA disclosure).
    RESPA/Regulation X: In connection with any federally related 
mortgage loan, RESPA and Regulation X require that creditors provide a 
good faith estimate of the amount or range of charges for certain 
settlement services the borrower is likely to incur in connection with 
the settlement (such as fees for an appraisal or a title search) and 
related loan information within three business days after receiving the 
consumer's application (the RESPA GFE). RESPA also requires that ``the 
person conducting the settlement'' (typically, the settlement or 
closing agent) provide the consumer with a completed, itemized 
statement of settlement charges at or before settlement (the RESPA 
settlement statement).
    Furthermore, the recent mortgage crisis highlighted deficiencies in 
consumer understanding of mortgage transactions, which may be 
attributed in part to shortcomings in mortgage disclosures. Part II.A 
of the final rule discusses in greater detail the background of the 
mortgage market. Prior to the creation of the Bureau, other government 
agencies took steps to address these shortcomings. Specifically, HUD, 
which was previously responsible for implementing RESPA, finalized 
rules in 2008 that substantially revised the RESPA mortgage disclosures 
(HUD's 2008 RESPA Final Rule). In addition, the Board, which was 
previously responsible for TILA, proposed rules in 2009 that would have 
substantially revised the TILA mortgage disclosures (the Board's 2009 
Closed-End Proposal). However, neither HUD nor the Board had the 
authority to combine the TILA and RESPA disclosures.
    As noted above, RESPA and TILA historically have been implemented 
by regulations of HUD and the Board, respectively, and the Dodd-Frank 
Act consolidated this rulemaking authority in the Bureau. In addition, 
the Dodd-Frank Act amended both statutes to mandate specifically that 
the Bureau propose rules and forms combining the TILA and RESPA 
disclosures for mortgage loans subject to either law or both laws by 
July 21, 2012. Dodd-Frank Act sections 1032(f), 1098, 1100A. On July 9, 
2012, the Bureau issued a notice of the proposed rule, which was 
published in the Federal Register on August 23, 2012 (77 FR 51116).
    The Dodd-Frank Act establishes two goals for the consolidation: to 
improve consumer understanding of mortgage loan transactions, and to 
facilitate industry compliance with TILA and RESPA. The Dodd-Frank Act 
also made several amendments to the disclosure requirements in TILA and 
RESPA. In particular, the Dodd-Frank Act amended TILA to require the 
creditor to disclose in the early and final TILA disclosures the 
aggregate amount of settlement charges provided in connection with the 
loan, which was previously disclosed only by the settlement agent in 
the RESPA settlement statement.\390\ The final rule, therefore, both 
follows on the prior efforts of HUD and the Board to address 
shortcomings in the mortgage market with regard to mortgage disclosures 
and effectuates Congress's specific mandate to the Bureau to integrate 
the mortgage disclosures under TILA and RESPA. For a further 
description of the reasons why agency action was considered necessary, 
see the

[[Page 80091]]

background discussion for the final rule in part II, above.
---------------------------------------------------------------------------

    \390\ Section 1419 of the Dodd-Frank Act, adding section 
128(a)(17) to TILA.
---------------------------------------------------------------------------

    As described above, the final rule effectuates Congress's mandate 
to integrate the mortgage disclosures required under TILA and RESPA. In 
particular, sections 1098 and 1100A of the Dodd-Frank Act state that 
the purposes of the integrated disclosures are to facilitate compliance 
with TILA and RESPA and ``to aid the borrower or lessee in 
understanding the transaction by utilizing readily understandable 
language to simplify the technical nature of the disclosures.'' Dodd-
Frank Act sections 1098(2)(A), 1100A(5). The integrated disclosures 
also effectuate the underlying statutory purposes of RESPA and TILA. 
One of the statutory purposes of RESPA is ``more effective advance 
disclosure to home buyers and sellers of settlement costs.'' 12 U.S.C. 
2601(b)(1). And the statutory purpose of TILA is to ``to assure a 
meaningful disclosure of credit terms so that the consumer will be able 
to compare more readily the various credit terms available to him and 
avoid the uninformed use of credit.'' 15 U.S.C. 1601(a).
    Furthermore, this rulemaking promotes consumer comprehension of 
financial disclosures. Section 1021(b) of the Dodd-Frank Act authorizes 
the Bureau to exercise its authorities to ensure that, with respect to 
consumer financial products and services, ``consumers are provided with 
timely and understandable information to make responsible decisions 
about financial transactions.'' 12 U.S.C. 5511(b)(1). Section 1032(a) 
of the Dodd-Frank Act provides the Bureau with the authority to 
``prescribe rules to ensure that the features of any consumer financial 
product or service, both initially and over the term of the product or 
service, are fully, accurately, and effectively disclosed to consumers 
in a manner that permits consumers to understand the costs, benefits, 
and risks associated with the product or service, in light of the facts 
and circumstances.'' 12 U.S.C. 5532(a).
    The final rule also is intended to provide other benefits for 
consumers. First, the new disclosure forms are simpler and more 
comprehensible, and their design has been refined to incorporate 
extensive consumer and industry feedback gathered through online tools 
and one-on-one testing across the country. See part III, above. By 
conveying information on key loan terms clearly, the redesigned 
disclosure forms may improve the ability of consumers to shop for and 
compare mortgage terms across loan offers and improve their 
understanding of mortgage loan transactions. Second, the final rule 
seeks to improve borrowers' ability to shop by more clearly delineating 
between estimates regulated by TILA and RESPA and non-binding 
preapplication estimates. Third, the final rule may reduce the 
magnitude and frequency of changes in costs between application and 
consummation and may decrease the likelihood that consumers will face 
unexpected changes in costs due to ``bait and switch'' tactics.\391\
---------------------------------------------------------------------------

    \391\ This discussion of the final rule's benefits to consumers 
is intended to be illustrative, not exhaustive. Additional consumer 
benefits that may result from the final rule are discussed in other 
sections of the final rule.
---------------------------------------------------------------------------

    Lastly, the Bureau is seeking to reconcile differences in the 
scope, terminology, and requirements of TILA, RESPA, and their current 
implementing regulations. As discussed above, the Dodd-Frank Act did 
not reconcile a number of statutory differences between TILA and RESPA 
(e.g., the different requirements on the timing of disclosures and 
which party is responsible for providing the disclosures), which the 
Bureau needs to do in order to satisfy the mandate to integrate the 
disclosures. Moreover, the final rule clarifies and streamlines aspects 
of the current rules that have been identified as confusing by 
creditors, mortgage brokers, mortgage companies, and settlement agents, 
as well as by consumers who receive the disclosures. The Bureau 
believes these clarifications will resolve ambiguities, eliminate 
redundant or unnecessary disclosures, and more effectively disclose 
mortgage loan terms and costs to consumers. The legal basis for the 
final rule is discussed in detail in the legal authority analysis in 
part IV and in the section-by-section analysis in part V, above.

2. Summary of Significant Issues Raised by Comments in Response to the 
Initial Regulatory Flexibility Analysis

    In accordance with section 603(a) of the RFA, the Bureau prepared 
an IRFA. In the IRFA, the Bureau estimated the possible compliance 
costs for small entities with respect to each major component of the 
rule against a pre-statute baseline. The Bureau requested comment on 
the IRFA.
    Various commenters stated that without further guidance they would 
not be able to implement the proposed electronic, machine readable 
record retention requirement. In light of these comments, the Bureau 
understands that more prescriptive specifications of electronic, 
machine readable requirements, such as a well-defined data dictionary 
and format, would reduce the burden of compliance. As discussed further 
in the section-by-section analysis of Sec.  1026.25 above, the Bureau 
has decided not to finalize the electronic, machine readable record 
retention requirement at this time, in part because creating these 
elements would require additional outreach beyond the scope of the 
proposed rulemaking.
    With respect to the proposal to modify the finance charge, 
commenters, including individual creditors and trade associations, 
stated that expanding the finance charge would affect criteria based on 
the APR, such as which loans pass the higher-priced mortgage loan or 
HOEPA thresholds, as well as various State-level criteria. As discussed 
in the Dodd-Frank Act section 1022(b)(2) analysis above, it is not 
straightforward to recalibrate these thresholds in order to cover the 
same loans. Other commenters raised the possibility of retaining the 
current finance charge definition for purposes of threshold computation 
but disclosing the APR calculated with the more expansive finance 
charge. Because of the challenges associated with changing the finance 
charge, and its effects on the APR, without the data resources to 
estimate the potential impact of the change on the different 
thresholds, the Bureau has decided not to finalize the more inclusive 
finance charge at this time.
    Many of the comments received in response to the IRFA focused on 
implementation and compliance costs. For example, several credit unions 
commented that they anticipated per-firm implementation costs of 
approximately $40,000 in addition to training costs. As discussed 
below, the Bureau estimates non-training costs of implementation of the 
same order of magnitude for small entities. In light of comments such 
as this and further analysis, the Bureau has increased its estimate of 
implementation and compliance costs. A title company commenter stated 
that a software vendor that it had consulted with would incur 
implementation costs of $200,000. While the Bureau cannot assess the 
accuracy of this claim because the commenter did not provide support 
for it that could be corroborated, the Bureau believes that costs 
incurred by software vendors will likely not be passed through to 
client creditors. As discussed in part VI above, in response to various 
comments about implementation time required, the Bureau has decided to 
set an implementation period that will last until August 1, 2015. One 
independent mortgage loan originator commented that it does not have 
the back office

[[Page 80092]]

functions the Bureau uses in its impact analyses, and therefore would 
incur substantial costs to implement the final rule. These costs are 
likely to be mitigated by information that is passed on by vendors, as 
well as small entity compliance guides and other guidance that the 
Bureau provides throughout the implementation period.
    The Bureau also received several comments about who provides the 
Closing Disclosure from trade associations, settlement companies, and 
creditors. The concerns raised include the possibility of dual closings 
(separate closings of the real estate and mortgage transactions), the 
threat of industry consolidation, the disadvantaging of affiliated 
title companies, and a move to the use of larger title companies. Since 
consumers can shop for title services, who provides the Closing 
Disclosure is unlikely to affect the price of title services, or the 
size of title companies used. Furthermore, the comments did not provide 
specific evidence that affiliated title companies are likely to be 
disadvantaged by the final rule. Since the final rule does not preclude 
creditors from coordinating with settlement agents, and mortgage 
transactions and real estate transactions are often linked since the 
latter provides the collateral for the former, the frequency of dual 
closings is unlikely to change. Please consult the section-by-section 
analysis above for additional discussion of these comments.

3. Response to the Office of Advocacy of the Small Business 
Administration Comment

    The Office of Advocacy at the Small Business Administration (SBA) 
provided two formal comment letters to the Bureau in response to the 
proposed rule on the integration of the TILA and RESPA disclosures. 
Among other things, these letters expressed concerns about the 
electronic, machine readable recordkeeping requirements, the proposed 
changes to Sec.  1026.4 that would change the calculation of the 
finance charge, the integration of the initial and final closing 
disclosures, the provision of the Closing Disclosure, and the 
definition of application.
    Since the Bureau is neither finalizing the proposed electronic, 
machine readable record keeping requirements nor finalizing the 
proposed change to an all-in finance charge, SBA's concerns about these 
issues are no longer directly relevant to the final rule. For example, 
because these changes will not be made, small businesses covered by the 
final rule will not have to revise their computer systems in light of 
these changes.
    In its comment about the cost of the integration of the initial and 
final closing disclosures, one point that SBA raised was that not all 
of the costs associated with the final rule would be absorbed in annual 
updates. While the Bureau believes that the cost of vendor updates will 
not be passed on to creditors, the Bureau acknowledges, as it did in 
the proposal, that there will be one-time implementation costs. Based 
on comments received and further analysis, the Bureau has revised 
upwards its estimate of these one-time costs of implementation. SBA 
also stated that there would be increased cost of compliance reviews. 
The Bureau does not believe that there will be increased cost of 
compliance reviews as creditors are already examined for compliance 
with the RESPA GFE and the RESPA settlement statement.
    SBA also identified possible issues with the three-business-day 
waiting requirement for the Closing Disclosure because some costs may 
change shortly before closing. The Bureau has considered the tradeoff 
between the amount of time a prospective borrower has to compare the 
Loan Estimate and the Closing Disclosure and the burden on industry of 
providing the disclosure one or more days prior to consummation, and 
believes that extending the waiting period is in the best interest of 
consumers. Some of SBA's roundtable participants stated that the 
requirement might conflict with State law. However, Federal law takes 
precedence over State law in this case.
    SBA also raised issue with removing the seventh data element from 
the definition of application because it might create uncertainty about 
when the provision of the Loan Estimate is required as well as require 
the Loan Estimate to be provided earlier in the process. SBA asserted 
that loan estimates may also be less accurate, and therefore be more 
likely to have to be redisclosed. To the extent that creditors may 
request other information prior to, or simultaneously with, their 
request of the other six data elements, the Bureau believes that this 
will mitigate the timing and completeness effects of removing the 
seventh element. While it is true that eliminating the seventh element 
might render estimates of costs provided by creditors less accurate, 
this must be weighed against the consumer's certainty about the timing 
of the Loan Estimate, as well as being simultaneously and well informed 
about all of his or her potential options. In relation to the 
components of an application, a trade association representing 
community banks suggested that ``property address'' should be an 
optional element. It is important to note that the Loan Estimate is not 
analogous to a preapproval letter, which is based on borrower credit 
quality alone, and that underwriting a loan property address, which is 
a necessary element in estimating value, is fundamental.
    SBA reiterated a claim made by several SERs about permissible 
changes to settlement costs and redisclosure of the initial disclosure: 
there may be unintended consequences of reducing certain charges from 
the 10 percent tolerance category to the zero percent category. This, 
they claimed, would lead to a reduction in competition. The Bureau 
believes that to the extent there are long run effects, it is not 
obvious that the consequence of the new tolerances is firms exiting the 
market. For example, firms might be able to absorb the costs of 
overestimates, or the new tolerances might lead to more transparent and 
consistent pricing of services by both affiliates and independent 
service providers. Even if there are exits from the market by some 
firms, the Bureau believes that the markets will remain competitive and 
that there also may be new entrants (but this is likely to result from 
regular turnover).
    SBA questioned the appropriateness of applying the rule under which 
Loan Estimates not delivered in person are considered to be received 
three days after they are sent in the context of instantaneous 
delivery, such as through secure electronic transmission. The Bureau is 
not persuaded by the argument that the Bureau should adjust the final 
rule to reflect that disclosures provided by electronic delivery should 
be subject to a different standard. The Bureau believes that it would 
require more information regarding the many different forms of delivery 
methods available to creditors, including technical information 
regarding different forms of electronic delivery, before it issues a 
rule applying such different standards. Similarly, the SBA questioned 
the proposal to treat Saturday as a business day for purposes of the 
three-business-day rule. As discussed above, the Bureau has decided not 
to adopt this aspect of the proposal.

4. A Description of and an Estimate of the Number of Small Entities to 
Which the Rule Will Apply

    As discussed in the Small Business Review Panel Report, for 
purposes of assessing the impacts of the final rule on small entities, 
``small entities'' is defined in the RFA to include small businesses, 
small nonprofit

[[Page 80093]]

organizations, and small governmental jurisdictions. 5 U.S.C. 601(6). A 
``small business'' is determined by application of SBA regulations and 
reference to the North American Industry Classification System (NAICS) 
classifications and size standards.\392\ 5 U.S.C. 601(3). Under the 
2012 revision of such standards, banks and other depository 
institutions are considered ``small'' if they have $500 million or less 
in assets, and for other financial businesses, the threshold is average 
annual receipts (i.e., annual revenues) that do not exceed $35.5 
million or $7 million, depending on the function of the business.\393\
---------------------------------------------------------------------------

    \392\ The current SBA size standards are found on SBA's Web site 
at http://www.sba.gov/content/table-small-business-size-standards.
    \393\ See id.
---------------------------------------------------------------------------

    During the Small Business Review Panel process, the Bureau 
identified six categories of small entities that may be subject to the 
final rule for purposes of the RFA. These are the categories of 
entities that may be required to provide, and maintain related records 
on, the integrated disclosures, either because they may make 
residential mortgage loans or because they may be responsible for 
completing or providing required disclosures. The categories and the 
current SBA small entity thresholds for those categories are: (1) 
Commercial banks \394\ with up to $500,000,000 in assets, (2) credit 
unions with up to $500,000,000 in assets, (3) mortgage brokers with up 
to $7,000,000 in annual revenue, (4) mortgage companies (non-bank 
creditors) with up to $35,500,000 in annual revenue, (5) settlement 
(closing) agents with up to $10,000,000 in annual revenue, and (6) 
nonprofit organizations that are not for profit, independently owned 
and operated, and not dominant in the field.\395\
---------------------------------------------------------------------------

    \394\ For purposes of the Bureau's Small Business Review Panel 
Outline circulated in advance of the Panel Outreach Meeting, the 
categories of commercial banks and savings institutions were 
combined under the label ``commercial banks.'' The list of SERs 
identified in Chapter 7 of the Small Business Review Panel Report 
includes one representative of a savings institution.
    \395\ Comprehensive information about non-profit activity in the 
mortgage market is not available, so nonprofits are not included as 
a separate category in the table that describes the estimated number 
of affected entities and small entities by NAICS code. To the extent 
that non-profits fall into any of the NAICS codes included in the 
table, they are included.
---------------------------------------------------------------------------

    The following table provides the Bureau's estimate of the number 
and types of entities that may be affected by the final rule: \396\
---------------------------------------------------------------------------

    \396\ In the Small Business Review Panel Report, chapter 9.1, a 
preliminary estimate of affected entities and small entities was 
included in a similar format (a chart with clarifying notes). See 
Small Business Review Panel Report at 26-27.

---------------------------------------------------------------------------

[[Page 80094]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.000


[[Page 80095]]



5. Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    The final rule imposes new disclosure requirements on covered 
persons, and therefore recordkeeping requirements are modified 
appropriately (as discussed below). Even so, this does not result in a 
net increase in recordkeeping requirements. The final rule does, 
however, impose new compliance requirements on certain small entities. 
The requirements to integrate the TILA and RESPA disclosures and the 
imposition of new disclosure requirements under the Dodd-Frank Act, 
Title XIV, appear specifically in the Dodd-Frank Act. Thus, to a large 
extent, the impacts discussed below are impacts of the statute, not of 
the regulation per se, that is, the Bureau discusses impacts against a 
pre-statute baseline.
a. Reporting Requirements
    The final rule does not impose new reporting requirements.
b. Recordkeeping Requirements
    The current record retention period is two years under Regulation 
Z, which supports private actions and regulatory enforcement actions. 
However, the CFPB has decided to require creditors to retain evidence 
of compliance with the integrated disclosure provisions of Regulation Z 
for three years after consummation of the transaction, except that 
creditors must retain the Closing Disclosure and all documents related 
to the Closing Disclosure for five years after consummation, consistent 
with the requirements of existing Regulation X. The final rule also 
requires that if a creditor sells, transfers, or otherwise disposes of 
its interest in a mortgage and does not service the mortgage, the 
creditor shall provide a copy of the Closing Disclosure to the owner or 
servicer of the mortgage as a part of the transfer of the loan file. 
Such owner or servicer shall retain such disclosures for the remainder 
of the five-year period. The CFPB recognizes that this requirement is 
different from the current requirements under Regulation X, which does 
not require a creditor to maintain these documents if the creditor 
disposes of its interest in the mortgage loan and does not service the 
mortgage loan. In addition, the final rule requires creditors and 
mortgage brokers to retain documentation sufficient to show their 
supervisory agencies that one of the exceptions applies whenever a cost 
for a service provided by a company that is owned by or affiliated with 
the creditor proves to be higher than estimated in the Loan Estimate in 
excess of the tolerances under Sec.  1026.19(e)(3) and a revised Loan 
Estimate is provided, similar to the current document retention 
requirements under Regulation X for when the RESPA GFE is reissued. 
These retention requirements may result in additional cost to 
respondents that are creditors and mortgage brokers. However, the 
Bureau believes that any burden associated with the final rule's record 
keeping requirement will be minimal or de minimis, since only 
information sufficient to reconstruct the required record is required 
to be retained.
    The final rule does not finalize the electronic, machine readable 
recordkeeping requirements proposed in the TILA-RESPA Proposal.
c. Compliance Requirements
    The final rule contains specific provisions with regulatory or 
commentary language. The analysis below considers the benefits, costs, 
and impacts of the following major provisions on small entities:
    1. The integration of the initial and closing disclosures (the Loan 
Estimate and Closing Disclosure, respectively),
    2. The definition of ``application'',
    3. Permissible changes to settlement costs and redisclosure of 
initial disclosures,
    4. Provision of the Closing Disclosure, and
    5. Implementation of new disclosures mandated by the Dodd-Frank 
Act.
Baseline for Analysis
    The analysis examines the benefits, costs, and impacts of the major 
provisions of the final rule against a pre-statutory baseline. This 
means that to the extent there are benefits, costs, or other relevant 
impacts emanating from the relevant provisions of the Dodd-Frank Act, 
the Bureau combines those with the benefits, costs, and impacts of the 
regulation itself in conducting this analysis. The Bureau has 
discretion in future rulemakings to choose the most appropriate 
baseline for that particular rulemaking.

1. Integrated Initial and Closing Disclosures

    The final rule requires that the Loan Estimate be provided to 
consumers within three business days after receipt of the consumer's 
application, to replace the early TILA disclosure and RESPA GFE, and 
that the Closing Disclosure be provided to consumers at least three 
business days prior to consummation, to replace the final TILA 
disclosure and RESPA settlement statement. As discussed above, TILA 
authorizes the Bureau to publish model forms for the TILA disclosures, 
while RESPA authorizes the Bureau to require the use of standard forms 
(e.g., the current RESPA GFE and RESPA settlement statement forms). 
Accordingly, the Bureau is requiring the use of standard Loan Estimate 
and Closing Disclosure forms for mortgage loan transactions that are 
subject to RESPA. For transactions that are subject only to TILA, 
however, the forms are not being required. Rather, consistent with the 
provisions of that statute, the forms are model forms. The final rule 
also incorporates prior informal guidance regarding compliance with 
HUD's 2008 Final RESPA Rule into Regulation Z and official commentary, 
as necessary and appropriate.
Benefits to Small Entities
    The integration of the early TILA disclosure and the RESPA GFE, and 
the final TILA disclosure and the RESPA settlement statement, may 
benefit small entities, including small creditors, mortgage brokers, 
and settlement agents that provide the disclosures. It will reduce the 
number of disclosures that covered persons need to prepare and provide 
and the number of disclosure-provision systems and processes that 
covered persons need to maintain. In addition, the three-page Loan 
Estimate will replace a three-page RESPA GFE and two-page early TILA 
disclosure, as well as address other new disclosure requirements in the 
Dodd-Frank Act.
    Most small entities that participated in the Small Business Review 
Panel process stated that the integrated forms would make it easier to 
explain transactions to consumers, although one letter from several 
small entity settlement agents indicated that the new forms could 
actually lead to more questions during a closing. Information submitted 
by several settlement agents indicates that requiring the use of 
standard forms and clearer regulatory guidance could save as much as 30 
minutes per closing by standardizing practices across creditors and 
reducing confusion. Based on information from the Bureau of Labor 
Statistics, the typical hourly wage of a settlement agent employee is 
$34 and the typical hourly wage of a loan officer is $48, giving a 
dollar savings in labor cost from the simplified closing forms of $17 
to $24 per closing. Most of these savings will likely be passed on to 
consumers.
    The integrated disclosures also permit creditors to consolidate 
certain numerical calculations. For example, Regulations Z and X 
currently require two different calculations for the disclosure of 
monthly payment information on the early TILA

[[Page 80096]]

disclosure and the RESPA GFE. The integrated Loan Estimate consolidates 
these calculations into one monthly payment disclosure, which may 
facilitate compliance and ease burden on small entities. Other examples 
of overlapping but potentially different numerical disclosures required 
under Regulations Z and X include information about balloon payments 
and prepayment penalties.
Costs to Small Entities
    The integrated Loan Estimate and the Closing Disclosure will result 
in certain compliance costs to small entities. The Bureau believes many 
of the costs of complying with these requirements would be common 
across the two disclosures, and therefore discusses them together here. 
In addition, the Bureau believes these costs would consist primarily of 
one-time costs to revise software and compliance systems, as other 
costs of compliance should not vary significantly from the costs of 
complying with existing regulations.
    Small entities would need to adapt their software and compliance 
systems to provide the new forms. In addition to changing the format of 
the required forms, the new forms include several new disclosures that 
are required by the Dodd-Frank Act. Accordingly, the cost of adapting 
software and compliance systems in connection with these new 
disclosures will be included in the cost of adapting software and 
compliance systems to provide the new forms. Therefore, the Bureau does 
not provide separate estimates for the costs of adding this additional 
information.
    Based on information provided by creditors and by software vendors, 
the Bureau believes that, in general, small creditors primarily rely on 
software and compliance systems provided by outside vendors. One of the 
SERs estimated that 95 percent of creditors that originate less than $5 
billion in mortgages per year, which would include all small creditors, 
rely on vendors. The use of vendors by small creditors will 
substantially mitigate the costs of revising software and compliance 
systems, as the efforts of a single vendor would address the needs of a 
large number of creditors. Based on discussions with vendors that 
provide software and compliance systems to mortgage creditors, the 
costs of these updates would not be directly passed on to the small 
creditors.
    Based on feedback provided by small entities that participated in 
the Small Business Review Panel process, the Bureau estimates that 
smaller creditors that maintain their own compliance software and 
systems would incur costs of roughly $100,000 to determine what changes 
need to be made and to update their systems to comply with the final 
rule. The total cost for these smaller creditors that maintain their 
own compliance software and systems is therefore $100,000*12,369 
*5%=61,845,000.
    Small creditors that are covered persons would incur one-time costs 
associated with training employees to use new forms and any new 
compliance software and systems. The Bureau estimates that each loan 
officer or other loan originator will need to receive eight hours of 
training. For every 10 hours of loan officer training, it is assumed 
that there is 1 hour of dedicated trainer time. For each hour of loan 
officer training time, it is assumed that back-office staff is trained 
for 0.67 hours. The Bureau estimates that there are 27,771 loan 
officers or other originators at small creditors, who earn on average 
$48 per hour, for a total training cost of $15,500,000. Small creditors 
will also need to develop training and compliance materials, at a cost 
of $35,271,000. As was assumed with all creditors, legal or management 
staff at each creditor spends 8 hours coordinating with entities that 
conduct settlements, at a total cost of $11,500,000.
    The Bureau estimates that total costs to small creditor covered 
persons of revising software and compliance systems, including three 
months of software vendor training, installation, troubleshooting, and 
in-house testing time, would be $480,741,000. It is important to note 
that this is a one-time cost, and not a recurring cost. For additional 
perspective, the Bureau estimates that there were 880,286 covered 
mortgage originations in 2011, the most recent year for which data are 
available, for a total cost of implementing the new disclosure 
requirements of $123 per origination, amortized over 5 years.
    The total costs for small settlement agents are computed using 
similar categories. The one-time costs for small settlement agents is 
$264,900,000, which can be broken down into $30,500,0000 for training 
settlement agents, $2,200,000 for coordination between settlement 
agents and creditors, $199,000,000 for software vendor training and 
installation, troubleshooting, and training on software, and 
$33,200,000 for developing settlement agent training materials.

2. Definition of Loan Application

    The final rule revises the regulatory definition of the term 
``application'' to provide clarity to consumers regarding when a Loan 
Estimate must be provided by a creditor or mortgage broker. Under TILA 
and RESPA, a creditor or mortgage broker is not required to provide the 
good faith estimates of loan terms and settlement costs in the early 
TILA disclosure and RESPA GFE until it has received an ``application.'' 
As discussed more fully in the section-by-section analysis of Sec.  
1026.2(a)(3) above, under current regulations, the receipt of the 
following information by the creditor or mortgage broker constitutes 
receipt of an ``application'': (1) Borrower's name; (2) borrower's 
monthly income; (3) borrower's social security number to obtain a 
credit report; (4) the property address; (5) an estimate of the value 
of the property; (6) mortgage loan amount sought; and (7) any other 
information deemed necessary by the creditor. The seventh item could 
allow creditors and mortgage brokers to delay providing the integrated 
Loan Estimate until after collection of the six specific items, to 
collect any information they deem ``necessary.'' By providing a bright 
line standard governing when the Loan Estimate must be provided, the 
final rule will enable consumers to understand the application stage of 
their mortgage loan transactions, specifically, when they can obtain 
the Loan Estimate that contains reliable estimates that are subject to 
the good faith estimate and tolerance requirements of Sec.  1026.19(e). 
This bright line standard will better enable consumers to plan their 
shopping for mortgage loans. In addition, this bright line standard 
will facilitate compliance for industry and supervisory agencies that 
examine for compliance with the integrated disclosure requirements. The 
final rule removes the seventh item (``any other information deemed 
necessary by the creditor'') from the definition of ``application.''
Costs to Small Entities
    The Bureau understands that eliminating creditors' and mortgage 
brokers' ability to wait to provide a good faith estimate until after 
they receive ``any other information deemed necessary'' could increase 
the burden on small creditors and mortgage brokers to the extent that 
it causes them to issue more Loan Estimates than they would under the 
current definition of application. If a creditor or mortgage broker 
obtains additional information from the borrower after the Loan 
Estimate has been issued that affects the costs of the settlement 
service for the loan, the creditor may need to issue a revised Loan 
Estimate. The Bureau is unaware of information that would

[[Page 80097]]

allow it to estimate how often this would occur. The Bureau believes, 
however, that many creditors and mortgage brokers will mitigate this 
potential cost by adjusting their business practices surrounding the 
receipt of applications to gather other important information prior to, 
or at the same time as, they obtain the six items that together 
constitute an ``application.''

3. Changes in Settlement Costs/Redisclosures

    The final rule revises current rules regarding the circumstances in 
which a consumer may be charged more at closing for settlement services 
than the creditor estimated in the disclosure provided to the consumer 
three business days after application. As discussed more fully in the 
section-by-section analysis of Sec.  1026.19(e)(3) above, HUD's 2008 
RESPA Final Rule limits the circumstances in which a creditor can 
charge the consumer more at consummation for settlement services than 
the creditor estimated in the RESPA GFE provided to the consumer three 
business days after application. These rules generally place charges 
into three categories: The creditor's charges for its own services, 
which cannot exceed the creditor's estimates unless an exception 
applies (``zero tolerance''); charges for settlement services provided 
by third parties, which cannot exceed estimated amounts by more than 10 
percent unless an exception applies (``10 percent tolerance''); and 
other charges that are not subject to any limitation on increases (``no 
tolerance''). The rules permit certain limited exceptions in which 
higher charges are permitted, such as when the borrower requests a 
change, when the RESPA GFE expires, or when valid changes in 
circumstance occur. The Bureau is aware of concerns that HUD's 2008 
RESPA Final Rule is both too lax and too restrictive, and also that the 
rule is difficult to understand. The final rule attempts to address 
these concerns by balancing the objective of improving the reliability 
of the estimates creditors give consumers shortly after application 
with the objective of preserving creditors' flexibility to respond to 
unanticipated changes that occur during the loan process. Specifically, 
the final rule applies the zero tolerance category to a larger range of 
charges, including fees charged by an affiliate of the creditor and 
charges for services for which the creditor does not permit the 
consumer to shop. A service provider is considered to be selected by 
the creditor if consumers are required to choose only from a list of 
service providers prepared by the creditor (i.e., if consumers are not 
permitted to shop for their own provider).
Benefits to Small Entities
    Small entities may benefit from the final rule because it reduces 
compliance burden by resolving current regulatory ambiguities. For 
example, the final rule revises the current rule on and provides 
additional guidance regarding use of average cost pricing. The final 
rule further streamlines and clarifies HUD's 2008 RESPA Final Rule by 
incorporating prior HUD guidance into Regulation Z and its commentary, 
as necessary and appropriate. Further, to the extent the final rule 
reduces unnecessary redisclosure of the RESPA content currently 
provided on the GFE, the rule decreases costs to creditors, although 
the extent to which the final rule would have such an effect is 
unknown. Reducing unnecessary redisclosure may also benefit consumers, 
to the extent that redisclosures lead to consumer confusion.
    The Bureau is unaware of reliable data showing how often creditors 
are providing additional disclosures that are not required by the 
current rule and that they would no longer send under the final rule. 
Some creditors, however, have reported that additional clarity 
regarding redisclosure requirements for the RESPA GFE and average cost 
pricing would reduce the cost of compliance, in part, by reducing 
confusion over when redisclosure is permitted or required, and thereby 
reducing the need for the involvement of the compliance department in 
everyday business activities and any legal advice that a creditor might 
seek.
Costs to Small Entities
    The Bureau understands that small entities may experience increased 
costs as a result of applying the zero tolerance category to a larger 
range of charges. Since the final rule expands the circumstances in 
which creditors cannot pass on increased costs to consumers when the 
initial estimate is lower than the actual costs, creditors may be 
required to absorb more costs when no exception, such as a legitimate 
change in circumstances, is present. This impact should be mitigated to 
the extent creditors are in a position to know the typical charges of 
affiliated firms and firms they engage repeatedly and require consumers 
to use, and can therefore provide estimates that are accurate when 
there is no changed circumstance. As discussed above, the Bureau is 
unaware of any data that can provide reliable market-wide estimates of 
the prevalence of changes between early TILA disclosures and RESPA GFEs 
and final loan terms and closing costs, and the causes of those 
changes. Therefore, the Bureau cannot provide estimates of how often 
creditors would have to absorb higher than expected costs that cannot 
be attributed to a changed circumstance. The Bureau also understands 
that the final rule may result in increased use of affiliated service 
providers, so that creditors can more directly control changes in 
settlement costs, which could have a negative impact on independent 
providers who are typically small entities. Some commenters argued that 
the negative impact on independent providers could lead to reduced 
competition for settlement services and ultimately higher costs for 
consumers. The Bureau is unaware of any evidence that such an increase 
in costs is likely to occur. Alternatively, the final rule may 
encourage creditors to allow borrowers to choose settlement service 
providers that are not on a list provided to the borrower, so that the 
zero tolerance requirement would not apply. This would appear to 
benefit independent service providers, or at least be neutral relative 
to current practices.

4. Provision of Closing Disclosure

    The final rule requires delivery of the integrated Closing 
Disclosure three business days before consummation in all cases. The 
final rule makes the creditor responsible for providing the Closing 
Disclosure, but allows for either the creditor or the settlement agent 
to provide it.
Timing of Closing Disclosure Provision
    TILA and RESPA establish different timing requirements for 
disclosing final loan terms and costs to consumers. As discussed more 
fully in the section-by-section analysis of Sec.  1026.19(f)(1)(i) 
above, TILA generally provides that, if the early disclosures contain 
an APR that is no longer accurate, the creditor shall furnish an 
additional, corrected disclosure to the consumer not later than three 
business days before consummation. RESPA, on the other hand, requires 
that the final statement of loan costs and terms be provided to the 
consumer at or before settlement, with the borrower permitted to 
request an inspection of the RESPA settlement statement one day prior 
to closing. To meet the Dodd-Frank Act's mandate to integrate the 
disclosures required by TILA and RESPA, and to better facilitate 
consumer understanding of final loan terms and closing costs, the final 
rule requires delivery of the integrated

[[Page 80098]]

Closing Disclosure three business days before closing in all 
circumstances. However, to prevent unnecessary closing delays, the 
final rule permits limited changes after provision of the Closing 
Disclosure to reflect common adjustments, such as changes to recording 
fees. A new Closing Disclosure must be provided with a new three-day-
waiting period if and only if one of the following triggers is met: The 
APR becomes inaccurate, as defined in Sec.  1026.22, the product type 
changes, or a prepayment penalty is added.
Costs to Small Entities
    The required provision of the Closing Disclosure three business 
days prior to consummation in all circumstances may result in closing 
delays. In extreme cases, such delays could cause a transaction to fall 
through if a consumer is under a contractual obligation to close by a 
certain date. Creditors and closing agents, however, currently 
coordinate to provide RESPA closing documents at closing. Both closing 
agents and creditors have incentives to complete closings as scheduled, 
and therefore the Bureau believes that they will adjust their business 
practices such that the Closing Disclosure will be provided in a timely 
manner and closing problems will be infrequent. If the requirement does 
lead to delayed or canceled closings, this would impose costs on small 
entities. Such closing delays could result in loss of revenue for 
transactions that fall through due to a delay. The final rule may also 
create legal and reputational risks for creditors or settlement agents 
that are unable to close loans as planned.
    As discussed above, to prevent unnecessary closing delays, the 
final rule permits limited changes after provision of the Closing 
Disclosure to reflect common adjustments, such as changes to recording 
fees. A new Closing Disclosure must be provided with a new three-day-
waiting period if and only if one of the following triggers is met: The 
APR becomes inaccurate, as defined in Sec.  1026.22, the product type 
changes, or a prepayment penalty is added. The Bureau believes these 
changes will help reduce or minimize costs imposed on small entities.
Responsibility for Providing the Closing Disclosure
    TILA and RESPA require that different parties provide the final 
disclosures to consumers. Specifically, TILA requires the creditor to 
provide the final TILA disclosure to consumers, while RESPA requires 
that the person conducting the settlement provide the final statement 
of settlement costs to the consumer. However, section 1419 of the Dodd-
Frank Act amended TILA to make creditors responsible for disclosing 
settlement cost information. See TILA section 128(a)(17). To reconcile 
these statutory differences and implement TILA section 128(a)(17), the 
final rule makes the creditor ultimately responsible for provision of 
the Closing Disclosure three business days before closing, but 
creditors may use settlement agents to provide the Closing Disclosure, 
provided that they comply with the final rule's requirements for the 
Closing Disclosure.
Costs to Small Entities
    The costs to creditors and to settlement agents of potential joint 
responsibility for provision of the Closing Disclosure depend on how 
creditors and settlement agents go about fulfilling such 
responsibility. Joint provision would likely require coordination on 
the part of creditors and settlement agents similar to what is done 
today, which could indicate that any additional costs to creditors or 
settlement agents would be minimal. One additional cost, however, may 
be re-working that coordination to adjust to the new forms and timing 
requirement (discussed above).

5. Implementation of New Disclosures Mandated by the Dodd-Frank Act

    As discussed more fully in the section-by-section analysis above, 
title XIV of the Dodd-Frank Act added new disclosure requirements to 
TILA and RESPA for mortgage transactions. With respect to the 
disclosures included in the Loan Estimate and Closing Disclosure, 
although the Dodd-Frank Act does not specifically require inclusion of 
all of these new disclosures, the Bureau believes these disclosures 
should be included in the integrated forms because doing so will 
improve the overall effectiveness of the integrated disclosure, which 
may benefit consumers and covered persons, and also reduce burden on 
covered persons. Finalizing the rules implementing these title XIV 
disclosures simultaneously with the final TILA-RESPA rule will avoid 
unnecessary regulatory burden by preventing creditors from having to 
implement multiple rounds of disclosure rules. The Bureau does not 
anticipate additional costs to covered persons as a result of the new 
disclosure requirements included in the Loan Estimate and Closing 
Disclosure.
    Beyond introducing the Loan Estimate and Closing Disclosure, the 
final rule also includes distinct escrow \397\ and partial payment 
\398\ disclosures, as discussed more fully in the section-by-section 
analysis above. With respect to the Post-Consummation Escrow 
Cancellation Notice and Partial Payment Policy disclosure, which are 
not and cannot be included in the Loan Estimate and Closing Disclosure 
because they are delivered post-consummation, the additional costs are 
likely to be minimal and the disclosures should be relatively easy to 
implement because creditors already have to revamp their origination 
process due to the newly integrated TILA and RESPA disclosures.
---------------------------------------------------------------------------

    \397\ Section 129D(j)(1)(B) establishes that a creditor or 
servicer must provide disclosures after consummation with the 
information set forth under TILA section 129D(j)(2) when a consumer 
chooses, and provides written notice of the choice, to close the 
consumer's escrow account established in connection with a consumer 
credit transaction secured by real property and in accordance with 
any statute, regulation, or contractual agreement (the Post-
Consummation Escrow Cancellation Disclosure). 15 U.S.C. 1639d(h). 
See the section-by-section analysis of Sec.  1026.20(e).
    \398\ Specifically, section 129C(h) requires a person who 
becomes a creditor of an existing ``residential mortgage loan'' to 
disclose the following regarding partial payments: (i) The 
creditor's policy regarding the acceptance of partial payments; and 
(ii) if they are accepted, how such payments will be applied to the 
mortgage loan, and if such payments will be placed in escrow. 15 
U.S.C. 1639c(h). This requirement is in addition to the identical 
disclosure required before settlement that was added to TILA by 
section 1414(d) of the Dodd-Frank Act, which the Bureau is 
implementing in Sec.  1026.38(l)(5), as described above. See the 
section-by-section analysis of Sec.  1026.39.
---------------------------------------------------------------------------

d. Estimate of the Classes of Small Entities Which Will Be Subject to 
the Requirement and the Type of Professional Skills Necessary for the 
Preparation of the Report or Record
    Section 603(b)(4) of the RFA requires an estimate of the classes of 
small entities which will be subject to the requirement. The classes of 
small entities which will be subject to the reporting, recordkeeping, 
and compliance requirements of the final rule are the same classes of 
small entities that are identified above in part VIII.B.3.
    Section 603(b)(4) of the RFA also requires an estimate of the type 
of professional skills necessary for the preparation of the reports or 
records. The Bureau does not anticipate that, except in certain rare 
circumstances, any professional skills required for reporting, 
recordkeeping, and other compliance requirements of this final rule 
will be required that are not otherwise required in the ordinary course 
of business of the small entities affected by the final rule. Part 
VIII.B.4.b and 4.c summarizes the recordkeeping

[[Page 80099]]

and compliance requirements of the final rule that will affect small 
entities.
    With regard to the compliance requirements, as discussed above, the 
Bureau understands that, based on feedback from the SERs, the small 
entities that will be affected by the final rule will continue to 
perform the basic functions that they perform today: generating 
disclosure forms (and answering consumers' questions about them), 
taking loan applications, redisclosing estimates of settlement costs, 
providing final disclosures, and maintaining systems to calculate the 
APR. The major elements of the final rule, described earlier in this 
part VIII, relate to these continuing functions. Therefore, the Bureau 
believes that small entities will have the professional skills 
necessary to comply with the final rule.
    Specifically with regard to the requirement to use the integrated 
disclosure forms, the SERs identified potentially significant one-time 
costs associated with changing software systems to produce the forms 
and provided a wide range of estimates of one-time costs of training 
staff and related parties to use the new integrated forms and update 
systems and processes.\399\ The SERs also reported that they typically 
contract out to third party software vendors the design of the 
disclosure forms provided to consumers, and pay annual fees to such 
vendors for upgrades. The SERs did not express any concerns that the 
design and implementation of the forms or the use of the integrated 
disclosure forms on an ongoing basis would require their staff to 
possess a different set of professional skills than that required in 
the ordinary course of business currently. Furthermore, while the SERs 
identified potential upfront and ongoing training costs as a result of 
the proposals under consideration at the time, the Bureau believes 
efforts to train small entity staff on the updated software and 
compliance systems will reinforce existing professional skills, rather 
than require staff to acquire skill sets above those needed in the 
ordinary course of business, and to comply with HUD's 2008 Final RESPA 
Rule (which, as discussed above, significantly overhauled the design 
and content of the RESPA GFE and settlement statement disclosures given 
to consumers).
---------------------------------------------------------------------------

    \399\ See Small Business Review Panel Report at 18.
---------------------------------------------------------------------------

    In addition, although the Bureau acknowledges the possibility that 
certain small entities may have to hire additional staff as a result of 
certain aspects of the final rule,\400\ the Bureau has no evidence that 
such additional staff will have to possess a qualitatively different 
set of professional skills than small entity staff employed currently. 
The Bureau presumes that any additional staff that small entities may 
need to hire would be of the same professional skill set as current 
staff, since this final rule will be reallocating existing 
responsibilities among creditors and settlement agents. As a more 
general matter, to the extent the final rule adds new disclosures that 
will need to be generated and explained to consumers, the Bureau 
anticipates that any incremental increase in the complexity of such 
tasks for small entity staff may be counterbalanced by the regulatory 
streamlining and clearer guidance provided by the final rule.
---------------------------------------------------------------------------

    \400\ For example, as discussed in part VIII.B.4.c.(4), small 
entity creditors may need to hire additional temporary or permanent 
staff to handle the increased workload associated with collecting 
the settlement costs and coordinating with the settlement agents and 
third party service providers.
---------------------------------------------------------------------------

6-1. Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities
    The Bureau understands the new provisions will impose certain costs 
on small entities, and has attempted to mitigate the burden where it 
can be done without unduly diminishing consumer protection. The 
section-by-section analysis of each provision contains a complete 
discussion of the steps taken to minimize burden for small entities.
    Since the disclosures are mandatory for all transactions covered by 
RESPA, the Bureau believes that once the new disclosures are 
implemented, the ongoing cost of providing the disclosures will not 
have a major impact on small entities covered by the rule versus larger 
entities covered by the rule. Similarly, the tolerance rules and timing 
requirements align for small and large entities, and are calculated 
similarly on a per-loan basis. To the extent that small entities may 
have less sophisticated information technology systems, the Bureau's 
decision not to finalize the proposed electronic, machine readable 
record retention requirement or the proposed expansion of the finance 
charge reduces burden on small entities relative to what would have 
been required if these proposals had been finalized, since they will 
not have to upgrade their information technology systems in these ways 
to comply with the final rule.
6-2. Description of the Steps the Agency Has Taken To Minimize Any 
Additional Cost of Credit for Small Entities
    Section 603(d) of the RFA requires the Bureau to consult with small 
entities regarding the potential impact of the proposed rule on the 
cost of credit for small entities and related matters. 5 U.S.C. 603(d). 
To satisfy these statutory requirements, the Bureau provided 
notification to the Chief Counsel on February 7, 2012, that the Bureau 
would collect the advice and recommendations of the same small entity 
representatives identified in consultation with the Chief Counsel 
through the Small Business Review Panel process concerning any 
projected impact of the proposed rule on the cost of credit for small 
entities.\401\ The Bureau sought to collect the advice and 
recommendations of the small entity representatives during the Small 
Business Review Panel Outreach Meeting regarding the potential impact 
on the cost of business credit because, as small financial service 
providers, the SERs could provide valuable input on any such impact 
related to the proposed rule.\402\
---------------------------------------------------------------------------

    \401\ See 5 U.S.C. 603(d)(2)(A). The Bureau provided this 
notification and other information provided to the Chief Counsel 
with respect to the Small Business Review Panel process pursuant to 
section 609(b)(1) of the RFA.
    \402\ See 5 U.S.C. 603(d)(2)(B).
---------------------------------------------------------------------------

    At the time the Bureau circulated the Small Business Review Panel 
Outline to the SERs in advance of the Small Business Review Panel 
Outreach Meeting, it had no evidence that the proposals then under 
consideration would result in an increase in the cost of business 
credit for small entities. Instead, the summary of the proposals stated 
that the proposals would apply only to mortgage loans obtained by 
consumers primarily for personal, family, or household purposes, and 
the proposals would not apply to loans obtained primarily for business 
purposes.\403\ The Bureau has no evidence that the final rule will 
result in an increase in the cost of business credit for small 
entities. Instead, the final rule will apply only to mortgage loans 
obtained by consumers primarily for personal, family, or household 
purposes and the final rule will not apply to loans obtained primarily 
for business purposes. At the Small Business Review Panel Outreach 
Meeting, the Bureau asked the SERs a series of questions regarding cost 
of business credit issues.\404\ The questions

[[Page 80100]]

were focused on two areas. First, the SERs from commercial banks/
savings institutions, credit unions, and mortgage companies were asked 
whether, and how often, they extend to their customers closed-end 
mortgage loans to be used primarily for personal, family, or household 
purposes but that are used secondarily to finance a small business, and 
whether the proposals then-under consideration would result in an 
increase in their customers' cost of credit. Second, the Bureau 
inquired as to whether, and how often, the SERs take out closed-end, 
home-secured loans to be used primarily for personal, family, or 
household purposes and use them secondarily to finance their small 
businesses, and whether the proposals under consideration would 
increase the SERs' cost of credit.
---------------------------------------------------------------------------

    \403\ See 15 U.S.C. 1603(1); 12 U.S.C. 2606(a)(1).
    \404\ See the Small Business Review Panel Report, appendix D, at 
154-155 (PowerPoint slides from the Panel Outreach Meeting, ``Topic 
7: Impact on the Cost of Business Credit'').'')
---------------------------------------------------------------------------

    In general, the creditor SERs reported making few mortgage loans 
that are used primarily for personal, family, or household purposes 
(and therefore are covered by TILA and RESPA) but that are used, 
secondarily, to finance a small business. In addition, the few loans 
they described making would appear to fall within the TILA and RESPA 
exceptions for loans made primarily for business purposes,\405\ and 
therefore would not be subject to the proposed rule. Based on the 
feedback obtained from the SERs at the Panel Outreach Meeting, the 
Bureau currently has no evidence that the final rule will result in an 
increase in the cost of credit for small business entities.
---------------------------------------------------------------------------

    \405\ See 15 U.S.C. 1603(1); 12 U.S.C. 2606(a)(1).
---------------------------------------------------------------------------

IX. Paperwork Reduction Act

A. Overview

    Certain provisions of this final rule contain ``collection of 
information'' requirements within the meaning of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (Paperwork Reduction Act 
or PRA). As previously discussed, the Dodd-Frank Act amended TILA and 
RESPA to mandate specifically that the Bureau publish an integrated 
disclosure combining the TILA and RESPA disclosures for mortgage loans 
subject to either law or both laws. Dodd-Frank Act sections 1098, 
1100A. The Dodd-Frank Act required the Bureau to publish proposed rules 
and forms combining the disclosures by July 21, 2012. Dodd-Frank Act 
section 1032(f). On July 9, 2012, the Bureau issued a notice of the 
proposed rule, which was published in the Federal Register on August 
23, 2012 (77 FR 51116). The Bureau did not receive any comments 
relating to the PRA analysis contained in the proposed rule or comments 
containing specific cost estimates addressing the Bureau's PRA 
analysis. This final rule finalizes that proposal.
    This rule contains information collection requirements that have 
not been approved by the OMB and, therefore, are not effective until 
OMB approval is obtained. The unapproved information collection 
requirements contained in this rule are described below. The Bureau 
will publish a separate notice in the Federal Register announcing OMB's 
action on these requirements, including the OMB control number and 
expiration date.
    This final rule amends 12 CFR part 1024 (Regulation X) and 12 CFR 
part 1026 (Regulation Z). Both Regulations X and Z currently contain 
collections of information approved by OMB. The Bureau's OMB control 
number for Regulation X is 3170-0016 and for Regulation Z is 3170-0015. 
The PRA (44 U.S.C. 3507(a), (a)(2) and (a)(3)) requires that a Federal 
agency may not conduct or sponsor a collection of information unless 
OMB has approved the collection under the PRA and the OMB control 
number obtained is displayed. Further, notwithstanding any other 
provisions of law, no person is required to comply with, or is subject 
to any penalty for failure to comply with, a collection of information 
that does not display a currently valid OMB control number (44 U.S.C. 
3512).
    Based on the specific statutory mandate to combine the disclosures 
under TILA and RESPA, the Bureau is amending Regulation X and 
Regulation Z to establish new disclosure requirements and forms in 
Regulation Z for closed-end consumer credit transactions secured by 
real property, other than reverse mortgages. Accordingly, the final 
rule requires, among other things, that an integrated Loan Estimate be 
provided to consumers within three business days after receipt of the 
consumer's application to replace the early TILA disclosure and RESPA 
GFE, and that an integrated Closing Disclosure be received by consumers 
at least three business days prior to consummation to replace the final 
TILA disclosure and RESPA settlement statement. The Dodd-Frank Act also 
made several amendments to the disclosure requirements in TILA and 
RESPA, a number of which are being finalized in this final rule.
    The information collections in the final rule are required to 
provide benefits for consumers and are mandatory for all loans subject 
to the rule. See 15 U.S.C. 1601 et seq.; 12 U.S.C. 2601 et seq., 
5532(f). Because the Bureau does not collect any information under the 
final rule, no issue of confidentiality arises. The likely respondents 
are commercial banks/savings institutions, credit unions, mortgage 
companies (non-bank lenders), mortgage brokers, and settlement agents 
\406\ that would be required to provide the mortgage disclosures 
required by the final rule, either because they make mortgage loans 
subject to the final rule or because they may be responsible for 
completing or providing required disclosures.\407\
---------------------------------------------------------------------------

    \406\ The Bureau assumes that these are the categories of 
businesses that are directly engaged with consumers in residential 
mortgage transactions. Although respondents under PRA for Regulation 
Z also include mortgage brokers and settlement agents, for purposes 
of the PRA analysis, the Bureau assumes that the creditor takes on 
the obligation to deliver the Loan Estimate and Closing Disclosure. 
Accordingly, there is minimal burden attributed to mortgage brokers 
and settlement agents. Also, under the final rule, the creditor is 
solely responsible for delivering the Loan Estimate, but settlement 
agents are also expressly permitted to provide the Closing 
Disclosure.
    \407\ For purposes of this PRA analysis, references to 
``creditors'' or ``lenders'' refer collectively to commercial banks, 
savings institutions, credit unions, and mortgage companies (i.e., 
nondepository lenders), unless otherwise stated. Moreover, reference 
to ``respondents'' shall generally mean all categories of entities 
identified in the sentence to which this footnote is appended, 
except as otherwise stated or if the context indicates otherwise.
---------------------------------------------------------------------------

    Under the final rule, the Bureau accounts for the entire paperwork 
burden for respondents under Regulation X. The Bureau generally also 
accounts for the paperwork burden associated with Regulation Z for the 
following respondents pursuant to its administrative enforcement 
authority: insured depository institutions with more than $10 billion 
in total assets, their depository institution affiliates, and certain 
nondepository institutions. The Bureau and the FTC generally both have 
enforcement authority over nondepository institutions for Regulation Z. 
Accordingly, the Bureau has allocated to itself half of the estimated 
burden to nondepository institutions. Other Federal agencies are 
responsible for estimating and reporting to OMB the total paperwork 
burden for the institutions for which they have administrative 
enforcement authority. They may, but are not required to, use the 
Bureau's burden estimation methodology.
    For purposes of this analysis, the Bureau assumes that any burden 
increase associated with the final rule is allocated to Regulation Z. 
As discussed in part IX.C.2, below, under the final rule there is no 
burden increase associated with Regulation X, and in fact there is a 
burden reduction attributed to Regulation X because the

[[Page 80101]]

RESPA GFE and settlement statement disclosures are eliminated for all 
of the mortgage market, other than reverse mortgages, and replaced by 
the Loan Estimate and Closing Disclosure, under Regulation Z. Using the 
Bureau's burden estimation methodology, the total estimated burden for 
the approximately 14,195 banks, savings institutions, credit unions, 
and mortgage companies subject to the Regulation Z requirements in the 
final rule,\408\ including Bureau respondents, is approximately 2.8 
million hours for one-time changes and 0.8 million hours annually. The 
estimates presented in this part IX represent weighted averages across 
respondents. The Bureau expects that the amount of time required to 
implement each of the changes for a given institution may vary based on 
the size, complexity, and practices of the respondent.
---------------------------------------------------------------------------

    \408\ For the reasons described above, this figure excludes 
mortgage brokers and settlement agents.
---------------------------------------------------------------------------

B. Information Collection Requirements

    The Bureau believes the following aspects of the final rule are 
information collection requirements under the PRA: the development, 
implementation, and continuing use of new, integrated Loan Estimate and 
Closing Disclosure forms required for closed-end mortgage transactions 
subject to the final rule, the generation and provision of additional 
Loan Estimates in particular transactions as a result of increases in 
the closing costs that were included in the initial Loan Estimate, and 
the provision of the Post-Consummation Escrow Cancellation Notice and 
post-consummation Partial Payment Policy disclosure for certain 
mortgage transactions.\409\ In the proposed rule the Bureau also 
discussed potential record retention requirements in a standardized, 
electronic, machine-readable format. For the reasons discussed above in 
part V, the Bureau has decided not to finalize such proposal.
---------------------------------------------------------------------------

    \409\ The final rule also provides that, if the creditor permits 
a consumer to shop for a settlement service, the creditor shall 
provide the consumer with a written list identifying available 
providers of that service and stating that the consumer may choose a 
different provider for that service. Accordingly, creditors must 
comply with this additional requirement in certain transactions 
where consumers are permitted to shop for settlement services. This 
is an existing requirement under current Regulation X, 12 CFR 1024 
app. C, but is not specifically itemized as a separate information 
collection under Regulation X. Because the timing of this 
requirement coincides with the provision of the initial Loan 
Estimate to consumers, the burden associated with the written list 
of providers requirement under the final rule is included in the 
burden calculation for the Loan Estimate.
---------------------------------------------------------------------------

1. Initial and Final Disclosures
    As discussed above in part VII, the integrated Loan Estimate and 
the Closing Disclosure would result in certain compliance costs to 
covered persons. The Bureau believes that many of the costs of 
complying with these requirements would be common across the two 
disclosures, and therefore discusses them together here. Under the 
final rule, responsibility for delivering the Loan Estimate lies with 
the creditor. The Bureau believes that in some circumstances the Loan 
Estimate may be delivered by a mortgage broker acting on behalf of the 
creditor. The Bureau believes the costs would be similar for Loan 
Estimates delivered by creditors and mortgage brokers, and the 
estimates presented here are based on the assumption that the creditor 
delivers the Loan Estimate. As mentioned above, the creditor is 
responsible for providing the Closing Disclosure, but the settlement 
agent may provide the Closing Disclosure on the creditor's behalf, 
provided that one of them does so. The Bureau believes that if 
settlement agents were to take on a substantial portion of the 
responsibility for delivering the Closing Disclosure the costs would be 
similar, although they may be borne by different parties.
a. One-Time costs
    Covered persons will incur one-time costs associated with training 
and reviewing the regulation. In addition, covered persons who maintain 
their own software and compliance systems will incur one-time costs to 
adapt their software and compliance systems to produce the new 
forms.\410\ Based on information provided by creditors and by software 
vendors, the Bureau believes that, in general, larger creditors develop 
and maintain their own compliance software and systems, while smaller 
creditors primarily rely on software and compliance systems provided by 
outside vendors. The Bureau estimates 95 percent of creditors rely on 
vendors.
---------------------------------------------------------------------------

    \410\ In addition to changing the format of the required forms, 
the new forms include numerous new disclosures that are required by 
the Dodd-Frank Act. The Bureau believes that this additional 
information will be added to the forms as part of the process of 
adapting software and compliance systems to produce the new forms, 
and therefore does not provide separate estimates for the costs of 
adding this additional information.
---------------------------------------------------------------------------

    The use of vendors will substantially mitigate the costs of 
revising software and compliance systems, as the efforts of a single 
vendor would address the needs of a large number of creditors. When a 
vendor is used, the Bureau assumes that each entity spends 3 months of 
software vendor training, installation, trouble, troubleshooting, and 
in-house testing time for 1 individual at small creditors and 8 
individuals at larger firms. Based on feedback provided by small 
entities that participated in the Small Business Review Panel process, 
the Bureau estimates that creditors that maintain their own compliance 
software and systems would incur costs of roughly $100,000 to determine 
what changes need to be made and to update their systems to comply with 
the final rule.
    Covered persons will incur one-time costs associated with training 
employees to use new forms and any new compliance software and systems. 
The Bureau estimates that each loan officer or other loan originator 
will need to receive eight hours of training. The Bureau further 
estimates that a trainer will spend an hour for every ten hours of 
trainee time.
    The Bureau estimates that, for each covered person, two compliance 
officers would each spend 30 hours learning about the rule and 
developing training materials.
    The Bureau estimates the total one-time costs of reading the 
relevant sections of the Federal Register, revising systems to provide 
the new disclosures, and training personnel for the Bureau respondents 
to be approximately $96.7 million, which corresponds to approximately 
2,800,000 hours. Annualized over five years, this is an annual cost of 
$19.3 million. The Bureau estimates the one-time costs to the 134 
depository institutions (including their depository affiliates) that 
are mortgage originator respondents of the Bureau under Regulation Z 
\411\ would be $54.1 million, or 1,100,000 hours. For the estimated 
2,787 nondepository institutions that are subject to the Bureau's 
administrative enforcement authority, the Bureau is assuming that it 
imposes half the burden imposed on nondepository institutions for 
purposes of this PRA analysis.\412\ The Bureau estimates the one-time 
costs would be $42.6 million, or 1,700,000 hours.\413\
---------------------------------------------------------------------------

    \411\ There are 154 depository institutions (and their 
depository affiliates) that are subject to the Bureau's 
administrative enforcement authority. For purposes of this PRA 
analysis, the Bureau has calculated its burden hours and costs based 
on the estimated 128 depository institutions subject to Regulation Z 
that are mortgage originators.
    \412\ Unless otherwise specified, all references to burden hours 
and costs for the Bureau respondents are based on a calculation of 
half of the estimated 2,515 nondepository institutions.
    \413\ For additional information, please see the amended 
Supporting Statement for OMB Control Number 3170-0016, available at 
www.reginfo.gov.

---------------------------------------------------------------------------

[[Page 80102]]

b. Ongoing Costs
    In addition to one-time costs to revise systems and train 
employees, covered persons will have ongoing costs from providing the 
disclosures. Based on industry feedback, the Bureau understands that 
most disclosures will be generated by automated systems that use data 
collected by covered entities in the normal course of business. The 
Bureau believes that a small number of the disclosures in the Loan 
Estimate and Closing Disclosure will be generated using data that may 
not otherwise be collected in the normal course of business, and has 
considered this in calculating the ongoing burden associated with the 
information collection. The Bureau's estimates also account for the 
time covered persons would spend to review the forms for accuracy.
    In calculating the total burden of providing Loan Estimates and 
Closing Disclosures, the Bureau assumes that Loan Estimates will be 
provided in response to applications for mortgages and Closing 
Disclosures will be provided three business days before mortgages are 
consummated. The Bureau further estimates entities will reissue on 
average two Loan Estimates per loan originated.
    Table 2 summarizes these ongoing costs, which total an estimated 
$49.6 million per year. This represents an average cost of 
approximately $9 per origination.\414\
---------------------------------------------------------------------------

    \414\ Bureau respondents are estimated to originate 
approximately 4.8 million mortgages per year that would be subject 
to these information collections.
[GRAPHIC] [TIFF OMITTED] TR31DE13.001

2. Implementation of Certain New Disclosures Mandated by the Dodd-Frank 
Act
    As discussed above in part VII, title XIV of the Dodd-Frank Act 
added new disclosure requirements to TILA and RESPA for mortgage 
transactions, including the Post-Consummation Escrow Cancellation 
Notice and the post-consummation Partial Payment Policy disclosure for 
certain mortgage transactions. Although the Dodd-Frank Act does not 
specifically require inclusion of all of these new disclosures in the 
Loan Estimate and the Closing Disclosure, the Bureau is including some 
of these disclosures in the integrated forms and also requiring the 
provision of the separate Post-Consummation Escrow Cancellation Notice 
and separate Partial Payment Policy disclosure because doing so will 
benefit consumers and reduce burden on covered persons for the reasons 
discussed below.
    Because creditors will be updating software and compliance systems 
for these two disclosures at the same time as and in conjunction with 
the updating for the Loan Estimate and the Closing Disclosure, the 
disclosures should be relatively easy to implement and the additional 
costs are likely to be minimal. The Bureau does not anticipate 
additional costs to covered persons as a result of the Post-
Consummation Escrow Cancellation Notice and separate Partial Payment 
Policy disclosure, although, as noted above, covered persons may incur 
some insignificant recurring costs associated with providing this 
additional information to consumers once the implementing rules take 
effect. Although presentation of the information will be ongoing, 
modifying systems to perform these calculations and training existing 
employees on the new concepts will be a one-time cost. Accordingly, the 
Bureau does not provide separate estimates for the one-time or ongoing 
costs of adding this additional information beyond the cost estimates 
for the integrated disclosures that are discussed above and below.
3. Documentation Retention
    The current record retention period of two years under Regulation Z 
supports private actions and regulatory enforcement actions. However, 
the CFPB has decided to require creditors to retain evidence of 
compliance with the integrated disclosure provisions of Regulation Z 
for three years after consummation of the transaction, except that 
creditors must retain the Closing Disclosure and all documents related 
to the Closing Disclosure for five years after consummation, consistent 
with the requirements of existing Regulation X. Creditors must retain 
evidence of compliance with the Post-Consummation Escrow Cancellation 
Notice and the post-consummation Partial Payment Policy disclosure for 
two years in accordance with the general retention period under 
1026.25(a). The final rule also requires that if a creditor sells, 
transfers, or otherwise disposes of its interest in a mortgage and does 
not service the mortgage, the creditor shall provide a copy of the 
Closing Disclosure to the owner or servicer of the mortgage as a

[[Page 80103]]

part of the transfer of the loan file. Such owner or servicer shall 
retain such disclosures for the remainder of the five-year period. The 
CFPB recognizes that this requirement is different from the current 
requirements under Regulation X, which does not require a creditor to 
maintain these documents if the creditor disposes of its interest in 
the mortgage loan and does not service the mortgage loan. In addition, 
the final rule requires creditors and mortgage brokers to retain 
documentation sufficient to show their supervisory agencies that one of 
the exceptions applies whenever a cost for a service provided by a 
company that is owned by or affiliated with the creditor proves to be 
higher than estimated in the Loan Estimate, similar to the current 
document retention requirements under Regulation X for when the RESPA 
GFE is reissued. These retention requirements may result in additional 
cost to respondents that are creditors and mortgage brokers. However, 
the Bureau believes that any burden associated with the final rule's 
recordkeeping requirement will be minimal or de minimis, since only 
information sufficient to reconstruct the required record is required 
to be retained.
    The final rule does not finalize the proposal to require the 
retention of data relating to the integrated disclosures in electronic, 
machine-readable format.

C. Summary of Burden Hours

1. Regulation Z
    The below table summarizes the one time and annual burdens under 
Regulation Z associated with information collections affected by the 
final rule for Bureau respondents under the PRA.
[GRAPHIC] [TIFF OMITTED] TR31DE13.002

2. Regulation X
    The final rule does not increase PRA burden associated with 
Regulation X, and instead removes the majority of the burden associated 
with two information collections: (i) The RESPA GFE and (ii) the RESPA 
settlement statement. Currently, the RESPA GFE and settlement statement 
disclosures account for approximately 10.9 million annual burden 
hours.\415\ Under the final rule, the majority of this burden would be 
eliminated, with only reverse mortgage transactions remaining subject 
to the RESPA GFE and RESPA settlement statement requirements. The 
remaining burden associated with these disclosures in Regulation X 
would total approximately 62,400 hours, assuming no change in the time 
required to respond. The below table summarizes the annual burdens 
under Regulation X associated with information collections affected by 
the final rule.\416\
---------------------------------------------------------------------------

    \415\ The annual burdens attributed to the RESPA GFE and 
settlement statement (HUD-1/HUD-1A) are 3,612,500 hours and 
7,250,000 hours, respectively. See Supporting Statement for OMB 
Control Number 3170-0016, available at http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201110-3170-013 (CFPB); Supporting 
Statement for OMB Control Number 2502-0265, available at http://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=200810-2502-001 
(HUD).
    \416\ All of the following estimates related to Regulation X are 
based on 2010 estimates.

---------------------------------------------------------------------------

[[Page 80104]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.003

3. Net Effect on PRA Estimates of Ongoing Burden
    As discussed above, by integrating the TILA and RESPA disclosures, 
the final rule eliminates the majority of the ongoing PRA burden under 
Regulation X for the RESPA GFE and settlement statement disclosures, 
while simultaneously creating ongoing burden attributable to the 
integrated disclosures in Regulation Z. On a market-wide basis, annual 
PRA burden in Regulation X decreases by approximately 10.8 million 
hours. The Bureau cannot similarly quantify the change in ongoing 
burden under Regulation Z, because current burden estimates neither 
itemize the burden hours attributable to the early, revised, and final 
TILA disclosures nor limit burden hours to mortgage transactions (but, 
instead, estimate for closed-end credit, generally). However, the total 
PRA burden associated with the new integrated disclosures for all 
institutions subject to Regulation Z is estimated to be 2.35 million 
hours annually. These changes reflect the decrease in the number of 
mortgages originated, increased systems automation, changes in 
methodology for calculating burden under the PRA, and the effects of 
the final rule.

D. Comments

    The Consumer Financial Protection Bureau has a continuing interest 
in the public's opinions of our collections of information. At any 
time, comments regarding the burden estimate, or any other aspect of 
this collection of information, including suggestions for reducing the 
burden, may be sent to:
    The Consumer Financial Protection Bureau (Attention: PRA Office), 
1700 G Street NW., Washington, DC 20552, or by the Internet to 
[email protected].

List of Subjects

12 CFR part 1024

    Condominiums, Consumer protection, Housing, Mortgage servicing, 
Mortgages, Reporting and recordkeeping requirements.

12 CFR part 1026

    Advertising, Consumer protection, Credit, Credit unions, Mortgages, 
National banks, Recordkeeping and recordkeeping requirements, 
Reporting, Savings associations, Truth in lending.

Authority and Issuance

    For the reasons set forth in the preamble, the Bureau amends 12 CFR 
parts 1024 and 1026 as set forth below:

PART 1024--REAL ESTATE SETTLEMENT PROCEDURES ACT (REGULATION X)

0
1. The authority citation for part 1024 continues to read as follows:

    Authority:  12 U.S.C. 2603-2605, 2607, 2609, 2617, 5512, 5532, 
5581.

Subpart A--General

0
2. Section 1024.5 is amended by revising paragraph (a), removing and 
reserving paragraph (b)(1), and adding paragraph (d).
    The revision and addition read as follows:


Sec.  1024.5  Coverage of RESPA.

    (a) Applicability. RESPA and this part apply to federally related 
mortgage loans, except as provided in paragraphs (b) and (d) of this 
section.
* * * * *
    (d) Partial exemptions for certain mortgage loans. Sections 1024.6, 
1024.7, 1024.8, 1024.10, and 1024.21(b) and (c) do not apply to a 
federally related mortgage loan:
    (1) That is subject to the special disclosure requirements for 
certain consumer credit transactions secured by real property set forth 
in Regulation Z, 12 CFR 1026.19(e), (f), and (g); or
    (2) That satisfies the criteria in Regulation Z, 12 CFR 1026.3(h).
* * * * *

Subpart C--Mortgage Servicing

0
3. Section 1024.30 is amended by revising paragraph (c)(1) to read as 
follows:


Sec.  1024.30  Scope.

* * * * *
    (c) Scope of certain sections. (1) Section 1024.33(a) only applies 
to reverse mortgage transactions.
* * * * *

0
4. Section 1024.33 is amended by revising paragraph (a) to read as 
follows:


Sec.  1024.33  Mortgage servicing transfers.

    (a) Servicing disclosure statement. Within three days (excluding 
legal public holidays, Saturdays, and Sundays) after a person applies 
for a reverse mortgage transaction, the lender, mortgage broker who 
anticipates using table funding, or dealer in a first-lien dealer loan 
shall provide to the person a servicing disclosure statement that 
states whether the servicing of the mortgage loan may be assigned, 
sold, or transferred to any other person at any time. Appendix MS-1 of 
this part contains a model form for the disclosures required under this 
paragraph (a). If a person who applies for a reverse mortgage 
transaction is denied credit within the three-day period, a servicing 
disclosure statement is not required to be delivered.
* * * * *

0
5. In Appendix A to part 1024:
0
A. Under the heading Line Item Instructions, Section J. Summary of 
Borrower's Transaction, Line 102, the third sentence is amended by 
capitalizing ``State'' wherever it appears.
0
B. Under the heading Line Item Instructions, Section J. Summary of

[[Page 80105]]

Borrower's Transaction, paragraph 6 containing instructions for Line 
202 is amended by adding at the end of the paragraph ``For reverse 
mortgage transactions, the amount disclosed on Line 202 is the initial 
principal limit.''
0
C. Under the heading Line Item Instructions, Section J. Summary of 
Borrower's Transaction, paragraph 7 containing instructions for Lines 
204-209, is amended by adding at the end of the paragraph ``For reverse 
mortgages, the amount of any initial draw at settlement is disclosed on 
Line 204.''
0
D. Under the heading Line Item Instructions, the heading Section L. 
Settlement Charges is amended by adding a period after ``Charges.''
0
E. Under the heading Line Item Instructions, Section L. Settlement 
Charges, sentence three of paragraph 22 containing instructions for 
Line 1000-1007 is amended by removing ```escrow', and impound','' and 
adding in its place `` `escrow,' and `impound,' ''.
0
F. Under the heading Line Item Instructions, Comparison of Good Faith 
Estimate (GFE) and HUD-1/1A Charges, the last sentence of paragraph 1 
is amended by removing `` `Charges that Cannot Increase', `Charges that 
Cannot Increase More Than 10%', and `Charges that Can Change','' and 
adding in its place `` `Charges that Cannot Increase,' `Charges that 
Cannot Increase More Than 10%,' and `Charges that Can Change,' ''.
0
G. Under the heading Line Item Instructions, Comparison of Good Faith 
Estimate (GFE) and HUD-1/1A Charges, the first sentence of paragraph 2 
is amended by removing `` `Charges that Cannot Increase'.'' and adding 
in its place `` `Charges that Cannot Increase.' ''.
0
H. Under the heading, Comparison of Good Faith Estimate (GFE) and HUD-
1/1A Charges, the first sentence of paragraph 3 is amended by removing 
`` `Charges That Cannot Increase More Than 10%'.'' and adding in its 
place `` `Charges That Cannot Increase More Than 10%.' ''.
0
I. Under the heading, Comparison of Good Faith Estimate (GFE) and HUD-
1/1A Charges, the first sentence of paragraph 5 is amended by removing 
`` `Charges That Can Change'.'' adding in its place `` `Charges That 
Can Change.' ''.
0
J. Remove the paragraph under the heading Loan terms and add two new 
paragraphs in its place.
    The revision reads as follow:

Appendix A to Part 1024--Instructions for Completing HUD-1 And HUD-1A 
Settlement Statements; Sample HUD-1 And HUD-1A Statements

* * * * *

Loan Terms

    This section must be completed in accordance with the 
information and instructions provided by the lender. The lender must 
provide this information in a format that permits the settlement 
agent to simply enter the necessary information in the appropriate 
spaces, without the settlement agent having to refer to the loan 
documents themselves. For reverse mortgages, the initial monthly 
amount owed for principal, interest, and any mortgage insurance must 
read ``N/A'' and the loan term is disclosed as ``N/A'' when the loan 
term is conditioned upon the occurrence of a specified event, such 
as the death of the borrower or the borrower no longer occupying the 
property for a certain period of time. Additionally, for reverse 
mortgages the question ``Even if you make payments on time, can your 
loan balance rise?'' must be answered as ``Yes'' and the maximum 
amount disclosed as ``Unknown.''
    For reverse mortgages that establish an arrangement for the 
payment of property taxes, homeowner's insurance, or other recurring 
charges through draws from the principal limit, the second box in 
the ``Total monthly amount owed including escrow payments'' section 
must be checked. The blank following the first $ must be completed 
with ``0'' and an asterisk, and all items that will be paid using 
draws from the principal limit, such as for property taxes, must 
also be indicated. An asterisk must also be placed in this section 
with the following statement: ``Paid by or through draws from the 
principal limit.'' Reverse mortgage transactions are not considered 
to be balloon transactions for the purposes of the loan terms 
disclosed on page 3 of the HUD-1.
* * * * *

0
6. Appendix B to part 1024 is amended by revising paragraph 12 to read 
as follows:

Appendix B to Part 1024--Illustrations of Requirements of RESPA

* * * * *
    12. Facts. A is a mortgage broker who provides origination 
services to submit a loan to a lender for approval. The mortgage 
broker charges the borrower a uniform fee for the total origination 
services, as well as a direct up-front charge for reimbursement of 
credit reporting, appraisal services, or similar charges.
    Comment. The mortgage broker's fee must be reflected in the Good 
Faith Estimate and on the HUD-1 Settlement Statement. Other charges 
which are paid for by the borrower and paid in advance are listed as 
P.O.C. on the HUD-1 Settlement Statement, and reflect the actual 
provider charge for such services.
* * * * *

0
7. In Appendix C to part 1024:
0
A. The second sentence of the first paragraph following the Appendix 
heading is amended by capitalizing ``Appendix'' where it appears.
0
B. Revise the paragraphs under Specific Instructions, Summary of your 
loan.
0
C. Under the heading Specific Instructions, Escrow account information, 
the paragraph is amended by adding at the end of the paragraph ``For 
reverse mortgage transactions where the lender will establish an 
arrangement to pay for such items as property taxes and homeowner's 
insurance through draws from the principal limit, the loan originator 
must indicate that an escrow account is included and the amount shown 
in this section must be disclosed as `N/A.' ''.
0
D. Under the heading Specific Instructions, Your Adjusted Origination 
Charges, Block 2, Your credit or charge (points) for the specific 
interest rate chosen, paragraph 3 is amended by removing the last 
sentence ``If there is no net payment (i.e., the credit or charge for 
the specific interest rate chosen is zero), the mortgage broker must 
insert `0' in Block 2 and may check either the box indicating there is 
a credit of `0' or the box indicating there is a charge of `0'.'' and 
replacing it with ``If there is no net payment (i.e., the credit or 
charge for the specific interest rate chosen is zero), the mortgage 
broker must insert `0' in Block 2 and may check either the box 
indicating there is a credit of `0' or the box indicating there is a 
charge of `0.' ''.
0
E. Under the heading Specific Instructions Your Adjusted Origination 
Charges, Block 7, Government recording charge, the first sentence is 
amended by capitalizing ``State'' where it appears.
0
F. Under the heading Specific Instructions, Your Adjusted Origination 
Charges, Block 8, Transfer taxes, the first sentence is amended by 
capitalizing ``State'' where it appears.
    The revisions read as follows:

Appendix C to Part 1024--Instructions for Completing Good Faith 
Estimate (GFE) Form

* * * * *
    ``Summary of your loan.''--In this section, for all loans the 
loan originator must fill in, where indicated:
    (i) The initial loan amount;
    (ii) The loan term; and
    (iii) The initial interest rate.
    For reverse mortgage transactions:
    (i) The initial loan amount disclosed on the GFE is the amount 
of the initial principal limit of the loan;
    (ii) The loan term is disclosed as ``N/A'' when the loan term is 
conditioned upon the occurrence of a specified event, such as the 
death of the borrower or the borrower no longer occupying the 
property for a certain period of time; and
    (iii) The initial interest rate is the interest rate indicated 
on the legal obligation.
    The loan originator must fill in the initial monthly amount owed 
for principal, interest, and any mortgage insurance. The amount 
shown must be the greater of: (1) The required monthly payment for 
principal and interest for the first regularly scheduled payment, 
plus any monthly mortgage

[[Page 80106]]

insurance payment; or (2) the accrued interest for the first 
regularly scheduled payment, plus any monthly mortgage insurance 
payment. For reverse mortgage transactions where there are no 
regular payment periods, the loan originator must disclose ``Not 
Applicable'' or ``N/A'' for the initial monthly amount owed for 
principal, interest, and any mortgage insurance.
    The loan originator must indicate whether the interest rate can 
rise, and, if it can, must insert the maximum rate to which it can 
rise over the life of the loan. The loan originator must also 
indicate the period of time after which the interest rate can first 
change.
    The loan originator must indicate whether the loan balance can 
rise even if the borrower makes payments on time, for example in the 
case of a loan with negative amortization. If it can, the loan 
originator must insert the maximum amount to which the loan balance 
can rise over the life of the loan. For Federal, State, local, or 
tribal housing programs that provide payment assistance, any 
repayment of such program assistance should be excluded from 
consideration in completing this item. If the loan balance will 
increase only because escrow items are being paid through the loan 
balance, the loan originator is not required to check the box 
indicating that the loan balance can rise. For reverse mortgage 
transactions, the loan originator must indicate that the loan 
balance can rise even if the borrower makes payments on time and the 
maximum amount to which the loan balance can rise must be disclosed 
as ``Unknown.''
    The loan originator must indicate whether the monthly amount 
owed for principal, interest, and any mortgage insurance can rise 
even if the borrower makes payments on time. If the monthly amount 
owed can rise even if the borrower makes payments on time, the loan 
originator must indicate the period of time after which the monthly 
amount owed can first change, the maximum amount to which the 
monthly amount owed can rise at the time of the first change, and 
the maximum amount to which the monthly amount owed can rise over 
the life of the loan. The amount used for the monthly amount owed 
must be the greater of: (1) The required monthly payment for 
principal and interest for that month, plus any monthly mortgage 
insurance payment; or (2) the accrued interest for that month, plus 
any monthly mortgage insurance payment. For reverse mortgage 
transactions, the loan originator must disclose that the monthly 
amount owed for principal, interest, and any mortgage insurance 
cannot rise.
    The loan originator must indicate whether the loan includes a 
prepayment penalty, and, if so, the maximum amount that it could be.
    The loan originator must indicate whether the loan requires a 
balloon payment and, if so, the amount of the payment and in how 
many years it will be due. Reverse mortgage transactions are not 
considered to be balloon transactions for the purposes of this 
disclosure on the GFE.
* * * * *

PART 1026--TRUTH IN LENDING (REGULATION Z)

0
8. The authority citation for part 1026 continues to read as follows:

    Authority: 12 U.S.C. 2601, 2603-2605, 2607, 2609, 2617, 5511, 
5512, 5532, 5581; 15 U.S.C. 1601 et seq.

Subpart A--General

0
9. Section 1026.1 is amended by revising paragraphs (b), (c)(5), 
(d)(5), and (e) to read as follows:


Sec.  1026.1  Authority, purpose, coverage, organization, enforcement, 
and liability.

* * * * *
    (b) Purpose. The purpose of this part is to promote the informed 
use of consumer credit by requiring disclosures about its terms and 
cost, to ensure that consumers are provided with greater and more 
timely information on the nature and costs of the residential real 
estate settlement process, and to effect certain changes in the 
settlement process for residential real estate that will result in more 
effective advance disclosure to home buyers and sellers of settlement 
costs. The regulation also includes substantive protections. It gives 
consumers the right to cancel certain credit transactions that involve 
a lien on a consumer's principal dwelling, regulates certain credit 
card practices, and provides a means for fair and timely resolution of 
credit billing disputes. The regulation does not generally govern 
charges for consumer credit, except that several provisions in subpart 
G set forth special rules addressing certain charges applicable to 
credit card accounts under an open-end (not home-secured) consumer 
credit plan. The regulation requires a maximum interest rate to be 
stated in variable-rate contracts secured by the consumer's dwelling. 
It also imposes limitations on home-equity plans that are subject to 
the requirements of Sec.  1026.40 and mortgages that are subject to the 
requirements of Sec.  1026.32. The regulation prohibits certain acts or 
practices in connection with credit secured by a dwelling in Sec.  
1026.36, and credit secured by a consumer's principal dwelling in Sec.  
1026.35. The regulation also regulates certain practices of creditors 
who extend private education loans as defined in Sec.  1026.46(b)(5). 
In addition, it imposes certain limitations on increases in costs for 
mortgage transactions subject to Sec.  1026.19(e) and (f).
    (c) * * *
    (5) Except in transactions subject to Sec.  1026.19(e) and (f), no 
person is required to provide the disclosures required by sections 
128(a)(16) through (19), 128(b)(4), 129C(f)(1), 129C(g)(2) and (3), 
129D(h), or 129D(j)(1)(A) of the Truth in Lending Act, section 4(c) of 
the Real Estate Settlement Procedures Act, or the disclosure required 
prior to settlement by section 129C(h) of the Truth in Lending Act. 
Except in transactions subject to Sec.  1026.20(e), no person is 
required to provide the disclosure required by section 129D(j)(1)(B) of 
the Truth in Lending Act. Except in transactions subject to Sec.  
1026.39(d)(5), no person becoming a creditor with respect to an 
existing residential mortgage loan is required to provide the 
disclosure required by section 129C(h) of the Truth in Lending Act.
    (d) * * *
    (5) Subpart E contains special rules for mortgage transactions. 
Section 1026.32 requires certain disclosures and provides limitations 
for closed-end credit transactions and open-end credit plans that have 
rates or fees above specified amounts or certain prepayment penalties. 
Section 1026.33 requires special disclosures, including the total 
annual loan cost rate, for reverse mortgage transactions. Section 
1026.34 prohibits specific acts and practices in connection with high-
cost mortgages, as defined in Sec.  1026.32(a). Section 1026.35 
prohibits specific acts and practices in connection with closed-end 
higher-priced mortgage loans, as defined in Sec.  1026.35(a). Section 
1026.36 prohibits specific acts and practices in connection with an 
extension of credit secured by a dwelling. Sections 1026.37 and 1026.38 
set forth special disclosure requirements for certain closed-end 
transactions secured by real property, as required by Sec.  1026.19(e) 
and (f).
* * * * *
    (e) Enforcement and liability. Section 108 of the Truth in Lending 
Act contains the administrative enforcement provisions for that Act. 
Sections 112, 113, 130, 131, and 134 contain provisions relating to 
liability for failure to comply with the requirements of the Truth in 
Lending Act and the regulation. Section 1204(c) of title XII of the 
Competitive Equality Banking Act of 1987, Public Law 100-86, 101 Stat. 
552, incorporates by reference administrative enforcement and civil 
liability provisions of sections 108 and 130 of the Truth in Lending 
Act. Section 19 of the Real Estate Settlement Procedures Act contains 
the administrative enforcement provisions for that Act.

0
10. Section 1026.2 is amended by revising paragraphs (a)(3), (a)(6), 
and (a)(25) to read as follows:

[[Page 80107]]

Sec.  1026.2  Definitions and rules of construction.

    (a) * * *
    (3)(i) Application means the submission of a consumer's financial 
information for the purposes of obtaining an extension of credit.
    (ii) For transactions subject to Sec.  1026.19(e), (f), or (g) of 
this part, an application consists of the submission of the consumer's 
name, the consumer's income, the consumer's social security number to 
obtain a credit report, the property address, an estimate of the value 
of the property, and the mortgage loan amount sought.
* * * * *
    (6) Business day means a day on which the creditor's offices are 
open to the public for carrying on substantially all of its business 
functions. However, for purposes of rescission under Sec. Sec.  1026.15 
and 1026.23, and for purposes of Sec. Sec.  1026.19(a)(1)(ii), 
1026.19(a)(2), 1026.19(e)(1)(iii)(B), 1026.19(e)(1)(iv), 
1026.19(e)(2)(i)(A), 1026.19(e)(4)(ii), 1026.19(f)(1)(ii), 
1026.19(f)(1)(iii), 1026.20(e)(5), 1026.31, and 1026.46(d)(4), the term 
means all calendar days except Sundays and the legal public holidays 
specified in 5 U.S.C. 6103(a), such as New Year's Day, the Birthday of 
Martin Luther King, Jr., Washington's Birthday, Memorial Day, 
Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving 
Day, and Christmas Day.
* * * * *
    (25) Security interest means an interest in property that secures 
performance of a consumer credit obligation and that is recognized by 
State or Federal law. It does not include incidental interests such as 
interests in proceeds, accessions, additions, fixtures, insurance 
proceeds (whether or not the creditor is a loss payee or beneficiary), 
premium rebates, or interests in after-acquired property. For purposes 
of disclosures under Sec. Sec.  1026.6, 1026.18, 1026.19(e) and (f), 
and 1026.38(l)(6), the term does not include an interest that arises 
solely by operation of law. However, for purposes of the right of 
rescission under Sec. Sec.  1026.15 and 1026.23, the term does include 
interests that arise solely by operation of law.
* * * * *

0
11. Section 1026.3 is amended by revising the introductory text and 
adding paragraph (h) to read as follows:


Sec.  1026.3  Exempt transactions.

    The following transactions are not subject to this part or, if the 
exemption is limited to specified provisions of this part, are not 
subject to those provisions:
* * * * *
    (h) Partial exemption for certain mortgage loans. The special 
disclosure requirements in Sec.  1026.19(e), (f), and (g) do not apply 
to a transaction that satisfies all of the following criteria:
    (1) The transaction is secured by a subordinate lien;
    (2) The transaction is for the purpose of:
    (i) Downpayment, closing costs, or other similar home buyer 
assistance, such as principal or interest subsidies;
    (ii) Property rehabilitation assistance;
    (iii) Energy efficiency assistance; or
    (iv) Foreclosure avoidance or prevention;
    (3) The credit contract does not require the payment of interest;
    (4) The credit contract provides that repayment of the amount of 
credit extended is:
    (i) Forgiven either incrementally or in whole, at a date certain, 
and subject only to specified ownership and occupancy conditions, such 
as a requirement that the consumer maintain the property as the 
consumer's principal dwelling for five years;
    (ii) Deferred for a minimum of 20 years after consummation of the 
transaction;
    (iii) Deferred until sale of the property securing the transaction; 
or
    (iv) Deferred until the property securing the transaction is no 
longer the principal dwelling of the consumer;
    (5) The total of costs payable by the consumer in connection with 
the transaction at consummation is less than one percent of the amount 
of credit extended and includes no charges other than:
    (i) Fees for recordation of security instruments, deeds, and 
similar documents;
    (ii) A bona fide and reasonable application fee; and
    (iii) A bona fide and reasonable fee for housing counseling 
services; and
    (6) The creditor complies with all other applicable requirements of 
this part in connection with the transaction, including without 
limitation the disclosures required by Sec.  1026.18.

Subpart C--Closed End Credit

0
12. Section 1026.17 is amended by adding introductory text to paragraph 
(a) and revising paragraphs (b), (f) introductory text, (g) 
introductory text, and (h) introductory text to read as follows:


Sec.  1026.17  General disclosure requirements.

    (a) Form of disclosures. Except for the disclosures required by 
Sec.  1026.19(e), (f), and (g):
* * * * *
    (b) Time of disclosures. The creditor shall make disclosures before 
consummation of the transaction. In certain residential mortgage 
transactions, special timing requirements are set forth in Sec.  
1026.19(a). In certain variable-rate transactions, special timing 
requirements for variable-rate disclosures are set forth in Sec. Sec.  
1026.19(b) and 1026.20(c) and (d). For private education loan 
disclosures made in compliance with Sec.  1026.47, special timing 
requirements are set forth in Sec.  1026.46(d). In certain transactions 
involving mail or telephone orders or a series of sales, the timing of 
disclosures may be delayed in accordance with paragraphs (g) and (h) of 
this section. This paragraph (b) does not apply to the disclosures 
required by Sec. Sec.  1026.19(e), (f), and (g) and 1026.20(e).
* * * * *
    (f) Early disclosures. Except for private education loan 
disclosures made in compliance with Sec.  1026.47, if disclosures 
required by this subpart are given before the date of consummation of a 
transaction and a subsequent event makes them inaccurate, the creditor 
shall disclose before consummation (subject to the provisions of Sec.  
1026.19(a)(2), (e), and (f)):
* * * * *
    (g) Mail or telephone orders--delay in disclosures. Except for 
private education loan disclosures made in compliance with Sec.  
1026.47 and mortgage disclosures made in compliance with Sec.  
1026.19(a) or (e), (f), and (g), if a creditor receives a purchase 
order or a request for an extension of credit by mail, telephone, or 
facsimile machine without face-to-face or direct telephone 
solicitation, the creditor may delay the disclosures until the due date 
of the first payment, if the following information for representative 
amounts or ranges of credit is made available in written form or in 
electronic form to the consumer or to the public before the actual 
purchase order or request:
* * * * *
    (h) Series of sales--delay in disclosures. Except for mortgage 
disclosures made in compliance with Sec.  1026.19(a) or (e), (f), and 
(g), if a credit sale is one of a series made under an agreement 
providing that subsequent sales may be added to an outstanding balance, 
the creditor may delay the required disclosures until the due date

[[Page 80108]]

of the first payment for the current sale, if the following two 
conditions are met:
* * * * *

0
13. Section 1026.18 is amended by revising the introductory text and 
paragraphs (k)(1) and (2), (s) introductory text, (s)(3)(i)(C), and 
(t)(1) to read as follows:


Sec.  1026.18  Content of disclosures.

    For each transaction other than a mortgage transaction subject to 
Sec.  1026.19(e) and (f), the creditor shall disclose the following 
information as applicable:
* * * * *
    (k) Prepayment. (1) When an obligation includes a finance charge 
computed from time to time by application of a rate to the unpaid 
principal balance, a statement indicating whether or not a charge may 
be imposed for paying all or part of a loan's principal balance before 
the date on which the principal is due.
    (2) When an obligation includes a finance charge other than the 
finance charge described in paragraph (k)(1) of this section, a 
statement indicating whether or not the consumer is entitled to a 
rebate of any finance charge if the obligation is prepaid in full or in 
part.
* * * * *
    (s) Interest rate and payment summary for mortgage transactions. 
For a closed-end transaction secured by real property or a dwelling, 
other than a transaction that is subject to Sec.  1026.19(e) and (f), 
the creditor shall disclose the following information about the 
interest rate and payments:
* * * * *
    (3) * * *
    (i) * * *
    (C) If an escrow account will be established, an estimate of the 
amount of taxes and insurance, including any mortgage insurance or any 
functional equivalent, payable with each periodic payment; and
* * * * *
    (t) ``No-guarantee-to-refinance'' statement. (1) Disclosure. For a 
closed-end transaction secured by real property or a dwelling, other 
than a transaction that is subject to Sec.  1026.19(e) and (f), the 
creditor shall disclose a statement that there is no guarantee the 
consumer can refinance the transaction to lower the interest rate or 
periodic payments.
* * * * *


0
14. Section 1026.19 is amended by revising paragraph (a)(1)(i) and 
(ii), removing paragraph (a)(5), and adding new paragraphs (e), (f), 
and (g), to read as follows:


Sec.  1026.19  Certain mortgage and variable-rate transactions.

    (a) Reverse mortgage transactions subject to RESPA. (1)(i) Time of 
disclosures. In a reverse mortgage transaction subject to both Sec.  
1026.33 and the Real Estate Settlement Procedures Act (12 U.S.C. 2601 
et seq.) that is secured by the consumer's dwelling, the creditor shall 
provide the consumer with good faith estimates of the disclosures 
required by Sec.  1026.18 and shall deliver or place them in the mail 
not later than the third business day after the creditor receives the 
consumer's written application.
    (ii) Imposition of fees. Except as provided in paragraph 
(a)(1)(iii) of this section, neither a creditor nor any other person 
may impose a fee on a consumer in connection with the consumer's 
application for a reverse mortgage transaction subject to paragraph 
(a)(1)(i) of this section before the consumer has received the 
disclosures required by paragraph (a)(1)(i) of this section. If the 
disclosures are mailed to the consumer, the consumer is considered to 
have received them three business days after they are mailed.
* * * * *
    (e) Mortgage loans secured by real property--early disclosures. (1) 
Provision of disclosures. (i) Creditor. In a closed-end consumer credit 
transaction secured by real property, other than a reverse mortgage 
subject to Sec.  1026.33, the creditor shall provide the consumer with 
good faith estimates of the disclosures in Sec.  1026.37.
    (ii) Mortgage broker. (A) If a mortgage broker receives a 
consumer's application, either the creditor or the mortgage broker 
shall provide a consumer with the disclosures required under paragraph 
(e)(1)(i) of this section in accordance with paragraph (e)(1)(iii) of 
this section. If the mortgage broker provides the required disclosures, 
the mortgage broker shall comply with all relevant requirements of this 
paragraph (e). The creditor shall ensure that such disclosures are 
provided in accordance with all requirements of this paragraph (e). 
Disclosures provided by a mortgage broker in accordance with the 
requirements of this paragraph (e) satisfy the creditor's obligation 
under this paragraph (e).
    (B) If a mortgage broker provides any disclosure under Sec.  
1026.19(e), the mortgage broker shall also comply with the requirements 
of Sec.  1026.25(c).
    (iii) Timing. (A) The creditor shall deliver or place in the mail 
the disclosures required under paragraph (e)(1)(i) of this section not 
later than the third business day after the creditor receives the 
consumer's application, as defined in Sec.  1026.2(a)(3).
    (B) Except as set forth in paragraph (e)(1)(iii)(C) of this 
section, the creditor shall deliver or place in the mail the 
disclosures required under paragraph (e)(1)(i) of this section not 
later than the seventh business day before consummation of the 
transaction.
    (C) For a transaction secured by a consumer's interest in a 
timeshare plan described in 11 U.S.C. 101(53D), paragraph 
(e)(1)(iii)(B) of this section does not apply.
    (iv) Receipt of early disclosures. If any disclosures required 
under paragraph (e)(1)(i) of this section are not provided to the 
consumer in person, the consumer is considered to have received the 
disclosures three business days after they are delivered or placed in 
the mail.
    (v) Consumer's waiver of waiting period before consummation. If the 
consumer determines that the extension of credit is needed to meet a 
bona fide personal financial emergency, the consumer may modify or 
waive the seven-business-day waiting period for early disclosures 
required under paragraph (e)(1)(iii)(B) of this section, after 
receiving the disclosures required under paragraph (e)(1)(i) of this 
section. To modify or waive the waiting period, the consumer shall give 
the creditor a dated written statement that describes the emergency, 
specifically modifies or waives the waiting period, and bears the 
signature of all the consumers who are primarily liable on the legal 
obligation. Printed forms for this purpose are prohibited.
    (vi) Shopping for settlement service providers. (A) Shopping 
permitted. A creditor permits a consumer to shop for a settlement 
service if the creditor permits the consumer to select the provider of 
that service, subject to reasonable requirements.
    (B) Disclosure of services. The creditor shall identify the 
settlement services for which the consumer is permitted to shop in the 
disclosures required under paragraph (e)(1)(i) of this section.
    (C) Written list of providers. If the consumer is permitted to shop 
for a settlement service, the creditor shall provide the consumer with 
a written list identifying available providers of that settlement 
service and stating that the consumer may choose a different provider 
for that service. The creditor must identify at least one available 
provider for each settlement service for which the consumer is 
permitted to shop. The creditor shall provide this written list of 
settlement service providers separately from the disclosures required 
by paragraph (e)(1)(i) of this section but in accordance

[[Page 80109]]

with the timing requirements in paragraph (e)(1)(iii) of this section.
    (2) Predisclosure activity. (i) Imposition of fees on consumer. (A) 
Fee restriction. Except as provided in paragraph (e)(2)(i)(B) of this 
section, neither a creditor nor any other person may impose a fee on a 
consumer in connection with the consumer's application for a mortgage 
transaction subject to paragraph (e)(1)(i) of this section before the 
consumer has received the disclosures required under paragraph 
(e)(1)(i) of this section and indicated to the creditor an intent to 
proceed with the transaction described by those disclosures. A consumer 
may indicate an intent to proceed with a transaction in any manner the 
consumer chooses, unless a particular manner of communication is 
required by the creditor. The creditor must document this communication 
to satisfy the requirements of Sec.  1026.25.
    (B) Exception to fee restriction. A creditor or other person may 
impose a bona fide and reasonable fee for obtaining the consumer's 
credit report before the consumer has received the disclosures required 
under paragraph (e)(1)(i) of this section.
    (ii) Written information provided to consumer. If a creditor or 
other person provides a consumer with a written estimate of terms or 
costs specific to that consumer before the consumer receives the 
disclosures required under paragraph (e)(1)(i) of this section, the 
creditor or such person shall clearly and conspicuously state at the 
top of the front of the first page of the estimate in a font size that 
is no smaller than 12-point font: ``Your actual rate, payment, and 
costs could be higher. Get an official Loan Estimate before choosing a 
loan.'' The written estimate of terms or costs may not be made with 
headings, content, and format substantially similar to form H-24 or H-
25 of appendix H to this part.
    (iii) Verification of information. The creditor or other person 
shall not require a consumer to submit documents verifying information 
related to the consumer's application before providing the disclosures 
required by paragraph (e)(1)(i) of this section.
    (3) Good faith determination for estimates of closing costs. (i) 
General rule. An estimated closing cost disclosed pursuant to paragraph 
(e) of this section is in good faith if the charge paid by or imposed 
on the consumer does not exceed the amount originally disclosed under 
paragraph (e)(1)(i) of this section, except as otherwise provided in 
paragraphs (e)(3)(ii) through (iv) of this section.
    (ii) Limited increases permitted for certain charges. An estimate 
of a charge for a third-party service or a recording fee is in good 
faith if:
    (A) The aggregate amount of charges for third-party services and 
recording fees paid by or imposed on the consumer does not exceed the 
aggregate amount of such charges disclosed under paragraph (e)(1)(i) of 
this section by more than 10 percent;
    (B) The charge for the third-party service is not paid to the 
creditor or an affiliate of the creditor; and
    (C) The creditor permits the consumer to shop for the third-party 
service, consistent with paragraph (e)(1)(vi) of this section.
    (iii) Variations permitted for certain charges. An estimate of the 
following charges is in good faith if it is consistent with the best 
information reasonably available to the creditor at the time it is 
disclosed, regardless of whether the amount paid by the consumer 
exceeds the amount disclosed under paragraph (e)(1)(i) of this section:
    (A) Prepaid interest;
    (B) Property insurance premiums;
    (C) Amounts placed into an escrow, impound, reserve, or similar 
account;
    (D) Charges paid to third-party service providers selected by the 
consumer consistent with paragraph (e)(1)(vi)(A) of this section that 
are not on the list provided pursuant to paragraph (e)(1)(vi)(C) of 
this section; and
    (E) Charges paid for third-party services not required by the 
creditor. These charges may be paid to affiliates of the creditor.
    (iv) Revised estimates. For the purpose of determining good faith 
under paragraph (e)(3)(i) and (ii) of this section, a creditor may use 
a revised estimate of a charge instead of the estimate of the charge 
originally disclosed under paragraph (e)(1)(i) of this section if the 
revision is due to any of the following reasons:
    (A) Changed circumstance affecting settlement charges. Changed 
circumstances cause the estimated charges to increase or, in the case 
of estimated charges identified in paragraph (e)(3)(ii) of this 
section, cause the aggregate amount of such charges to increase by more 
than 10 percent. For purposes of this paragraph, ``changed 
circumstance'' means:
    (1) An extraordinary event beyond the control of any interested 
party or other unexpected event specific to the consumer or 
transaction;
    (2) Information specific to the consumer or transaction that the 
creditor relied upon when providing the disclosures required under 
paragraph (e)(1)(i) of this section and that was inaccurate or changed 
after the disclosures were provided; or
    (3) New information specific to the consumer or transaction that 
the creditor did not rely on when providing the original disclosures 
required under paragraph (e)(1)(i) of this section.
    (B) Changed circumstance affecting eligibility. The consumer is 
ineligible for an estimated charge previously disclosed because a 
changed circumstance, as defined under paragraph (e)(3)(iv)(A) of this 
section, affected the consumer's creditworthiness or the value of the 
security for the loan.
    (C) Revisions requested by the consumer. The consumer requests 
revisions to the credit terms or the settlement that cause an estimated 
charge to increase.
    (D) Interest rate dependent charges. The points or lender credits 
change because the interest rate was not locked when the disclosures 
required under paragraph (e)(1)(i) of this section were provided. On 
the date the interest rate is locked, the creditor shall provide a 
revised version of the disclosures required under paragraph (e)(1)(i) 
of this section to the consumer with the revised interest rate, the 
points disclosed pursuant to Sec.  1026.37(f)(1), lender credits, and 
any other interest rate dependent charges and terms.
    (E) Expiration. The consumer indicates an intent to proceed with 
the transaction more than ten business days after the disclosures 
required under paragraph (e)(1)(i) of this section are provided 
pursuant to paragraph (e)(1)(iii) of this section.
    (F) Delayed settlement date on a construction loan. In transactions 
involving new construction, where the creditor reasonably expects that 
settlement will occur more than 60 days after the disclosures required 
under paragraph (e)(1)(i) of this section are provided pursuant to 
paragraph (e)(1)(iii) of this section, the creditor may provide revised 
disclosures to the consumer if the original disclosures required under 
paragraph (e)(1)(i) of this section state clearly and conspicuously 
that at any time prior to 60 days before consummation, the creditor may 
issue revised disclosures. If no such statement is provided, the 
creditor may not issue revised disclosures, except as otherwise 
provided in paragraph (f) of this section.
    (4) Provision and receipt of revised disclosures. (i) General rule. 
Subject to the requirements of paragraph (e)(4)(ii) of this section, if 
a creditor uses a revised estimate pursuant to paragraph (e)(3)(iv) of 
this section for the purpose of determining good faith under paragraphs 
(e)(3)(i) and (ii) of this

[[Page 80110]]

section, the creditor shall provide a revised version of the 
disclosures required under paragraph (e)(1)(i) of this section 
reflecting the revised estimate within three business days of receiving 
information sufficient to establish that one of the reasons for 
revision provided under paragraphs (e)(3)(iv)(A) through (C), (E) and 
(F) of this section applies.
    (ii) Relationship to disclosures required under Sec.  
1026.19(f)(1)(i). The creditor shall not provide a revised version of 
the disclosures required under paragraph (e)(1)(i) of this section on 
or after the date on which the creditor provides the disclosures 
required under paragraph (f)(1)(i) of this section. The consumer must 
receive a revised version of the disclosures required under paragraph 
(e)(1)(i) of this section not later than four business days prior to 
consummation. If the revised version of the disclosures required under 
paragraph (e)(1)(i) of this section is not provided to the consumer in 
person, the consumer is considered to have received such version three 
business days after the creditor delivers or places such version in the 
mail.
    (f) Mortgage loans secured by real property--final disclosures. (1) 
Provision of disclosures. (i) Scope. In a closed-end consumer credit 
transaction secured by real property, other than a reverse mortgage 
subject to Sec.  1026.33, the creditor shall provide the consumer with 
the disclosures in Sec.  1026.38 reflecting the actual terms of the 
transaction.
    (ii) Timing. (A) In general. Except as provided in paragraphs 
(f)(1)(ii)(B), (f)(2)(i), (f)(2)(iii), (f)(2)(iv), and (f)(2)(v) of 
this section, the creditor shall ensure that the consumer receives the 
disclosures required under paragraph (f)(1)(i) of this section no later 
than three business days before consummation.
    (B) Timeshares. For transactions secured by a consumer's interest 
in a timeshare plan described in 11 U.S.C. 101(53D), the creditor shall 
ensure that the consumer receives the disclosures required under 
paragraph (f)(1)(i) of this section no later than consummation.
    (iii) Receipt of disclosures. If any disclosures required under 
paragraph (f)(1)(i) of this section are not provided to the consumer in 
person, the consumer is considered to have received the disclosures 
three business days after they are delivered or placed in the mail.
    (iv) Consumer's waiver of waiting period before consummation. If 
the consumer determines that the extension of credit is needed to meet 
a bona fide personal financial emergency, the consumer may modify or 
waive the three-business-day waiting period under paragraph 
(f)(1)(ii)(A) or (f)(2)(ii) of this section, after receiving the 
disclosures required under paragraph (f)(1)(i) of this section. To 
modify or waive the waiting period, the consumer shall give the 
creditor a dated written statement that describes the emergency, 
specifically modifies or waives the waiting period, and bears the 
signature of all consumers who are primarily liable on the legal 
obligation. Printed forms for this purpose are prohibited.
    (v) Settlement agent. A settlement agent may provide a consumer 
with the disclosures required under paragraph (f)(1)(i) of this 
section, provided the settlement agent complies with all relevant 
requirements of this paragraph (f). The creditor shall ensure that such 
disclosures are provided in accordance with all requirements of this 
paragraph (f). Disclosures provided by a settlement agent in accordance 
with the requirements of this paragraph (f) satisfy the creditor's 
obligation under this paragraph (f).
    (2) Subsequent changes. (i) Changes before consummation not 
requiring a new waiting period. Except as provided in paragraph 
(f)(2)(ii), if the disclosures provided under paragraph (f)(1)(i) of 
this section become inaccurate before consummation, the creditor shall 
provide corrected disclosures reflecting any changed terms to the 
consumer so that the consumer receives the corrected disclosures at or 
before consummation. Notwithstanding the requirement to provide 
corrected disclosures at or before consummation, the creditor shall 
permit the consumer to inspect the disclosures provided under this 
paragraph, completed to set forth those items that are known to the 
creditor at the time of inspection, during the business day immediately 
preceding consummation, but the creditor may omit from inspection items 
related only to the seller's transaction.
    (ii) Changes before consummation requiring a new waiting period. If 
one of the following disclosures provided under paragraph (f)(1)(i) of 
this section becomes inaccurate in the following manner before 
consummation, the creditor shall ensure that the consumer receives 
corrected disclosures containing all changed terms in accordance with 
the requirements of paragraph (f)(1)(ii)(A) of this section:
    (A) The annual percentage rate disclosed under Sec.  1026.38(o)(4) 
becomes inaccurate, as defined in Sec.  1026.22.
    (B) The loan product is changed, causing the information disclosed 
under Sec.  1026.38(a)(5)(iii) to become inaccurate.
    (C) A prepayment penalty is added, causing the statement regarding 
a prepayment penalty required under Sec.  1026.38(b) to become 
inaccurate.
    (iii) Changes due to events occurring after consummation. If during 
the 30-day period following consummation, an event in connection with 
the settlement of the transaction occurs that causes the disclosures 
required under paragraph (f)(1)(i) of this section to become 
inaccurate, and such inaccuracy results in a change to an amount 
actually paid by the consumer from that amount disclosed under 
paragraph (f)(1)(i) of this section, the creditor shall deliver or 
place in the mail corrected disclosures not later than 30 days after 
receiving information sufficient to establish that such event has 
occurred.
    (iv) Changes due to clerical errors. A creditor does not violate 
paragraph (f)(1)(i) of this section if the disclosures provided under 
paragraph (f)(1)(i) contain non-numeric clerical errors, provided the 
creditor delivers or places in the mail corrected disclosures no later 
than 60 days after consummation.
    (v) Refunds related to the good faith analysis. If amounts paid by 
the consumer exceed the amounts specified under paragraph (e)(3)(i) or 
(ii) of this section, the creditor complies with paragraph (e)(1)(i) of 
this section if the creditor refunds the excess to the consumer no 
later than 60 days after consummation, and the creditor complies with 
paragraph (f)(1)(i) of this section if the creditor delivers or places 
in the mail corrected disclosures that reflect such refund no later 
than 60 days after consummation.
    (3) Charges disclosed. (i) Actual charge. The amount imposed upon 
the consumer for any settlement service shall not exceed the amount 
actually received by the settlement service provider for that service, 
except as otherwise provided in paragraph (f)(3)(ii) of this section.
    (ii) Average charge. A creditor or settlement service provider may 
charge a consumer or seller the average charge for a settlement service 
if the following conditions are satisfied:
    (A) The average charge is no more than the average amount paid for 
that service by or on behalf of all consumers and sellers for a class 
of transactions;
    (B) The creditor or settlement service provider defines the class 
of transactions based on an appropriate period of time, geographic 
area, and type of loan;
    (C) The creditor or settlement service provider uses the same 
average charge for every transaction within the defined class; and
    (D) The creditor or settlement service provider does not use an 
average charge:
    (1) For any type of insurance;
    (2) For any charge based on the loan amount or property value; or

[[Page 80111]]

    (3) If doing so is otherwise prohibited by law.
    (4) Transactions involving a seller. (i) Provision to seller. In a 
closed-end consumer credit transaction secured by real property that 
involves a seller, other than a reverse mortgage subject to Sec.  
1026.33, the settlement agent shall provide the seller with the 
disclosures in Sec.  1026.38 that relate to the seller's transaction 
reflecting the actual terms of the seller's transaction.
    (ii) Timing. The settlement agent shall provide the disclosures 
required under paragraph (f)(4)(i) of this section no later than the 
day of consummation. If during the 30-day period following 
consummation, an event in connection with the settlement of the 
transaction occurs that causes disclosures required under paragraph 
(f)(4)(i) of this section to become inaccurate, and such inaccuracy 
results in a change to the amount actually paid by the seller from that 
amount disclosed under paragraph (f)(4)(i) of this section, the 
settlement agent shall deliver or place in the mail corrected 
disclosures not later than 30 days after receiving information 
sufficient to establish that such event has occurred.
    (iii) Charges disclosed. The amount imposed on the seller for any 
settlement service shall not exceed the amount actually received by the 
service provider for that service, except as otherwise provided in 
paragraph (f)(3)(ii) of this section.
    (iv) Creditor's copy. When the consumer's and seller's disclosures 
under this paragraph (f) are provided on separate documents, as 
permitted under Sec.  1026.38(t)(5), the settlement agent shall provide 
to the creditor (if the creditor is not the settlement agent) a copy of 
the disclosures provided to the seller under paragraph (f)(4)(i) of 
this section.
    (5) No fee. No fee may be imposed on any person, as a part of 
settlement costs or otherwise, by a creditor or by a servicer (as that 
term is defined under 12 U.S.C. 2605(i)(2)) for the preparation or 
delivery of the disclosures required under paragraph (f)(1)(i) of this 
section.
    (g) Special information booklet at time of application. (1) 
Creditor to provide special information booklet. Except as provided in 
paragraphs (g)(1)(ii) and (iii) of this section, the creditor shall 
provide a copy of the special information booklet (required pursuant to 
section 5 of the Real Estate Settlement Procedures Act (12 U.S.C. 2604) 
to help consumers applying for federally related mortgage loans 
understand the nature and cost of real estate settlement services) to a 
consumer who applies for a consumer credit transaction secured by real 
property.
    (i) The creditor shall deliver or place in the mail the special 
information booklet not later than three business days after the 
consumer's application is received. However, if the creditor denies the 
consumer's application before the end of the three-business-day period, 
the creditor need not provide the booklet. If a consumer uses a 
mortgage broker, the mortgage broker shall provide the special 
information booklet and the creditor need not do so.
    (ii) In the case of a home equity line of credit subject to Sec.  
1026.40, a creditor or mortgage broker that provides the consumer with 
a copy of the brochure entitled ``When Your Home is On the Line: What 
You Should Know About Home Equity Lines of Credit,'' or any successor 
brochure issued by the Bureau, is deemed to be in compliance with this 
section.
    (iii) The creditor or mortgage broker need not provide the booklet 
to the consumer for a consumer credit transaction secured by real 
property, the purpose of which is not the purchase of a one-to-four 
family residential property, including, but not limited to, the 
following:
    (A) Refinancing transactions;
    (B) Closed-end loans secured by a subordinate lien; and
    (C) Reverse mortgages.
    (2) Permissible changes. Creditors may not make changes to, 
deletions from, or additions to the special information booklet other 
than the changes specified in paragraphs (g)(2)(i) through (iv) of this 
section.
    (i) In the ``Complaints'' section of the booklet, ``the Bureau of 
Consumer Financial Protection'' may be substituted for ``HUD's Office 
of RESPA'' and ``the RESPA office.''
    (ii) In the ``Avoiding Foreclosure'' section of the booklet, it is 
permissible to inform homeowners that they may find information on and 
assistance in avoiding foreclosures at http://www.consumerfinance.gov. 
The reference to the HUD Web site, http://www.hud.gov/foreclosure/, in 
the ``Avoiding Foreclosure'' section of the booklet shall not be 
deleted.
    (iii) In the ``No Discrimination'' section of the appendix to the 
booklet, ``the Bureau of Consumer Financial Protection'' may be 
substituted for the reference to the ``Board of Governors of the 
Federal Reserve System.'' In the Contact Information section of the 
appendix to the booklet, the following contact information for the 
Bureau may be added: ``Bureau of Consumer Financial Protection, 1700 G 
Street NW., Washington, DC 20552; www.consumerfinance.gov/learnmore.'' 
The contact information for HUD's Office of RESPA and Interstate Land 
Sales may be removed from the ``Contact Information'' section of the 
appendix to the booklet.
    (iv) The cover of the booklet may be in any form and may contain 
any drawings, pictures or artwork, provided that the title appearing on 
the cover shall not be changed. Names, addresses, and telephone numbers 
of the creditor or others and similar information may appear on the 
cover, but no discussion of the matters covered in the booklet shall 
appear on the cover. References to HUD on the cover of the booklet may 
be changed to references to the Bureau.


0
15. Section 1026.20 is amended by adding paragraph (e) to read as 
follows:


Sec.  1026.20  Disclosure requirements regarding post-consummation 
events.

* * * * *
    (e) Escrow account cancellation notice for certain mortgage 
transactions--(1) Scope. In a closed-end consumer credit transaction 
secured by a first lien on real property or a dwelling, other than a 
reverse mortgage subject to Sec.  1026.33, for which an escrow account 
was established in connection with the transaction and will be 
cancelled, the creditor or servicer shall disclose the information 
specified in paragraph (e)(2) of this section in accordance with the 
form requirements in paragraph (e)(4) of this section, and the timing 
requirements in paragraph (e)(5) of this section. For purposes of this 
paragraph (e), the term ``escrow account'' has the same meaning as 
under 12 CFR 1024.17(b), and the term ``servicer'' has the same meaning 
as under 12 CFR 1024.2(b).
    (2) Content requirements. If an escrow account was established in 
connection with a transaction subject to this paragraph (e) and the 
escrow account will be cancelled, the creditor or servicer shall 
clearly and conspicuously disclose, under the heading ``Escrow Closing 
Notice,'' the following information:
    (i) A statement informing the consumer of the date on which the 
consumer will no longer have an escrow account; a statement that an 
escrow account may also be called an impound or trust account; a 
statement of the reason why the escrow account will be closed; a 
statement that without an escrow account, the consumer must pay all 
property costs, such as taxes and homeowner's insurance, directly, 
possibly in one or two large payments a year; and a table, titled 
``Cost to you,'' that contains an itemization of the amount of any fee 
the creditor or

[[Page 80112]]

servicer imposes on the consumer in connection with the closure of the 
consumer's escrow account, labeled ``Escrow Closing Fee,'' and a 
statement that the fee is for closing the escrow account.
    (ii) Under the reference ``In the future'':
    (A) A statement of the consequences if the consumer fails to pay 
property costs, including the actions that a State or local government 
may take if property taxes are not paid and the actions the creditor or 
servicer may take if the consumer does not pay some or all property 
costs, such as adding amounts to the loan balance, adding an escrow 
account to the loan, or purchasing a property insurance policy on the 
consumer's behalf that may be more expensive and provide fewer benefits 
than a policy that the consumer could obtain directly;
    (B) A statement with a telephone number that the consumer can use 
to request additional information about the cancellation of the escrow 
account;
    (C) A statement of whether the creditor or servicer offers the 
option of keeping the escrow account open and, as applicable, a 
telephone number the consumer can use to request that the account be 
kept open; and
    (D) A statement of whether there is a cut-off date by which the 
consumer can request that the account be kept open.
    (3) Optional information. The creditor or servicer may, at its 
option, include its name or logo, the consumer's name, phone number, 
mailing address and property address, the issue date of the notice, the 
loan number, or the consumer's account number on the notice required by 
this paragraph (e). Except for the name and logo of the creditor or 
servicer, the information described in this paragraph may be placed 
between the heading required by paragraph (e)(2) of this section and 
the disclosures required by paragraphs (e)(2)(i) and (ii) of this 
section. The name and logo may be placed above the heading required by 
paragraph (e)(2) of this section.
    (4) Form of disclosures. The disclosures required by paragraph 
(e)(2) of this section shall be provided in a minimum 10-point font, 
grouped together on the front side of a one-page document, separate 
from all other materials, with the headings, content, order, and format 
substantially similar to model form H-29 in appendix H to this part. 
The disclosure of the heading required by paragraph (e)(2) of this 
section shall be more conspicuous than, and shall precede, the other 
disclosures required by paragraph (e)(2) of this section.
    (5) Timing--(i) Cancellation upon consumer's request. If the 
creditor or servicer cancels the escrow account at the consumer's 
request, the creditor or servicer shall ensure that the consumer 
receives the disclosures required by paragraph (e)(2) of this section 
no later than three business days before the closure of the consumer's 
escrow account.
    (ii) Cancellations other than upon the consumer's request. If the 
creditor or servicer cancels the escrow account and the cancellation is 
not at the consumer's request, the creditor or servicer shall ensure 
that the consumer receives the disclosures required by paragraph (e)(2) 
of this section no later than 30 business days before the closure of 
the consumer's escrow account.
    (iii) Receipt of disclosure. If the disclosures required by 
paragraph (e)(2) of this section are not provided to the consumer in 
person, the consumer is considered to have received the disclosures 
three business days after they are delivered or placed in the mail.


0
16. Section 1026.22 is amended by revising paragraphs (a)(4) and (5) to 
read as follows:


Sec.  1026.22  Determination of annual percentage rate.

    (a) * * *
    (4) Mortgage loans. If the annual percentage rate disclosed in a 
transaction secured by real property or a dwelling varies from the 
actual rate determined in accordance with paragraph (a)(1) of this 
section, in addition to the tolerances applicable under paragraphs 
(a)(2) and (3) of this section, the disclosed annual percentage rate 
shall also be considered accurate if:
    (i) The rate results from the disclosed finance charge; and
    (ii)(A) The disclosed finance charge would be considered accurate 
under Sec.  1026.18(d)(1) or Sec.  1026.38(o)(2), as applicable; or
    (B) For purposes of rescission, if the disclosed finance charge 
would be considered accurate under Sec.  1026.23(g) or (h), whichever 
applies.
    (5) Additional tolerance for mortgage loans. In a transaction 
secured by real property or a dwelling, in addition to the tolerances 
applicable under paragraphs (a)(2) and (3) of this section, if the 
disclosed finance charge is calculated incorrectly but is considered 
accurate under Sec.  1026.18(d)(1) or Sec.  1026.38(o)(2), as 
applicable, or Sec.  1026.23(g) or (h), the disclosed annual percentage 
rate shall be considered accurate:
* * * * *

Subpart D--Miscellaneous

0
17. Section 1026.25 is amended by revising paragraph (a) and adding 
paragraph (c)(1) to read as follows:


Sec.  1026.25  Record retention.

    (a) General rule. A creditor shall retain evidence of compliance 
with this part (other than advertising requirements under Sec. Sec.  
1026.16 and 1026.24, and other than the requirements under Sec.  
1026.19(e) and (f)) for two years after the date disclosures are 
required to be made or action is required to be taken. The 
administrative agencies responsible for enforcing the regulation may 
require creditors under their jurisdictions to retain records for a 
longer period if necessary to carry out their enforcement 
responsibilities under section 108 of the Act.
* * * * *
    (c) Records related to certain requirements for mortgage loans--(1) 
Records related to requirements for loans secured by real property--(i) 
General rule. Except as provided under paragraph (c)(1)(ii) of this 
section, a creditor shall retain evidence of compliance with the 
requirements of Sec.  1026.19(e) and (f) for three years after the 
later of the date of consummation, the date disclosures are required to 
be made, or the date the action is required to be taken.
    (ii) Closing disclosures. (A) A creditor shall retain each 
completed disclosure required under Sec.  1026.19(f)(1)(i) or 
(f)(4)(i), and all documents related to such disclosures, for five 
years after consummation, notwithstanding paragraph (c)(1)(ii)(B) of 
this section.
    (B) If a creditor sells, transfers, or otherwise disposes of its 
interest in a mortgage loan subject to Sec.  1026.19(f) and does not 
service the mortgage loan, the creditor shall provide a copy of the 
disclosures required under Sec.  1026.19(f)(1)(i) or (f)(4)(i) to the 
owner or servicer of the mortgage as a part of the transfer of the loan 
file. Such owner or servicer shall retain such disclosures for the 
remainder of the five-year period described under paragraph 
(c)(1)(ii)(A) of this section.
    (C) The Bureau shall have the right to require provision of copies 
of records related to the disclosures required under Sec.  
1026.19(f)(1)(i) and (f)(4)(i).
* * * * *

0
18. Section 1026.28 is amended by revising paragraph (a)(1) to read as 
follows:


Sec.  1026.28  Effect on state laws.

    (a) Inconsistent disclosure requirements. (1) Except as provided in 
paragraph (d) of this section, State law

[[Page 80113]]

requirements that are inconsistent with the requirements contained in 
chapter 1 (General Provisions), chapter 2 (Credit Transactions), or 
chapter 3 (Credit Advertising) of the Act and the implementing 
provisions of this part are preempted to the extent of the 
inconsistency. A State law is inconsistent if it requires a creditor to 
make disclosures or take actions that contradict the requirements of 
the Federal law. A State law is contradictory if it requires the use of 
the same term to represent a different amount or a different meaning 
than the Federal law, or if it requires the use of a term different 
from that required in the Federal law to describe the same item. A 
creditor, State, or other interested party may request the Bureau to 
determine whether a State law requirement is inconsistent. After the 
Bureau determines that a State law is inconsistent, a creditor may not 
make disclosures using the inconsistent term or form. A determination 
as to whether a State law is inconsistent with the requirements of 
sections 4 and 5 of RESPA (other than the RESPA section 5(c) 
requirements regarding provision of a list of certified homeownership 
counselors) and Sec. Sec.  1026.19(e) and (f), 1026.37, and 1026.38 
shall be made in accordance with this section and not 12 CFR 1024.13.
* * * * *

Subpart E--Special Rules for Certain Home Mortgage Transactions

* * * * *

0
19. Section 1026.37 is added to read as follows:


Sec.  1026.37  Content of disclosures for certain mortgage transactions 
(Loan Estimate).

    For each transaction subject to Sec.  1026.19(e), the creditor 
shall disclose the information in this section:
    (a) General information--(1) Form title. The title of the form, 
``Loan Estimate,'' using that term.
    (2) Form purpose. The statement, ``Save this Loan Estimate to 
compare with your Closing Disclosure.''
    (3) Creditor. The name and address of the creditor making the 
disclosures.
    (4) Date issued. The date the disclosures are mailed or delivered 
to the consumer by the creditor, labeled ``Date Issued.''
    (5) Applicants. The name and mailing address of the consumer(s) 
applying for the credit, labeled ``Applicants.''
    (6) Property. The address including the zip code of the property 
that secures or will secure the transaction, or if the address is 
unavailable, the location of such property including a zip code, 
labeled ``Property.''
    (7) Sale price. (i) For transactions that involve a seller, the 
contract sale price of the property identified in paragraph (a)(6) of 
this section, labeled ``Sale Price.''
    (ii) For transactions that do not involve a seller, the estimated 
value of the property identified in paragraph (a)(6), labeled ``Prop. 
Value.''
    (8) Loan term. The term to maturity of the credit transaction, 
stated in years or months, or both, as applicable, labeled ``Loan 
Term.''
    (9) Purpose. The consumer's intended use for the credit, labeled 
``Purpose,'' using one of the following terms:
    (i) Purchase. If the credit is to finance the acquisition of the 
property identified in paragraph (a)(6) of this section, the creditor 
shall disclose that the loan is for a ``Purchase.''
    (ii) Refinance. If the credit is not for the purpose described in 
paragraph (a)(9)(i) of this section, and if the credit will be used to 
refinance an existing obligation, as defined in Sec.  1026.20(a) (but 
without regard to whether the creditor is the original creditor or a 
holder or servicer of the original obligation), that is secured by the 
property identified in paragraph (a)(6) of this section, the creditor 
shall disclose that the loan is for a ``Refinance.''
    (iii) Construction. If the credit is not for one of the purposes 
described in paragraphs (a)(9)(i) or (ii) of this section and the 
credit will be used to finance the initial construction of a dwelling 
on the property identified in paragraph (a)(6) of this section, the 
creditor shall disclose that the loan is for ``Construction.''
    (iv) Home equity loan. If the credit is not for one of the purposes 
described in paragraphs (a)(9)(i) through (iii) of this section, the 
creditor shall disclose that the loan is a ``Home Equity Loan.''
    (10) Product. A description of the loan product, labeled 
``Product.''
    (i) The description of the loan product shall include one of the 
following terms:
    (A) Adjustable rate. If the interest rate may increase after 
consummation, but the rates that will apply or the periods for which 
they will apply are not known at consummation, the creditor shall 
disclose the loan product as an ``Adjustable Rate.''
    (B) Step rate. If the interest rate will change after consummation, 
and the rates that will apply and the periods for which they will apply 
are known at consummation, the creditor shall disclose the loan product 
as a ``Step Rate.''
    (C) Fixed rate. If the loan product is not an Adjustable Rate or a 
Step Rate, as described in paragraphs (a)(10)(i)(A) and (B) of this 
section, respectively, the creditor shall disclose the loan product as 
a ``Fixed Rate.''
    (ii) The description of the loan product shall include the features 
that may change the periodic payment using the following terms, subject 
to paragraph (a)(10)(iii) of this section, as applicable:
    (A) Negative amortization. If the principal balance may increase 
due to the addition of accrued interest to the principal balance, the 
creditor shall disclose that the loan product has a ``Negative 
Amortization'' feature.
    (B) Interest only. If one or more regular periodic payments may be 
applied only to interest accrued and not to the loan principal, the 
creditor shall disclose that the loan product has an ``Interest Only'' 
feature.
    (C) Step payment. If scheduled variations in regular periodic 
payment amounts occur that are not caused by changes to the interest 
rate during the loan term, the creditor shall disclose that the loan 
product has a ``Step Payment'' feature.
    (D) Balloon payment. If the terms of the legal obligation include a 
``balloon payment,'' as that term is defined in paragraph (b)(5) of 
this section, the creditor shall disclose that the loan has a ``Balloon 
Payment'' feature.
    (E) Seasonal payment. If the terms of the legal obligation 
expressly provide that regular periodic payments are not scheduled 
between specified unit-periods on a regular basis, the creditor shall 
disclose that the loan product has a ``Seasonal Payment'' feature.
    (iii) The disclosure of a loan feature under paragraph (a)(10)(ii) 
of this section shall precede the disclosure of the loan product under 
paragraph (a)(10)(i) of this section. If a transaction has more than 
one of the loan features described in paragraph (a)(10)(ii) of this 
section, the creditor shall disclose only the first applicable feature 
in the order the features are listed in paragraph (a)(10)(ii) of this 
section.
    (iv) The disclosures required by paragraphs (a)(10)(i)(A) and (B), 
and (a)(10)(ii)(A) through (D) of this section must each be preceded by 
the duration of any introductory rate or payment period, and the first 
adjustment period, as applicable.
    (11) Loan type. The type of loan, labeled ``Loan Type,'' offered to 
the consumer using one of the following terms, as applicable:
    (i) Conventional. If the loan is not guaranteed or insured by a 
Federal or State government agency, the creditor shall disclose that 
the loan is a ``Conventional.''

[[Page 80114]]

    (ii) FHA. If the loan is insured by the Federal Housing 
Administration, the creditor shall disclose that the loan is an 
``FHA.''
    (iii) VA. If the loan is guaranteed by the U.S. Department of 
Veterans Affairs, the creditor shall disclose that the loan is a 
``VA.''
    (iv) Other. For federally-insured or guaranteed loans other than 
those described in paragraphs (a)(11)(ii) and (iii) of this section, 
and for loans insured or guaranteed by a State agency, the creditor 
shall disclose the loan type as ``Other,'' and provide a brief 
description of the loan type.
    (12) Loan identification number (Loan ID #). A number that may be 
used by the creditor, consumer, and other parties to identify the 
transaction, labeled ``Loan ID .''
    (13) Rate lock. A statement of whether the interest rate disclosed 
pursuant to paragraph (b)(2) of this section is locked for a specific 
period of time, labeled ``Rate Lock.''
    (i) For transactions in which the interest rate is locked for a 
specific period of time, the creditor must provide the date and time 
(including the applicable time zone) when that period ends.
    (ii) The ``Rate Lock'' statement required by this paragraph (a)(13) 
shall be accompanied by a statement that the interest rate, any points, 
and any lender credits may change unless the interest rate has been 
locked, and the date and time (including the applicable time zone) at 
which estimated closing costs expire.
    (b) Loan terms. A separate table under the heading ``Loan Terms'' 
that contains the following information and satisfies the following 
requirements:
    (1) Loan amount. The amount of credit to be extended under the 
terms of the legal obligation, labeled ``Loan Amount.''
    (2) Interest rate. The interest rate that will be applicable to the 
transaction at consummation, labeled ``Interest Rate.'' For an 
adjustable rate transaction, if the interest rate at consummation is 
not known, the rate disclosed shall be the fully-indexed rate, which, 
for purposes of this paragraph, means the interest rate calculated 
using the index value and margin at the time of consummation.
    (3) Principal and interest payment. The initial periodic payment 
amount that will be due under the terms of the legal obligation, 
labeled ``Principal & Interest,'' immediately preceded by the 
applicable unit-period, and a statement referring to the payment amount 
that includes any mortgage insurance and escrow payments that is 
required to be disclosed pursuant to paragraph (c) of this section. If 
the interest rate at consummation is not known, the amount disclosed 
shall be calculated using the fully-indexed rate disclosed under 
paragraph (b)(2) of this section.
    (4) Prepayment penalty. A statement of whether the transaction 
includes a prepayment penalty, labeled ``Prepayment Penalty.'' For 
purposes of this paragraph (b)(4), ``prepayment penalty'' means a 
charge imposed for paying all or part of a transaction's principal 
before the date on which the principal is due, other than a waived, 
bona fide third-party charge that the creditor imposes if the consumer 
prepays all of the transaction's principal sooner than 36 months after 
consummation.
    (5) Balloon payment. A statement of whether the transaction 
includes a balloon payment, labeled ``Balloon Payment.'' For purposes 
of this paragraph (b)(5), ``balloon payment'' means a payment that is 
more than two times a regular periodic payment. ``Balloon payment'' 
includes the payment or payments under a transaction that requires only 
one or two payments during the loan term.
    (6) Adjustments after consummation. For each amount required to be 
disclosed by paragraphs (b)(1) through (3) of this section, a statement 
of whether the amount may increase after consummation as an affirmative 
or negative answer to the question, and under such question disclosed 
as a subheading, ``Can this amount increase after closing?'' and, in 
the case of an affirmative answer, the following additional 
information, as applicable:
    (i) Adjustment in loan amount. The maximum principal balance for 
the transaction and the due date of the last payment that may cause the 
principal balance to increase. The disclosure further shall indicate 
whether the maximum principal balance is potential or is scheduled to 
occur under the terms of the legal obligation.
    (ii) Adjustment in interest rate. The frequency of interest rate 
adjustments, the date when the interest rate may first adjust, the 
maximum interest rate, and the first date when the interest rate can 
reach the maximum interest rate, followed by a reference to the 
disclosure required by paragraph (j) of this section. If the loan term, 
as defined under paragraph (a)(8) of this section, may increase based 
on an interest rate adjustment, the disclosure required by this 
paragraph (b)(6)(ii) shall also state that fact and the maximum 
possible loan term determined in accordance with paragraph (a)(8) of 
this section.
    (iii) Increase in periodic payment. The scheduled frequency of 
adjustments to the periodic principal and interest payment, the due 
date of the first adjusted principal and interest payment, the maximum 
possible periodic principal and interest payment, and the date when the 
periodic principal and interest payment may first equal the maximum 
principal and interest payment. If any adjustments to the principal and 
interest payment are not the result of a change to the interest rate, a 
reference to the disclosure required by paragraph (i) of this section. 
If there is a period during which only interest is required to be paid, 
the disclosure required by this paragraph (b)(6)(iii) shall also state 
that fact and the due date of the last periodic payment of such period.
    (7) Details about prepayment penalty and balloon payment. The 
information required to be disclosed by paragraphs (b)(4) and (5) of 
this section shall be disclosed as an affirmative or negative answer to 
the question, and under such question disclosed as a subheading, ``Does 
the loan have these features?'' If an affirmative answer for a 
prepayment penalty or balloon payment is required to be disclosed, the 
following information shall be included, as applicable:
    (i) The maximum amount of the prepayment penalty that may be 
imposed and the date when the period during which the penalty may be 
imposed terminates; and
    (ii) The maximum amount of the balloon payment and the due date of 
such payment.
    (8) Timing. (i) The dates required to be disclosed by paragraph 
(b)(6)(ii) of this section shall be disclosed as the year in which the 
event occurs, counting from the date that interest for the first 
scheduled periodic payment begins to accrue after consummation.
    (ii) The dates required to be disclosed by paragraphs (b)(6)(i), 
(b)(6)(iii) and (b)(7)(ii) of this section shall be disclosed as the 
year in which the event occurs, counting from the due date of the 
initial periodic payment.
    (iii) The date required to be disclosed by paragraph (b)(7)(i) of 
this section shall be disclosed as the year in which the event occurs, 
counting from the date of consummation.
    (c) Projected payments. In a separate table under the heading 
``Projected Payments,'' an itemization of each separate periodic 
payment or range of payments, together with an estimate of taxes, 
insurance, and assessments and the payments to be made with escrow 
account funds.

[[Page 80115]]

    (1) Periodic payment or range of payments. (i) The initial periodic 
payment or range of payments is a separate periodic payment or range of 
payments and, except as otherwise provided in paragraph (c)(1)(ii) and 
(iii) of this section, the following events require the disclosure of 
additional separate periodic payments or ranges of payments:
    (A) The periodic principal and interest payment or range of such 
payments may change;
    (B) A scheduled balloon payment, as defined in paragraph (b)(5) of 
this section;
    (C) The creditor must automatically terminate mortgage insurance or 
any functional equivalent under applicable law; and
    (D) The anniversary of the due date of the initial periodic payment 
or range of payments that immediately follows the occurrence of 
multiple events described in paragraph (c)(1)(i)(A) of this section 
during a single year.
    (ii) The table required by this paragraph (c) shall not disclose 
more than four separate periodic payments or ranges of payments. For 
all events requiring disclosure of additional separate periodic 
payments or ranges of payments described in paragraph (c)(1)(i)(A) 
through (D) of this section occurring after the third separate periodic 
payment or range of payments disclosed, the separate periodic payments 
or ranges of payments shall be disclosed as a single range of payments, 
subject to the following exceptions:
    (A) A balloon payment that is scheduled as a final payment under 
the terms of the legal obligation shall always be disclosed as a 
separate periodic payment or range of payments, in which case all 
events requiring disclosure of additional separate periodic payments or 
ranges of payments described in paragraph (c)(1)(i)(A) through (D) of 
this section occurring after the second separate periodic payment or 
range of payments disclosed, other than the balloon payment that is 
scheduled as a final payment, shall be disclosed as a single range of 
payments.
    (B) The automatic termination of mortgage insurance or any 
functional equivalent under applicable law shall require disclosure of 
an additional separate periodic payment or range of payments only if 
the total number of separate periodic payments or ranges of payments 
otherwise disclosed pursuant to this paragraph (c)(1) does not exceed 
three.
    (iii) When a range of payments is required to be disclosed under 
this paragraph (c)(1), the creditor must disclose the minimum and 
maximum amount for both the principal and interest payment under 
paragraph (c)(2)(i) of this section and the total periodic payment 
under paragraph (c)(2)(iv) of this section. A range of payments is 
required to be disclosed under this paragraph (c)(1) when:
    (A) Multiple events described in paragraph (c)(1)(i) of this 
section are combined in a single range of payments pursuant to 
paragraph (c)(1)(ii) of this section;
    (B) Multiple events described in paragraph (c)(1)(i)(A) of this 
section occur during a single year or an event described in paragraph 
(c)(1)(i)(A) of this section occurs during the same year as the initial 
periodic payment or range of payments, in which case the creditor 
discloses the range of payments that would apply during the year in 
which the events occur; or
    (C) The periodic principal and interest payment may adjust based on 
index rates at the time an interest rate adjustment may occur.
    (2) Itemization. Each separate periodic payment or range of 
payments disclosed on the table required by this paragraph (c) shall be 
itemized as follows:
    (i) The amount payable for principal and interest, labeled 
``Principal & Interest,'' including the term ``only interest'' if the 
payment or range of payments includes any interest only payment:
    (A) In the case of a loan that has an adjustable interest rate, the 
maximum principal and interest payment amounts are determined by 
assuming that the interest rate in effect throughout the loan term is 
the maximum possible interest rate, and the minimum amounts are 
determined by assuming that the interest rate in effect throughout the 
loan term is the minimum possible interest rate;
    (B) In the case of a loan that has an adjustable interest rate and 
also contains a negative amortization feature, the maximum principal 
and interest payment amounts after the end of the period of the loan's 
term during which the loan's principal balance may increase due to the 
addition of accrued interest are determined by assuming the maximum 
principal amount permitted under the terms of the legal obligation at 
the end of such period, and the minimum amounts are determined pursuant 
to paragraph (c)(2)(i)(A) of this section;
    (ii) The maximum amount payable for mortgage insurance premiums 
corresponding to the principal and interest payment disclosed pursuant 
to paragraph (c)(2)(i) of this section, labeled ``Mortgage Insurance'';
    (iii) The amount payable into an escrow account to pay some or all 
of the charges described in paragraph (c)(4)(ii), as applicable, 
labeled ``Escrow,'' together with a statement that the amount disclosed 
can increase over time; and
    (iv) The total periodic payment, calculated as the sum of the 
amounts disclosed pursuant to paragraphs (c)(2)(i) through (iii) of 
this section, labeled ``Total Monthly Payment.''
    (3) Subheadings. (i) The labels required pursuant to paragraph 
(c)(2) of this section must be listed under the subheading ``Payment 
Calculation.''
    (ii) Except as provided in paragraph (c)(3)(iii) of this section, 
each separate periodic payment or range of payments to be disclosed 
under this paragraph (c) must be disclosed under a subheading that 
states the years of the loan during which that payment or range of 
payments will apply. The subheadings must be stated in a sequence of 
whole years from the due date of the initial periodic payment.
    (iii) A balloon payment that is scheduled as a final payment under 
the terms of the legal obligation must be disclosed under the 
subheading ``Final Payment.''
    (4) Taxes, insurance, and assessments. Under the information 
required by paragraphs (c)(1) through (3) of this section:
    (i) The label ``Taxes, Insurance & Assessments'';
    (ii) The sum of the charges identified in Sec.  1026.43(b)(8), 
other than amounts identified in Sec.  1026.4(b)(5), expressed as a 
monthly amount, even if no escrow account for the payment of some or 
any of such charges will be established;
    (iii) A statement that the amount disclosed pursuant to paragraph 
(c)(4)(ii) of this section can increase over time;
    (iv) A statement of whether the amount disclosed pursuant to 
paragraph (c)(4)(ii) of this section includes payments for property 
taxes, amounts identified in Sec.  1026.4(b)(8), and other amounts 
described in paragraph (c)(4)(ii) of this section, along with a 
description of any such other amounts, and an indication of whether 
such amounts will be paid by the creditor using escrow account funds;
    (v) A statement that the consumer must pay separately any amounts 
described in paragraph (c)(4)(ii) of this section that are not paid by 
the creditor using escrow account funds; and
    (vi) A reference to the information disclosed pursuant to paragraph 
(g)(3) of this section.
    (5) Calculation of taxes and insurance. For purposes of paragraphs

[[Page 80116]]

(c)(2)(iii) and (c)(4)(ii) of this section, estimated property taxes 
and homeowner's insurance shall reflect:
    (i) The taxable assessed value of the real property securing the 
transaction after consummation, including the value of any improvements 
on the property or to be constructed on the property, if known, whether 
or not such construction will be financed from the proceeds of the 
transaction, for property taxes; and
    (ii) The replacement costs of the property during the initial year 
after the transaction, for amounts identified in Sec.  1026.4(b)(8).
    (d) Costs at closing. (1) Costs at closing table. In a separate 
table, under the heading ``Costs at Closing'':
    (i) Labeled ``Closing Costs,'' the dollar amount disclosed pursuant 
to paragraph (g)(6) of this section, together with:
    (A) A statement that the amount disclosed pursuant to paragraph 
(d)(1)(i) of this section includes the amounts disclosed pursuant to 
paragraphs (f)(4), (g)(5), and (g)(6)(ii);
    (B) The dollar amount disclosed pursuant to paragraph (f)(4) of 
this section, labeled ``Loan Costs'';
    (C) The dollar amount disclosed pursuant to paragraph (g)(5) of 
this section, labeled ``Other Costs'':
    (D) The dollar amount disclosed pursuant to paragraph (g)(6)(ii) of 
this section, labeled ``Lender Credits''; and
    (E) A statement referring the consumer to the tables disclosed 
pursuant to paragraphs (f) and (g) of this section for details.
    (ii) Labeled ``Cash to Close,'' the dollar amount calculated in 
accordance with paragraph (h)(1)(viii) of this section, together with:
    (A) A statement that the amount includes the amount disclosed 
pursuant to paragraph (d)(1)(i) of this section, and
    (B) A statement referring the consumer to the location of the table 
required pursuant to paragraph (h) of this section for details.
    (2) Optional alternative table for transactions without a seller. 
For transactions that do not involve a seller, instead of the amount 
and statements described in paragraph (d)(1)(ii) of this section, the 
creditor may alternatively disclose, using the label ``Cash to Close'':
    (i) The amount calculated in accordance with (h)(2)(iv) of this 
section;
    (ii) A statement of whether the disclosed estimated amount is due 
from or to the consumer; and
    (iii) A statement referring the consumer to the alternative table 
disclosed pursuant to paragraph (h)(2) of this section for details.
    (e) Web site reference. A statement that the consumer may obtain 
general information and tools at the Web site of the Bureau, and the 
link or uniform resource locator address to the Web site: 
www.consumerfinance.gov/mortgage-estimate.
    (f) Closing cost details; loan costs. Under the master heading 
``Closing Cost Details,'' in a table under the heading ``Loan Costs,'' 
all loan costs associated with the transaction. The table shall contain 
the items and amounts listed under four subheadings, described in 
paragraphs (f)(1) through (4) of this section.
    (1) Origination charges. Under the subheading ``Origination 
Charges,'' an itemization of each amount, and a subtotal of all such 
amounts, that the consumer will pay to each creditor and loan 
originator for originating and extending the credit.
    (i) The points paid to the creditor to reduce the interest rate 
shall be itemized separately, as both a percentage of the amount of 
credit extended and a dollar amount, and using the label ``----% of 
Loan Amount (Points).'' If points to reduce the interest rate are not 
paid, the disclosure required by this paragraph (f)(1)(i) must be 
blank.
    (ii) The number of items disclosed under this paragraph (f)(1), 
including the points disclosed under paragraph (f)(1)(i) of this 
section, shall not exceed 13.
    (2) Services you cannot shop for. Under the subheading ``Services 
You Cannot Shop For,'' an itemization of each amount, and a subtotal of 
all such amounts, the consumer will pay for settlement services for 
which the consumer cannot shop in accordance with Sec.  
1026.19(e)(1)(vi)(A) and that are provided by persons other than the 
creditor or mortgage broker.
    (i) For any item that is a component of title insurance or is for 
conducting the closing, the introductory description ``Title --'' shall 
appear at the beginning of the label for that item.
    (ii) The number of items disclosed under this paragraph (f)(2) 
shall not exceed 13.
    (3) Services you can shop for. Under the subheading ``Services You 
Can Shop For,'' an itemization of each amount and a subtotal of all 
such amounts the consumer will pay for settlement services for which 
the consumer can shop in accordance with Sec.  1026.19(e)(1)(vi)(A) and 
that are provided by persons other than the creditor or mortgage 
broker.
    (i) For any item that is a component of title insurance or is for 
conducting the closing, the introductory description ``Title --'' shall 
appear at the beginning of the label for that item.
    (ii) The number of items disclosed under this paragraph (f)(3) 
shall not exceed 14.
    (4) Total loan costs. Under the subheading ``Total Loan Costs,'' 
the sum of the subtotals disclosed under paragraphs (f)(1) through (3) 
of this section.
    (5) Item descriptions and ordering. The items listed as loan costs 
pursuant to this paragraph (f) shall be labeled using terminology that 
describes each item, subject to the requirements of paragraphs 
(f)(1)(i), (f)(2)(i), and (f)(3)(i) of this section.
    (i) The item prescribed in paragraph (f)(1)(i) of this section for 
points shall be the first item listed in the disclosure pursuant to 
paragraph (f)(1) of this section.
    (ii) All other items must be listed in alphabetical order by their 
labels under the applicable subheading.
    (6) Use of addenda. (i) An addendum to a form of disclosures 
prescribed by this section may not be used for items described in 
paragraph (f)(1) or (2) of this section. If the creditor is not able to 
itemize every service and every corresponding charge required to be 
disclosed in the number of lines provided by paragraph (f)(1)(ii) or 
(f)(2)(ii) of this section, the remaining charges shall be disclosed as 
an aggregate amount in the last line permitted under paragraph 
(f)(1)(ii) or (f)(2)(ii), as applicable, labeled ``Additional 
Charges.''
    (ii) An addendum to a form of disclosures prescribed by this 
section may be used for items described in paragraph (f)(3) of this 
section. If the creditor is not able to itemize all of the charges 
required to be disclosed in the number of lines provided by paragraph 
(f)(3)(ii), the remaining charges shall be disclosed as follows:
    (A) Label the last line permitted under paragraph (f)(3)(ii) with 
an appropriate reference to an addendum and list the remaining items on 
the addendum in accordance with the requirements in paragraphs (f)(3) 
and (5) of this section; or
    (B) Disclose the remaining charges as an aggregate amount in the 
last line permitted under paragraph (f)(3)(ii), labeled ``Additional 
Charges.''
    (g) Closing cost details; other costs. Under the master heading 
``Closing Cost Details,'' in a table under the heading ``Other Costs,'' 
all costs associated with the transaction that are in addition to the 
costs disclosed under paragraph (f) of this section. The table shall 
contain the items and amounts listed under six

[[Page 80117]]

subheadings, described in paragraphs (g)(1) through (6) of this 
section.
    (1) Taxes and other government fees. Under the subheading ``Taxes 
and Other Government Fees,'' the amounts to be paid to State and local 
governments for taxes and other government fees, and the subtotal of 
all such amounts, as follows:
    (i) On the first line, the sum of all recording fees and other 
government fees and taxes, except for transfer taxes paid by the 
consumer and disclosed pursuant to paragraph (g)(1)(ii) of this 
section, labeled ``Recording Fees and Other Taxes.''
    (ii) On the second line, the sum of all transfer taxes paid by the 
consumer, labeled ``Transfer Taxes.''
    (iii) If an amount required to be disclosed by this paragraph 
(g)(1) is not charged to the consumer, the amount disclosed on the 
applicable line required by this paragraph (g)(1) must be blank.
    (2) Prepaids. Under the subheading ``Prepaids,'' an itemization of 
the amounts to be paid by the consumer in advance of the first 
scheduled payment, and the subtotal of all such amounts, as follows:
    (i) On the first line, the number of months for which homeowner's 
insurance premiums are to be paid by the consumer at consummation and 
the total dollar amount to be paid by the consumer at consummation for 
such premiums, labeled ``Homeowner's Insurance Premium ( ---- 
months).''
    (ii) On the second line, the number of months for which mortgage 
insurance premiums are to be paid by the consumer at consummation and 
the total dollar amount to be paid by the consumer at consummation for 
such premiums, labeled ``Mortgage Insurance Premium ( ---- months).''
    (iii) On the third line, the amount of prepaid interest to be paid 
per day, the number of days for which prepaid interest will be 
collected, the interest rate, and the total dollar amount to be paid by 
the consumer at consummation for such interest, labeled ``Prepaid 
Interest ( ------ per day for ---- days @---- %).''
    (iv) On the fourth line, the number of months for which property 
taxes are to be paid by the consumer at consummation and the total 
dollar amount to be paid by the consumer at consummation for such 
taxes, labeled ``Property Taxes ( ---- months).''
    (v) If an amount is not charged to the consumer for any item for 
which this paragraph (g)(2) prescribes a label, each of the amounts 
required to be disclosed on that line must be blank.
    (vi) A maximum of three additional items may be disclosed under 
this paragraph (g)(2), and each additional item must be identified and 
include the applicable time period covered by the amount to be paid by 
the consumer at consummation and the total amount to be paid.
    (3) Initial escrow payment at closing. Under the subheading 
``Initial Escrow Payment at Closing,'' an itemization of the amounts 
that the consumer will be expected to place into a reserve or escrow 
account at consummation to be applied to recurring periodic charges, 
and the subtotal of all such amounts, as follows:
    (i) On the first line, the amount escrowed per month, the number of 
months covered by an escrowed amount collected at consummation, and the 
total amount to be paid into the escrow account by the consumer at 
consummation for homeowner's insurance premiums, labeled ``Homeowner's 
Insurance ---- per month for ---- mo.''
    (ii) On the second line, the amount escrowed per month, the number 
of months covered by an escrowed amount collected at consummation, and 
the total amount to be paid into the escrow account by the consumer at 
consummation for mortgage insurance premiums, labeled ``Mortgage 
Insurance ---- per month for ---- mo.''
    (iii) On the third line, the amount escrowed per month, the number 
of months covered by an escrowed amount collected at consummation, and 
the total amount to be paid into the escrow account by the consumer at 
consummation for property taxes, labeled ``Property Taxes ---- per 
month for ---- mo.''
    (iv) If an amount is not charged to the consumer for any item for 
which this paragraph (g)(3) prescribes a label, each of the amounts 
required to be disclosed on that line must be blank.
    (v) A maximum of five items may be disclosed pursuant to this 
paragraph (g)(3) in addition to the items described in paragraph 
(g)(3)(i) through (iii) of this section, and each such additional item 
must be identified with a descriptive label and include the applicable 
amount per month, the number of months collected at consummation, and 
the total amount to be paid.
    (4) Other. Under the subheading ``Other,'' an itemization of any 
other amounts in connection with the transaction that the consumer is 
likely to pay or has contracted with a person other than the creditor 
or loan originator to pay at closing and of which the creditor is aware 
at the time of issuing the Loan Estimate, a descriptive label of each 
such amount, and the subtotal of all such amounts.
    (i) For any item that is a component of title insurance, the 
introductory description ``Title --'' shall appear at the beginning of 
the label for that item.
    (ii) The parenthetical description ``(optional)'' shall appear at 
the end of the label for items disclosing any premiums paid for 
separate insurance, warranty, guarantee, or event-coverage products.
    (iii) The number of items disclosed under this paragraph (g)(4) 
shall not exceed five.
    (5) Total other costs. Under the subheading ``Total Other Costs,'' 
the sum of the subtotals disclosed pursuant to paragraphs (g)(1) 
through (4) of this section.
    (6) Total closing costs. Under the subheading ``Total Closing 
Costs,'' the component amounts and their sum, as follows:
    (i) The sum of the amounts disclosed as loan costs and other costs 
under paragraphs (f)(4) and (g)(5) of this section, labeled ``D + I''; 
and
    (ii) The amount of any lender credits, disclosed as a negative 
number with the label ``Lender Credits'' provided that, if no such 
amount is disclosed, the amount must be blank.
    (7) Item descriptions and ordering. The items listed as other costs 
pursuant to this paragraph (g) shall be labeled using terminology that 
describes each item.
    (i) The items prescribed in paragraphs (g)(1)(i) and (ii), 
(g)(2)(i) through (iv), and (g)(3)(i) through (iii) of this section 
must be listed in the order prescribed as the initial items under the 
applicable subheading, with any additional items to follow.
    (ii) All additional items must be listed in alphabetical order 
under the applicable subheading.
    (8) Use of addenda. An addendum to a form of disclosures prescribed 
by this section may not be used for items required to be disclosed by 
this paragraph (g). If the creditor is not able to itemize all of the 
charges described in this paragraph (g) in the number of lines provided 
by paragraphs (g)(2)(vi), (3)(v), or (4)(iii) of this section, the 
remaining charges shall be disclosed as an aggregate amount in the last 
line permitted under paragraphs (g)(2)(vi), (g)(3)(v), or (g)(4)(iii), 
as applicable, using the label ``Additional Charges.''
    (h) Calculating cash to close--(1) For all transactions. Under the 
master heading ``Closing Cost Details,'' under the heading 
``Calculating Cash to Close,'' the total amount of cash or other funds 
that must be provided by the consumer at consummation, with an

[[Page 80118]]

itemization of that amount into the following component amounts:
    (i) Total closing costs. The amount disclosed under paragraph 
(g)(6) of this section, disclosed as a positive number, labeled ``Total 
Closing Costs'';
    (ii) Closing costs to be financed. The amount of any closing costs 
to be paid out of loan proceeds, disclosed as a negative number, 
labeled ``Closing Costs Financed (Paid from your Loan Amount)'';
    (iii) Downpayment and other funds from borrower. Labeled ``Down 
Payment/Funds from Borrower'':
    (A) In a purchase transaction as defined in paragraph (a)(9)(i) of 
this section, the amount of the difference between the purchase price 
of the property and the principal amount of the loan, disclosed as a 
positive number; or
    (B) In all transactions other than purchase transactions as defined 
in paragraph (a)(9)(i) of this section, the estimated funds from the 
consumer as determined in accordance with paragraph (h)(1)(v) of this 
section;
    (iv) Deposit. (A) In a purchase transaction as defined in paragraph 
(a)(9)(i) of this section, the amount that is paid to the seller or 
held in trust or escrow by an attorney or other party under the terms 
of the agreement for the sale of the property, disclosed as a negative 
number, labeled ``Deposit'';
    (B) In all transactions other than purchase transactions as defined 
in paragraph (a)(9)(i) of this section, the amount of $0, labeled 
``Deposit'';
    (v) Funds for borrower. The amount of funds for the consumer, 
labeled ``Funds for Borrower.'' The amount of funds from the consumer 
disclosed under paragraph (h)(1)(iii)(B) of this section, and of funds 
for the consumer disclosed under this paragraph (h)(1)(v) of this 
section, are determined by subtracting the principal amount of the 
credit extended (excluding any amount disclosed pursuant to paragraph 
(h)(1)(ii) of this section) from the total amount of all existing debt 
being satisfied in the transaction (except to the extent the 
satisfaction of such existing debt is disclosed under paragraph (g) of 
this section);
    (A) If the calculation under this paragraph (h)(1)(v) yields an 
amount that is a positive number, such amount is disclosed under 
paragraph (h)(1)(iii)(B) of this section, and $0 is disclosed under 
this paragraph (h)(1)(v);
    (B) If the calculation under this paragraph (h)(1)(v) yields an 
amount that is a negative number, such amount is disclosed under this 
paragraph (h)(1)(v) as a negative number, and $0 is disclosed under 
paragraph (h)(1)(iii)(B) of this section;
    (C) If the calculation under this paragraph (h)(1)(v) of this 
section yields $0, then $0 is disclosed under paragraphs (h)(1)(iii)(B) 
and paragraph (h)(1)(v) of this section;
    (vi) Seller credits. The total amount that the seller will pay for 
total loan costs as determined by paragraph (f)(4) of this section and 
total other costs as determined by paragraph (g)(5) of this section, to 
the extent known, disclosed as a negative number, labeled ``Seller 
Credits'';
    (vii) Adjustments and other credits. The amount of all loan costs 
determined pursuant to paragraph (f) and other costs determined 
pursuant to paragraph (g) that are paid by persons other than the loan 
originator, creditor, consumer, or seller, together with any other 
amounts that are required to be paid by the consumer at closing 
pursuant to a purchase and sale contract, disclosed as a negative 
number, labeled ``Adjustments and Other Credits''; and
    (viii) Estimated Cash to Close. The sum of the amounts disclosed 
under paragraphs (h)(1)(i) through (vii) of this section labeled ``Cash 
to Close.''
    (2) Optional alternative calculating cash to close table for 
transactions without a seller. For transactions that do not involve a 
seller, instead of the table described in paragraph (h)(1) above, the 
creditor may alternatively provide, in a separate table, under the 
master heading ``Closing Cost Details,'' under the heading 
``Calculating Cash to Close,'' the total amount of cash or other funds 
that must be provided by the consumer at consummation with an 
itemization of that amount into the following component amounts:
    (i) Loan amount. The amount disclosed under paragraph (b)(1) of 
this section, labeled ``Loan Amount'';
    (ii) Total closing costs. The amount disclosed under paragraph 
(g)(6) of this section, disclosed as a negative number, labeled ``Total 
Closing Costs'';
    (iii) Payoffs and payments. The total amount of payoffs and 
payments to be made to third parties not otherwise disclosed pursuant 
to paragraphs (f) and (g) of this section, disclosed as a negative 
number, labeled ``Total Payoffs and Payments'';
    (iv) Cash to or from consumer. The amount of cash or other funds 
due from or to the consumer and a statement of whether the disclosed 
estimated amount is due from or to the consumer, calculated by the sum 
of the amounts disclosed under paragraphs (h)(2)(i) through (iii) of 
this section, labeled ``Cash to Close''; and
    (v) Closing costs financed. The sum of the amounts disclosed under 
paragraphs (h)(2)(i) and (iii) of this section, but only to the extent 
that the sum is greater than zero and less than or equal to the sum 
disclosed under paragraph (g)(6) of this section, labeled ``Closing 
Costs Financed (Paid from your Loan Amount).''
    (i) Adjustable payment table. If the periodic principal and 
interest payment may change after consummation but not based on an 
adjustment to the interest rate, or if the transaction is a seasonal 
payment product as described in paragraph (a)(10)(ii)(E) of this 
section, a separate table under the master heading ``Closing Cost 
Details'' required by paragraph (f) of this section and under the 
heading ``Adjustable Payment (AP) Table'' that contains the following 
information and satisfies the following requirements:
    (1) Interest only payments. Whether the transaction is an interest 
only product pursuant to paragraph (a)(10)(ii)(B) of this section as an 
affirmative or negative answer to the question ``Interest Only 
Payments?'' and, if an affirmative answer is disclosed, the period 
during which interest only periodic payments are scheduled.
    (2) Optional payments. Whether the terms of the legal obligation 
expressly provide that the consumer may elect to pay a specified 
periodic principal and interest payment in an amount other than the 
scheduled amount of the payment, as an affirmative or negative answer 
to the question ``Optional Payments?'' and, if an affirmative answer is 
disclosed, the period during which the consumer may elect to make such 
payments.
    (3) Step payments. Whether the transaction is a step payment 
product pursuant to paragraph (a)(10)(ii)(C) of this section as an 
affirmative or negative answer to the question ``Step Payments?'' and, 
if an affirmative answer is disclosed, the period during which the 
regular periodic payments are scheduled to increase.
    (4) Seasonal payments. Whether the transaction is a seasonal 
payment product pursuant to paragraph (a)(10)(ii)(E) of this section as 
an affirmative or negative answer to the question ``Seasonal 
Payments?'' and, if an affirmative answer is disclosed, the period 
during which periodic payments are not scheduled.
    (5) Principal and interest payments. Under the subheading 
``Principal and Interest Payments,'' which subheading is immediately 
preceded by the applicable unit-period, the following information:

[[Page 80119]]

    (i) The number of the payment of the first periodic principal and 
interest payment that may change under the terms of the legal 
obligation disclosed under this paragraph (i), counting from the first 
periodic payment due after consummation, and the amount or range of the 
periodic principal and interest payment for such payment, labeled 
``First Change/Amount'';
    (ii) The frequency of subsequent changes to the periodic principal 
and interest payment, labeled ``Subsequent Changes''; and
    (iii) The maximum periodic principal and interest payment that may 
occur during the term of the transaction, and the first periodic 
principal and interest payment that can reach such maximum, counting 
from the first periodic payment due after consummation, labeled 
``Maximum Payment.''
    (j) Adjustable interest rate table. If the interest rate may 
increase after consummation, a separate table under the master heading 
``Closing Cost Details'' required by paragraph (f) of this section and 
under the heading ``Adjustable Interest Rate (AIR) Table'' that 
contains the following information and satisfies the following 
requirements:
    (1) Index and margin. If the interest rate may adjust and the 
product type is not a ``Step Rate'' under paragraph (a)(10)(i)(B) of 
this section, the index upon which the adjustments to the interest rate 
are based and the margin that is added to the index to determine the 
interest rate, if any, labeled ``Index + Margin.''
    (2) Increases in interest rate. If the product type is a ``Step 
Rate'' and not also an ``Adjustable Rate'' under paragraph 
(a)(10)(i)(A) of this section, the maximum amount of any adjustments to 
the interest rate that are scheduled and pre-determined, labeled 
``Interest Rate Adjustments.''
    (3) Initial interest rate. The interest rate at consummation of the 
loan transaction, labeled ``Initial Interest Rate.''
    (4) Minimum and maximum interest rate. The minimum and maximum 
interest rates for the loan, after any introductory period expires, 
labeled ``Minimum/Maximum Interest Rate.''
    (5) Frequency of adjustments. The following information, under the 
subheading ``Change Frequency'':
    (i) The month when the interest rate after consummation may first 
change, calculated from the date interest for the first scheduled 
periodic payment begins to accrue, labeled ``First Change''; and
    (ii) The frequency of interest rate adjustments after the initial 
adjustment to the interest rate, labeled, ``Subsequent Changes.''
    (6) Limits on interest rate changes. The following information, 
under the subheading ``Limits on Interest Rate Changes'':
    (i) The maximum possible change for the first adjustment of the 
interest rate after consummation, labeled ``First Change''; and
    (ii) The maximum possible change for subsequent adjustments of the 
interest rate after consummation, labeled ``Subsequent Changes.''
    (k) Contact information. Under the master heading, ``Additional 
Information About This Loan,'' the following information:
    (1) The name and Nationwide Mortgage Licensing System and Registry 
identification number (NMLSR ID) (labeled ``NMLS ID/License ID'') for 
the creditor (labeled ``Lender'') and the mortgage broker (labeled 
``Mortgage Broker''), if any. In the event the creditor or the mortgage 
broker has not been assigned an NMLSR ID, the license number or other 
unique identifier issued by the applicable jurisdiction or regulating 
body with which the creditor or mortgage broker is licensed and/or 
registered shall be disclosed, with the abbreviation for the State of 
the applicable jurisdiction or regulatory body stated before the word 
``License'' in the label, if any;
    (2) The name and NMLSR ID of the individual loan officer (labeled 
``Loan Officer'' and ``NMLS ID/License ID,'' respectively) of the 
creditor and the mortgage broker, if any, who is the primary contact 
for the consumer. In the event the individual loan officer has not been 
assigned an NMLSR ID, the license number or other unique identifier 
issued by the applicable jurisdiction or regulating body with which the 
loan officer is licensed and/or registered shall be disclosed with the 
abbreviation for the State of the applicable jurisdiction or regulatory 
body stated before the word ``License'' in the label, if any; and
    (3) The email address and telephone number of the loan officer 
(labeled ``Email'' and ``Phone,'' respectively).
    (l) Comparisons. Under the master heading, ``Additional Information 
About This Loan'' required by paragraph (k) of this section, in a 
separate table under the heading ``Comparisons'' along with the 
statement ``Use these measures to compare this loan with other loans'':
    (1) In five years. Using the label ``In 5 Years'':
    (i) The total principal, interest, mortgage insurance, and loan 
costs scheduled to be paid through the end of the 60th month after the 
due date of the first periodic payment, expressed as a dollar amount, 
along with the statement ``Total you will have paid in principal, 
interest, mortgage insurance, and loan costs''; and
    (ii) The principal scheduled to be paid through the end of the 60th 
month after the due date of the first periodic payment, expressed as a 
dollar amount, along with the statement ``Principal you will have paid 
off.''
    (2) Annual percentage rate. The ``Annual Percentage Rate,'' using 
that term and the abbreviation ``APR'' and expressed as a percentage, 
and the following statement: ``Your costs over the loan term expressed 
as a rate. This is not your interest rate.''
    (3) Total interest percentage. The total amount of interest that 
the consumer will pay over the life of the loan, expressed as a 
percentage of the amount of credit extended, using the term ``Total 
Interest Percentage,'' the abbreviation ``TIP,'' and the statement 
``The total amount of interest that you will pay over the loan term as 
a percentage of your loan amount.''
    (m) Other considerations. Under the master heading ``Additional 
Information About This Loan'' required by paragraph (k) of this section 
and under the heading ``Other Considerations'':
    (1) Appraisal. For transactions subject to 15 U.S.C. 1639h or 
1691(e), as implemented in this part or Regulation B, 12 CFR part 1002, 
respectively, a statement, labeled ``Appraisal,'' that:
    (i) The creditor may order an appraisal to determine the value of 
the property identified in paragraph (a)(6) of this section and may 
charge the consumer for that appraisal;
    (ii) The creditor will promptly provide the consumer a copy of any 
appraisal, even if the transaction is not consummated; and
    (iii) The consumer may choose to pay for an additional appraisal of 
the property for the consumer's use.
    (2) Assumption. A statement of whether a subsequent purchaser of 
the property may be permitted to assume the remaining loan obligation 
on its original terms, labeled ``Assumption.''
    (3) Homeowner's insurance. At the option of the creditor, a 
statement that homeowner's insurance is required on the property and 
that the consumer may choose the insurance provider, labeled 
``Homeowner's Insurance.''
    (4) Late payment. A statement detailing any charge that may be 
imposed for a late payment, stated as a dollar amount or percentage 
charge of the late payment amount, and the number of days that a 
payment must be late to trigger the late payment fee, labeled ``Late 
Payment.''
    (5) Refinance. The following statement, labeled ``Refinance'':

[[Page 80120]]

``Refinancing this loan will depend on your future financial situation, 
the property value, and market conditions. You may not be able to 
refinance this loan.''
    (6) Servicing. A statement of whether the creditor intends to 
service the loan or transfer the loan to another servicer, labeled 
``Servicing.''
    (7) Liability after foreclosure. If the purpose of the credit 
transaction is to refinance an extension of credit as described in 
paragraph (a)(9)(ii) of this section, a brief statement that certain 
State law protections against liability for any deficiency after 
foreclosure may be lost, the potential consequences of the loss of such 
protections, and a statement that the consumer should consult an 
attorney for additional information, labeled ``Liability after 
Foreclosure.''
    (n) Signature statement. (1) At the creditor's option, under the 
master heading required by paragraph (k) of this section and under the 
heading ``Confirm Receipt,'' a line for the signatures of the consumers 
in the transaction. If the creditor includes a line for the consumer's 
signature, the creditor must disclose the following above the signature 
line: ``By signing, you are only confirming that you have received this 
form. You do not have to accept this loan because you have signed or 
received this form.''
    (2) If the creditor does not include a line for the consumer's 
signature, the creditor must disclose the following statement under the 
heading ``Other Considerations'' required by paragraph (m) of this 
section, labeled ``Loan Acceptance'': ``You do not have to accept this 
loan because you have received this form or signed a loan 
application.''
    (o) Form of disclosures--(1) General requirements. (i) The creditor 
shall make the disclosures required by this section clearly and 
conspicuously in writing, in a form that the consumer may keep. The 
disclosures also shall be grouped together and segregated from 
everything else.
    (ii) Except as provided in paragraph (o)(5) of this section, the 
disclosures shall contain only the information required by paragraphs 
(a) through (n) of this section and shall be made in the same order, 
and positioned relative to the master headings, headings, subheadings, 
labels, and similar designations in the same manner, as shown in form 
H-24, set forth in appendix H to this part.
    (2) Headings and labels. If a master heading, heading, subheading, 
label, or similar designation contains the word ``estimated'' or a 
capital letter designation in form H-24, set forth in appendix H to 
this part, that heading, label, or similar designation shall contain 
the word ``estimated'' and the applicable capital letter designation.
    (3) Form. Except as provided in paragraph (o)(5) of this section:
    (i) For a transaction subject to Sec.  1026.19(e) that is a 
federally related mortgage loan, as defined in Regulation X, 12 CFR 
1024.2, the disclosures must be made using form H-24, set forth in 
appendix H to this part.
    (ii) For any other transaction subject to this section, the 
disclosures must be made with headings, content, and format 
substantially similar to form H-24, set forth in appendix H to this 
part.
    (iii) The disclosures required by this section may be provided to 
the consumer in electronic form, subject to compliance with the 
consumer consent and other applicable provisions of the Electronic 
Signatures in Global and National Commerce Act (15 U.S.C. 7001 et 
seq.).
    (4) Rounding--(i) Nearest dollar. (A) The dollar amounts required 
to be disclosed by paragraphs (b)(6) and (7), (c)(1)(iii), (c)(2)(ii) 
and (iii), (c)(4)(ii), (f), (g), (h), (i), and (l) of this section 
shall be rounded to the nearest whole dollar, except that the per diem 
amount required to be disclosed by paragraph (g)(2)(iii) of this 
section and the monthly amounts required to be disclosed by paragraphs 
(g)(3)(i) through (iv) of this section shall not be rounded.
    (B) The dollar amount required to be disclosed by paragraph (b)(1) 
of this section shall not be rounded, and if the amount is a whole 
number then the amount disclosed shall be truncated at the decimal 
point.
    (C) The dollar amounts required to be disclosed by paragraph 
(c)(2)(iv) of this section shall be rounded to the nearest whole 
dollar, if any of the component amounts are required by paragraph 
(o)(4)(i)(A) of this section to be rounded to the nearest whole dollar.
    (ii) Percentages. The percentage amounts required to be disclosed 
under paragraphs (b)(2) and (6), (f)(1)(i), (g)(2)(iii), (j), and 
(l)(3) of this section shall not be rounded and shall be disclosed up 
to two or three decimal places. The percentage amount required to be 
disclosed under paragraph (l)(2) of this section shall be disclosed up 
to three decimal places. If the amount is a whole number then the 
amount disclosed shall be truncated at the decimal point.
    (5) Exceptions--(i) Unit-period. Wherever the form or this section 
uses ``monthly'' to describe the frequency of any payments or uses 
``month'' to describe the applicable unit-period, the creditor shall 
substitute the appropriate term to reflect the fact that the 
transaction's terms provide for other than monthly periodic payments, 
such as bi-weekly or quarterly payments.
    (ii) Translation. The form may be translated into languages other 
than English, and creditors may modify form H-24 of appendix H to this 
part to the extent that translation prevents the headings, labels, 
designations, and required disclosure items under this section from 
fitting in the space provided on form H-24.
    (iii) Logo or slogan. The creditor providing the form may use a 
logo for, and include a slogan with, the information required by 
paragraph (a)(3) of this section in any font size or type, provided 
that such logo or slogan does not cause the information required by 
paragraph (a)(3) of this section to exceed the space provided for that 
information, as illustrated in form H-24 of appendix H to this part. If 
the creditor does not use a logo for the information required by 
paragraph (a)(3) of this section, the information shall be disclosed in 
a similar format as form H-24.
    (iv) Business card. The creditor may physically attach a business 
card over the information required to be disclosed by paragraph (a)(3) 
of this section.
    (v) Administrative information. The creditor may insert at the 
bottom of each page under the disclosures required by this section as 
illustrated by form H-24 of appendix H to this part, any administrative 
information, text, or codes that assist in identification of the form 
or the information disclosed on the form, provided that the space 
provided on form H-24 of appendix H to this part for any of the 
information required by this section is not altered.

0
20. Section 1026.38 is added to read as follows:


Sec.  1026.38  Content of disclosures for certain mortgage transactions 
(Closing Disclosure).

    For each transaction subject to Sec.  1026.19(f), the creditor 
shall disclose the information in this section:
    (a) General information--(1) Form title. The title of the form, 
``Closing Disclosure,'' using that term.
    (2) Form purpose. The following statement: ``This form is a 
statement of final loan terms and closing costs. Compare this document 
with your Loan Estimate.''
    (3) Closing information. Under the heading ``Closing Information'':
    (i) Date issued. The date the disclosures required by this section 
are delivered to the consumer, labeled ``Date Issued.''
    (ii) Closing date. The date of consummation, labeled ``Closing 
Date.''

[[Page 80121]]

    (iii) Disbursement date. The date the amounts disclosed pursuant to 
paragraphs (j)(3)(iii) and (k)(3)(iii) of this section are expected to 
be paid in a purchase transaction under Sec.  1026.37(a)(9)(i) to the 
consumer and seller, respectively, as applicable, or the date the 
amounts disclosed pursuant to paragraphs (j)(2)(iii) or (t)(5)(vii)(B) 
of this section are expected to be paid to the consumer or a third 
party in a transaction that is not a purchase transaction under Sec.  
1026.37(a)(9)(i), labeled ``Disbursement Date.''
    (iv) Settlement agent. The name of the settlement agent conducting 
the closing, labeled ``Settlement Agent.''
    (v) File number. The number assigned to the transaction by the 
settlement agent for identification purposes, labeled ``File 
.''
    (vi) Property. The address or location of the property required to 
be disclosed under Sec.  1026.37(a)(6), labeled ``Property.''
    (vii) Sale price. (A) In credit transactions where there is a 
seller, the contract sale price of the property identified in paragraph 
(a)(3)(vi) of this section, labeled ``Sale Price.''
    (B) In credit transactions where there is no seller, the appraised 
value of the property identified in paragraph (a)(3)(vi) of this 
section, labeled ``Appraised Prop. Value.''
    (4) Transaction information. Under the heading ``Transaction 
Information'':
    (i) Borrower. The consumer's name and mailing address, labeled 
``Borrower.''
    (ii) Seller. Where applicable, the seller's name and mailing 
address, labeled ``Seller.''
    (iii) Lender. The name of the creditor making the disclosure, 
labeled ``Lender.''
    (5) Loan information. Under the heading ``Loan Information'':
    (i) Loan term. The information required to be disclosed under Sec.  
1026.37(a)(8), labeled ``Loan Term.''
    (ii) Purpose. The information required to be disclosed under Sec.  
1026.37(a)(9), labeled ``Purpose.''
    (iii) Product. The information required to be disclosed under Sec.  
1026.37(a)(10), labeled ``Product.''
    (iv) Loan type. The information required to be disclosed under 
Sec.  1026.37(a)(11), labeled ``Loan Type.''
    (v) Loan identification number. The information required to be 
disclosed under Sec.  1026.37(a)(12), labeled ``Loan ID .''
    (vi) Mortgage insurance case number. The case number for any 
mortgage insurance policy, if required by the creditor, labeled ``MIC 
.''
    (b) Loan terms. A separate table under the heading ``Loan Terms'' 
that includes the information required by Sec.  1026.37(b).
    (c) Projected payments. A separate table, under the heading 
``Projected Payments,'' that includes and satisfies the following 
information and requirements:
    (1) Projected payments or range of payments. The information 
required to be disclosed pursuant to Sec.  1026.37(c)(1) through (4), 
other than Sec.  1026.37(c)(4)(vi). In disclosing estimated escrow 
payments as described in Sec.  1026.37(c)(2)(iii) and (c)(4)(ii), the 
amount disclosed on the Closing Disclosure:
    (i) For transactions subject to RESPA, is determined under the 
escrow account analysis described in Regulation X, 12 CFR 1024.17;
    (ii) For transactions not subject to RESPA, may be determined under 
the escrow account analysis described in Regulation X, 12 CFR 1024.17 
or in the manner set forth in Sec.  1026.37(c)(5).
    (2) Estimated taxes, insurance, and assessments. A reference to the 
disclosure required by paragraph (l)(7) of this section.
    (d) Costs at closing--(1) Costs at closing table. In a separate 
table, under the heading ``Costs at Closing'':
    (i) Labeled ``Closing Costs,'' the sum of the dollar amounts 
disclosed pursuant to paragraphs (f)(4), (g)(5), and (h)(3) of this 
section, together with:
    (A) A statement that the amount disclosed pursuant to paragraph 
(d)(1)(i) of this section includes the amounts disclosed pursuant to 
paragraphs (f)(4), (g)(5), and (h)(3) of this section;
    (B) The dollar amount disclosed pursuant to paragraph (f)(4) of 
this section, labeled ``Loan Costs'';
    (C) The dollar amount disclosed pursuant to paragraph (g)(5) of 
this section, labeled ``Other Costs'';
    (D) The dollar amount disclosed pursuant to paragraph (h)(3) of 
this section, labeled ``Lender Credits''; and
    (E) A statement referring the consumer to the tables disclosed 
pursuant to paragraphs (f) and (g) of this section for details.
    (ii) Labeled ``Cash to Close,'' the sum of the dollar amounts 
calculated in accordance with paragraph (i)(9)(ii) of this section, 
together with:
    (A) A statement that the amount disclosed pursuant to paragraph 
(d)(1)(ii) of this section includes the amount disclosed pursuant to 
paragraph (d)(1)(i) of this section; and
    (B) A statement referring the consumer to the table required 
pursuant to paragraph (i) of this section for details.
    (2) Alternative table for transactions without a seller. For 
transactions that do not involve a seller and where the creditor 
disclosed the optional alternative table pursuant to Sec.  
1026.37(d)(2), the creditor shall disclose, with the label ``Cash to 
Close,'' instead of the sum of the dollar amounts described in 
paragraph (d)(1)(ii) of this section:
    (i) The amount calculated in accordance with paragraph (e)(5)(ii) 
of this section;
    (ii) A statement of whether the disclosed amount is due from or to 
the consumer; and
    (iii) A statement referring the consumer to the table required 
pursuant to paragraph (e) of this section for details.
    (e) Alternative calculating cash to close table for transactions 
without a seller. For transactions that do not involve a seller and 
where the creditor disclosed the optional alternative table pursuant to 
Sec.  1026.37(h)(2), the creditor shall disclose, instead of the table 
described in paragraph (i) of this section, in a separate table, under 
the heading ``Calculating Cash to Close,'' together with the statement 
``Use this table to see what has changed from your Loan Estimate'':
    (1) Loan amount. Labeled ``Loan Amount:''
    (i) Under the subheading ``Loan Estimate,'' the loan amount 
disclosed on the Loan Estimate under Sec.  1026.37(b)(1);
    (ii) Under the subheading ``Final,'' the loan amount disclosed 
under paragraph (b) of this section;
    (iii) Disclosed more prominently than the other disclosures under 
paragraph (e)(1)(i) and (ii) of this section, under the subheading 
``Did this change?'':
    (A) If the amount disclosed under paragraph (e)(1)(ii) of this 
section is different than the amount disclosed under paragraph 
(e)(1)(i) of this section (unless the difference is due to rounding), a 
statement of that fact along with a statement of whether this amount 
increased or decreased; or
    (B) If the amount disclosed under paragraph (e)(1)(i) of this 
section is equal to the amount disclosed under paragraph (e)(1)(ii) of 
this section a statement of that fact.
    (2) Total closing costs. Labeled ``Total Closing Costs'':
    (i) Under the subheading ``Loan Estimate,'' the amount disclosed on 
the Loan Estimate under Sec.  1026.37(h)(2)(ii);
    (ii) Under the subheading ``Final,'' the amount disclosed under 
paragraph (h)(1) of this section, disclosed as a negative number; and
    (iii) Disclosed more prominently than the other disclosures under 
this paragraph (e)(2)(i) and (ii) of this

[[Page 80122]]

section, under the subheading ``Did this change?'':
    (A) If the amount disclosed under paragraph (e)(2)(ii) of this 
section is different than the amount disclosed under paragraph 
(e)(2)(i) of this section (unless the difference is due to rounding):
    (1) A statement of that fact;
    (2) If the difference in the amounts disclosed under paragraphs 
(e)(2)(i) and (e)(2)(ii) is attributable to differences in itemized 
charges that are included in either or both subtotals, a statement that 
the consumer should see the total loan costs and total other costs 
subtotals disclosed under paragraphs (f)(4) and (g)(5) of this section 
(together with references to such disclosures), as applicable; and
    (3) If the increase exceeds the limitations on increases in closing 
costs under Sec.  1026.19(e)(3), a statement that such increase exceeds 
the legal limits by the dollar amount of the excess and if any refund 
is provided pursuant to Sec.  1026.19(f)(2)(v), a statement directing 
the consumer to the disclosure required under paragraph (h)(3) of this 
section. Such dollar amount shall equal the sum total of all excesses 
of the limitations on increases in closing costs under Sec.  
1026.19(e)(3), taking into account the different methods of calculating 
excesses of the limitations on increases in closing costs under Sec.  
1026.19(e)(3)(i) and (ii).
    (B) If the amount disclosed under paragraph (e)(2)(i) of this 
section is equal to the amount disclosed under paragraph (e)(2)(ii) of 
this section, a statement of that fact.
    (3) Closing costs paid before closing. Labeled ``Closing Costs Paid 
Before Closing:''
    (i) Under the subheading ``Loan Estimate,'' the amount of $0;
    (ii) Under the subheading ``Final,'' any amount designated as 
borrower-paid before closing under paragraph (h)(2) of this section, 
disclosed as a positive number; and
    (iii) Disclosed more prominently than the other disclosures under 
this paragraph (e)(3)(i) and (ii) of this section, under the subheading 
``Did this change?'':
    (A) If the amount disclosed under paragraph (e)(3)(ii) of this 
section is different than the amount disclosed under paragraph 
(e)(3)(i) of this section (unless the difference is due to rounding), a 
statement of that fact along with a statement that the consumer 
included the closing costs in the loan amount, which increased the loan 
amount; or
    (B) If the amount disclosed under paragraph (e)(3)(ii) of this 
section is equal to the amount disclosed under paragraph (e)(3)(i) of 
this section, a statement of that fact.
    (4) Payoffs and payments. Labeled ``Total Payoffs and Payments,''
    (i) Under the subheading ``Loan Estimate,'' the total payoffs and 
payments disclosed on the Loan Estimate under Sec.  1026.37(h)(2)(iii);
    (ii) Under the subheading ``Final,'' the total amount of payoffs 
and payments made to third parties not otherwise disclosed pursuant to 
paragraph (t)(5)(vii)(B) of this section, to the extent known, 
disclosed as a negative number;
    (iii) Disclosed more prominently than the other disclosures under 
this paragraph (e)(4)(i) and (ii), under the subheading ``Did this 
change?'':
    (A) If the amount disclosed under paragraph (e)(4)(ii) of this 
section is different than the amount disclosed under paragraph 
(e)(4)(i) of this section (unless the difference is due to rounding), a 
statement of that fact along with a reference to the table disclosed 
under paragraph (t)(5)(vii)(B) of this section; or
    (B) If the amount disclosed under paragraph (e)(4)(ii) of this 
section is equal to the amount disclosed under paragraph (e)(4)(i) of 
this section, a statement of that fact.
    (5) Cash to or from consumer. Labeled ``Cash to Close:''
    (i) Under the subheading ``Loan Estimate,'' the estimated cash to 
close on the Loan Estimate together with the statement of whether the 
estimated amount is due from or to the consumer as disclosed under 
Sec.  1026.37(h)(2)(iv);
    (ii) Under the subheading ``Final,'' the amount due from or to the 
consumer, calculated by the sum of the amounts disclosed under 
paragraphs (e)(1)(ii), (e)(2)(ii), (e)(3)(ii), and (e)(4)(ii) of this 
section, disclosed as a positive number, together with a statement of 
whether the disclosed amount is due from or to the consumer.
    (6) Closing costs financed. Labeled ``Closing Costs Financed (Paid 
from your Loan Amount),'' the sum of the amounts disclosed under 
paragraphs (e)(1)(ii) and (e)(4)(ii) of this section, but only to the 
extent that the sum is greater than zero and less than or equal to the 
sum disclosed under paragraph (h)(1) of this section minus the sum 
disclosed under paragraph (h)(2) of this section designated borrower-
paid before closing.
    (f) Closing cost details; loan costs. Under the master heading 
``Closing Cost Details'' with columns stating whether the charge was 
borrower-paid at or before closing, seller-paid at or before closing, 
or paid by others, all loan costs associated with the transaction, 
listed in a table under the heading ``Loan Costs.'' The table shall 
contain the items and amounts listed under four subheadings, described 
in paragraphs (f)(1) through (5) of this section.
    (1) Origination charges. Under the subheading ``Origination 
Charges,'' and in the applicable columns as described in paragraph (f) 
of this section, an itemization of each amount paid for charges 
described in Sec.  1026.37(f)(1), the amount of compensation paid by 
the creditor to a third-party loan originator along with the name of 
the loan originator ultimately receiving the payment, and the total of 
all such itemized amounts that are designated borrower-paid at or 
before closing.
    (2) Services borrower did not shop for. Under the subheading 
``Services Borrower Did Not Shop For'' and in the applicable columns as 
described in paragraph (f) of this section, an itemization of the 
services and corresponding costs for each of the settlement services 
required by the creditor for which the consumer did not shop in 
accordance with Sec.  1026.19(e)(1)(vi)(A) and that are provided by 
persons other than the creditor or mortgage broker, the name of the 
person ultimately receiving the payment for each such amount, and the 
total of all such itemized amounts that are designated borrower-paid at 
or before closing. Items that were disclosed pursuant to Sec.  
1026.37(f)(3) must be disclosed under this paragraph (f)(2) if the 
consumer was provided a written list of settlement service providers 
under Sec.  1026.19(e)(1)(vi)(C) and the consumer selected a settlement 
service provider contained on that written list.
    (3) Services borrower did shop for. Under the subheading ``Services 
Borrower Did Shop For'' and in the applicable column as described in 
paragraph (f) of this section, an itemization of the services and 
corresponding costs for each of the settlement services required by the 
creditor for which the consumer shopped in accordance with Sec.  
1026.19(e)(1)(vi)(A) and that are provided by persons other than the 
creditor or mortgage broker, the name of the person ultimately 
receiving the payment for each such amount, and the total of all such 
itemized costs that are designated borrower-paid at or before closing. 
Items that were disclosed pursuant to Sec.  1026.37(f)(3) must be 
disclosed under this paragraph (f)(3) if the consumer was provided a 
written list of settlement service providers under Sec.  
1026.19(e)(1)(vi)(C) and the consumer did not select a settlement 
service provider contained on that written list.

[[Page 80123]]

    (4) Total loan costs. Under the subheading ``Total Loan Costs 
(Borrower-Paid),'' the sum of the amounts disclosed as borrower-paid 
pursuant to paragraph (f)(5) of this section.
    (5) Subtotal of loan costs. The sum of loan costs, calculated by 
totaling the amounts described in paragraphs (f)(1) through (3) of this 
section for costs designated borrower-paid at or before closing, 
labeled ``Loan Costs Subtotals.''
    (g) Closing cost details; other costs. Under the master heading 
``Closing Cost Details'' disclosed pursuant to paragraph (f) of this 
section, with columns stating whether the charge was borrower-paid at 
or before closing, seller-paid at or before closing, or paid by others, 
all costs in connection with the transaction, other than those 
disclosed under paragraph (f) of this section, listed in a table with a 
heading disclosed as ``Other Costs.'' The table shall contain the items 
and amounts listed under five subheadings, described in paragraphs 
(g)(1) through (6) of this section.
    (1) Taxes and other government fees. Under the subheading ``Taxes 
and Other Government Fees,'' and in the applicable column as described 
in paragraph (g) of this section, an itemization of each amount that is 
expected to be paid to State and local governments for taxes and 
government fees and the total of all such itemized amounts that are 
designated borrower-paid at or before closing, as follows:
    (i) Recording fees and the amounts paid in the applicable columns; 
and
    (ii) An itemization of transfer taxes, with the name of the 
government entity assessing the transfer tax.
    (2) Prepaids. Under the subheading ``Prepaids'' and in the 
applicable column as described in paragraph (g) of this section, an 
itemization of each amount for charges described in Sec.  
1026.37(g)(2), the name of the person ultimately receiving the payment 
or government entity assessing the property tax, provided that the 
person ultimately receiving the payment need not be disclosed for the 
disclosure required by Sec.  1026.37(g)(2)(iii) when disclosed pursuant 
to this paragraph, and the total of all such itemized amounts that are 
designated borrower-paid at or before closing.
    (3) Initial escrow payment at closing. Under the subheading 
``Initial escrow payment at closing'' and in the applicable column as 
described in paragraph (g) of this section, an itemization of each 
amount for charges described in Sec.  1026.37(g)(3), the applicable 
aggregate adjustment pursuant to 12 CFR 1024.17(d)(2) along with the 
label ``aggregate adjustment,'' and the total of all such itemized 
amounts that are designated borrower-paid at or before closing.
    (4) Other. Under the subheading ``Other'' and in the applicable 
column as described in paragraph (g) of this section, an itemization of 
each amount for charges in connection with the transaction that are in 
addition to the charges disclosed under paragraphs (f) and (g)(1) 
through (3) for services that are required or obtained in the real 
estate closing by the consumer, the seller, or other party, the name of 
the person ultimately receiving the payment, and the total of all such 
itemized amounts that are designated borrower-paid at or before 
closing.
    (i) For any cost that is a component of title insurance services, 
the introductory description ``Title --'' shall appear at the beginning 
of the label for that actual cost.
    (ii) The parenthetical description ``(optional)'' shall appear at 
the end of the label for costs designated borrower-paid at or before 
closing for any premiums paid for separate insurance, warranty, 
guarantee, or event-coverage products.
    (5) Total other costs. Under the subheading ``Total Other Costs 
(Borrower-Paid),'' the sum of the amounts disclosed as borrower-paid 
pursuant to paragraph (g)(6) of this section.
    (6) Subtotal of costs. The sum of other costs, calculated by 
totaling the costs disclosed in paragraphs (g)(1) through (4) of this 
section designated borrower-paid at or before closing, labeled ``Other 
Costs Subtotals.''
    (h) Closing cost totals. (1) The sum of the costs disclosed as 
borrower-paid pursuant to paragraph (h)(2) of this section and the 
amount disclosed in paragraph (h)(3) of this section, under the 
subheading ``Total Closing Costs (Borrower-Paid).''
    (2) The sum of the amounts disclosed in paragraphs (f)(5) and 
(g)(6) of this section, designated borrower-paid at or before closing, 
and the sum of the costs designated seller-paid at or before closing or 
paid by others disclosed pursuant to paragraphs (f) and (g) of this 
section, labeled ``Closing Costs Subtotals.''
    (3) The amount described in Sec.  1026.37(g)(6)(ii) as a negative 
number, labeled ``Lender Credits'' and designated borrower-paid at 
closing, and if a refund is provided pursuant to Sec.  
1026.19(f)(2)(v), a statement that this amount includes a credit for an 
amount that exceeds the limitations on increases in closing costs under 
Sec.  1026.19(e)(3), and the amount of such credit under Sec.  
1026.19(f)(2)(v).
    (4) The services and costs disclosed pursuant to paragraphs (f) and 
(g) of this section on the Closing Disclosure shall be labeled using 
terminology that describes the item disclosed, in a manner that is 
consistent with the descriptions or prescribed labels, as applicable, 
used for such items on the Loan Estimate pursuant to Sec.  1026.37. The 
creditor must also list the items on the Closing Disclosure in the same 
sequential order as on the Loan Estimate pursuant to Sec.  1026.37.
    (i) Calculating cash to close. In a separate table, under the 
heading ``Calculating Cash to Close,'' together with the statement 
``Use this table to see what has changed from your Loan Estimate'':
    (1) Total closing costs. (i) Under the subheading ``Loan 
Estimate,'' the ``Total Closing Costs'' disclosed on the Loan Estimate 
under Sec.  1026.37(h)(1)(i), labeled using that term.
    (ii) Under the subheading ``Final,'' the amount disclosed under 
paragraph (h)(1) of this section.
    (iii) Under the subheading ``Did this change?,'' disclosed more 
prominently than the other disclosures under this paragraph (i)(1):
    (A) If the amount disclosed under paragraph (i)(1)(ii) of this 
section is different than the amount disclosed under paragraph 
(i)(1)(i) of this section (unless the difference is due to rounding):
    (1) A statement of that fact;
    (2) If the difference in the ``Total Closing Costs'' is 
attributable to differences in itemized charges that are included in 
either or both subtotals, a statement that the consumer should see the 
total loan costs and total other costs subtotals disclosed under 
paragraphs (f)(4) and (g)(5) of this section (together with references 
to such disclosures), as applicable; and
    (3) If the increase exceeds the limitations on increases in closing 
costs under Sec.  1026.19(e)(3), a statement that such increase exceeds 
the legal limits by the dollar amount of the excess, and if any refund 
is provided pursuant to Sec.  1026.19(f)(2)(v), a statement directing 
the consumer to the disclosure required under paragraph (h)(3) of this 
section. Such dollar amount shall equal the sum total of all excesses 
of the limitations on increases in closing costs under Sec.  
1026.19(e)(3), taking into account the different methods of calculating 
excesses of the limitations on increases in closing costs under Sec.  
1026.19(e)(3)(i) and (ii).
    (B) If the amount disclosed under paragraph (i)(1)(ii) of this 
section is

[[Page 80124]]

equal to the amount disclosed under paragraph (i)(1)(i) of this 
section, a statement of that fact.
    (2) Closing costs paid before closing. (i) Under the subheading 
``Loan Estimate,'' the dollar amount ``$0,'' labeled ``Closing Costs 
Paid Before Closing.''
    (ii) Under the subheading ``Final,'' the amount of ``Total Closing 
Costs'' disclosed under paragraph (h)(2) of this section and designated 
as borrower-paid before closing, stated as a negative number.
    (iii) Under the subheading ``Did this change?,'' disclosed more 
prominently than the other disclosures under this paragraph (i)(2):
    (A) If the amount disclosed under paragraph (i)(2)(ii) of this 
section is different than the amount disclosed under paragraph 
(i)(2)(i) of this section (unless the difference is due to rounding), a 
statement of that fact, along with a statement that the consumer paid 
such amounts prior to consummation of the transaction; or
    (B) If the amount disclosed under paragraph (i)(2)(ii) of this 
section is equal to the amount disclosed under paragraph (i)(2)(i) of 
this section, a statement of that fact.
    (3) Closing costs financed. (i) Under the subheading ``Loan 
Estimate,'' the amount disclosed under Sec.  1026.37(h)(1)(ii), labeled 
``Closing Costs Financed (Paid from your Loan Amount).''
    (ii) Under the subheading ``Final,'' the actual amount of the 
closing costs that are to be paid out of loan proceeds, if any, stated 
as a negative number.
    (iii) Under the subheading ``Did this change?,'' disclosed more 
prominently than the other disclosures under this paragraph (i)(3):
    (A) If the amount disclosed under paragraph (i)(3)(ii) of this 
section is different than the amount disclosed under paragraph 
(i)(3)(i) of this section (unless the difference is due to rounding), a 
statement of that fact, along with a statement that the consumer 
included the closing costs in the loan amount, which increased the loan 
amount; or
    (B) If the amount disclosed under paragraph (i)(3)(ii) of this 
section is equal to the amount disclosed under paragraph (i)(3)(i) of 
this section, a statement of that fact.
    (4) Down payment/funds from borrower. (i) Under the subheading 
``Loan Estimate,'' the amount disclosed under Sec.  1026.37(h)(1)(iii), 
labeled ``Down Payment/Funds from Borrower.''
    (ii) Under the subheading ``Final'':
    (A) In a transaction that is a purchase as defined in Sec.  
1026.37(a)(9)(i), the amount of the difference between the purchase 
price of the property and the principal amount of the credit extended, 
stated as a positive number, labeled ``Down Payment/Funds from 
Borrower''; or
    (B) In a transaction other than the type described in paragraph 
(i)(4)(ii)(A) of this section, the ``Funds from Borrower'' as 
determined in accordance with paragraph (i)(6)(iv) of this section, 
labeled ``Down Payment/Funds from Borrower.''
    (iii) Under the subheading ``Did this change?,'' disclosed more 
prominently than the other disclosures under this paragraph (i)(4):
    (A) If the amount disclosed under paragraph (i)(4)(ii) of this 
section is different than the amount disclosed under paragraph 
(i)(4)(i) of this section (unless the difference is due to rounding), a 
statement of that fact, along with a statement that the consumer 
increased or decreased this payment and that the consumer should see 
the details disclosed under paragraph (j)(1) or (j)(2) of this section, 
as applicable; or
    (B) If the amount disclosed under paragraph (i)(4)(ii) of this 
section is equal to the amount disclosed under paragraph (i)(4)(i) of 
this section, a statement of that fact.
    (5) Deposit. (i) Under the subheading ``Loan Estimate,'' the amount 
disclosed under Sec.  1026.37(h)(1)(iv), labeled ``Deposit.''
    (ii) Under the subheading ``Final,'' the amount disclosed under 
paragraph (j)(2)(ii) of this section, stated as a negative number.
    (iii) Under the subheading ``Did this change?,'' disclosed more 
prominently than the other disclosures under this paragraph (i)(5):
    (A) If the amount disclosed under paragraph (i)(5)(ii) of this 
section is different than the amount disclosed under paragraph 
(i)(5)(i) of this section (unless the difference is due to rounding), a 
statement of that fact, along with a statement that the consumer 
increased or decreased this payment, as applicable, and that the 
consumer should see the details disclosed under paragraph (j)(2)(ii) of 
this section; or
    (B) If the amount disclosed under paragraph (i)(5)(ii) of this 
section is equal to the amount disclosed under paragraph (i)(5)(i) of 
this section, a statement of that fact.
    (6) Funds for borrower. (i) Under the subheading ``Loan Estimate,'' 
the amount disclosed under Sec.  1026.37(h)(1)(v), labeled ``Funds for 
Borrower.''
    (ii) Under the subheading ``Final,'' the ``Funds for Borrower,'' 
labeled using that term, as determined in accordance with paragraph 
(i)(6)(iv) of this section.
    (iii) Under the subheading ``Did this change?,'' disclosed more 
prominently than the other disclosures under this paragraph (i)(6):
    (A) If the amount disclosed under paragraph (i)(6)(ii) of this 
section is different than the amount disclosed under paragraph 
(i)(6)(i) of this section (unless the difference is due to rounding), a 
statement of that fact, along with a statement that the consumer's 
available funds from the loan amount have increased or decreased, as 
applicable; or
    (B) If the amount disclosed under paragraph (i)(6)(ii) of this 
section is equal to the amount disclosed under paragraph (i)(6)(i) of 
this section, a statement of that fact.
    (iv) The ``Funds from Borrower'' to be disclosed under paragraph 
(i)(4)(ii)(B) of this section and ``Funds for Borrower'' to be 
disclosed under paragraph (i)(6)(ii) of this section are determined by 
subtracting the principal amount of the credit extended (excluding any 
amount disclosed pursuant to paragraph (i)(3)(ii) of this section) from 
the total amount of all existing debt being satisfied in the real 
estate closing and disclosed under paragraph (j)(1)(v) of this section 
(except to the extent the satisfaction of such existing debt is 
disclosed under paragraph (g) of this section).
    (A) If the calculation under this paragraph (i)(6)(iv) yields an 
amount that is a positive number, such amount shall be disclosed under 
paragraph (i)(4)(ii)(B) of this section, and $0 shall be disclosed 
under paragraph (i)(6)(ii) of this section.
    (B) If the calculation under this paragraph (i)(6)(iv) yields an 
amount that is a negative number, such amount shall be disclosed under 
paragraph (i)(6)(ii) of this section, stated as a negative number, and 
$0 shall be disclosed under paragraph (i)(4)(ii)(B) of this section.
    (C) If the calculation under this paragraph (i)(6)(iv) yields $0, 
$0 shall be disclosed under paragraph (i)(4)(ii)(B) of this section and 
under paragraph (i)(6)(ii) of this section.
    (7) Seller credits. (i) Under the subheading ``Loan Estimate,'' the 
amount disclosed under Sec.  1026.37(h)(1)(vi), labeled ``Seller 
Credits.''
    (ii) Under the subheading ``Final,'' the amount disclosed under 
paragraph (j)(2)(v) of this section, stated as a negative number.
    (iii) Under the subheading ``Did this change?,'' disclosed more 
prominently than the other disclosures under this paragraph (i)(7):

[[Page 80125]]

    (A) If the amount disclosed under paragraph (i)(7)(ii) of this 
section is different than the amount disclosed under paragraph 
(i)(7)(i) of this section (unless the difference is due to rounding), a 
statement of that fact, along with a statement that the consumer should 
see the details disclosed under paragraph (j)(2)(v) of this section; or
    (B) If the amount disclosed under paragraph (i)(7)(ii) of this 
section is equal to the amount disclosed under paragraph (i)(7)(i) of 
this section, a statement of that fact.
    (8) Adjustments and other credits. (i) Under the subheading ``Loan 
Estimate,'' the amount disclosed on the Loan Estimate under Sec.  
1026.37(h)(1)(vii) rounded to the nearest whole dollar, labeled 
``Adjustments and Other Credits.''
    (ii) Under the subheading ``Final,'' the amount equal to the total 
of the amounts disclosed under paragraphs (j)(1)(v) through (x) of this 
section reduced by the total of the amounts disclosed under paragraphs 
(j)(2)(vi) through (xi) of this section.
    (iii) Under the subheading ``Did this change?,'' disclosed more 
prominently than the other disclosures under this paragraph (i)(8):
    (A) If the amount disclosed under paragraph (i)(8)(ii) of this 
section is different than the amount disclosed under paragraph 
(i)(8)(i) of this section (unless the difference is due to rounding), a 
statement of that fact, along with a statement that the consumer should 
see the details disclosed under paragraphs (j)(1)(v) through (x) and 
(j)(2)(vi) through (xi) of this section; or
    (B) If the amount disclosed under paragraph (i)(8)(ii) of this 
section is equal to the amount disclosed under paragraph (i)(8)(i) of 
this section, a statement of that fact.
    (9) Cash to close. (i) Under the subheading ``Loan Estimate,'' the 
amount disclosed on the Loan Estimate under Sec.  1026.37(h)(1)(viii), 
labeled ``Cash to Close'' and disclosed more prominently than the other 
disclosures under this paragraph (i).
    (ii) Under the subheading ``Final,'' the sum of the amounts 
disclosed under paragraphs (i)(1) through (i)(8) of this section under 
the subheading ``Final,'' and disclosed more prominently than the other 
disclosures under this paragraph (i).
    (j) Summary of borrower's transaction. Under the heading 
``Summaries of Transactions,'' with a statement to ``Use this table to 
see a summary of your transaction,'' two separate tables are disclosed. 
The first table shall include, under the subheading ``Borrower's 
Transaction,'' the following information and shall satisfy the 
following requirements:
    (1) Itemization of amounts due from borrower. (i) The total amount 
due from the consumer at closing, calculated as the sum of items 
required to be disclosed by paragraph (j)(1)(ii) through (x) of this 
section, excluding items paid from funds other than closing funds as 
described in paragraph (j)(4)(i) of this section, labeled ``Due from 
Borrower at Closing'';
    (ii) The amount of the contract sales price of the property being 
sold in a purchase real estate transaction, excluding the price of any 
tangible personal property if the consumer and seller have agreed to a 
separate price for such items, labeled ``Sale Price of Property'';
    (iii) The amount of the sales price of any tangible personal 
property excluded from the contract sales price pursuant to paragraph 
(j)(1)(ii) of this section, labeled ``Sale Price of Any Personal 
Property Included in Sale'';
    (iv) The total amount of closing costs disclosed that are 
designated borrower-paid at closing, calculated pursuant to paragraph 
(h)(2) of this section, labeled ``Closing Costs Paid at Closing'';
    (v) A description and the amount of any additional items that the 
seller has paid prior to the real estate closing, but reimbursed by the 
consumer at the real estate closing, and a description and the amount 
of any other items owed by the consumer at the real estate closing not 
otherwise disclosed pursuant to paragraph (f), (g), or (j) of this 
section;
    (vi) The description ``Adjustments for Items Paid by Seller in 
Advance'';
    (vii) The prorated amount of any prepaid taxes due from the 
consumer to reimburse the seller at the real estate closing, and the 
time period corresponding to that amount, labeled ``City/Town Taxes'';
    (viii) The prorated amount of any prepaid taxes due from the 
consumer to reimburse the seller at the real estate closing, and the 
time period corresponding to that amount, labeled ``County Taxes'';
    (ix) The prorated amount of any prepaid assessments due from the 
consumer to reimburse the seller at the real estate closing, and the 
time period corresponding to that amount, labeled ``Assessments''; and
    (x) A description and the amount of any additional items paid by 
the seller prior to the real estate closing that are due from the 
consumer at the real estate closing.
    (2) Itemization of amounts already paid by or on behalf of 
borrower. (i) The sum of the amounts disclosed in this paragraphs 
(j)(2)(ii) through (xi) of this section, excluding items paid from 
funds other than closing funds as described in paragraph (j)(4)(i) of 
this section, labeled ``Paid Already by or on Behalf of Borrower at 
Closing'';
    (ii) Any amount that is paid to the seller or held in trust or 
escrow by an attorney or other party under the terms of the agreement 
for the sale of the property, labeled ``Deposit'';
    (iii) The amount of the consumer's new loan amount or first user 
loan as disclosed pursuant to paragraph (b) of this section, labeled 
``Loan Amount'';
    (iv) The amount of any existing loans that the consumer is 
assuming, or any loans subject to which the consumer is talking title 
to the property, labeled ``Existing Loan(s) Assumed or Taken Subject 
to'';
    (v) The total amount of money that the seller will provide at the 
real estate closing as a lump sum not otherwise itemized to pay for 
loan costs as determined by paragraph (f) of this section and other 
costs as determined by paragraph (g) of this section and any other 
obligations of the seller to be paid directly to the consumer, labeled 
``Seller Credit'';
    (vi) The description ``Other Credits,'' together with a description 
and amount of other items paid by or on behalf of the consumer and not 
otherwise disclosed pursuant to paragraphs (f), (g), (h), and (j)(2) of 
this section;
    (vii) The description ``Adjustments for Items Unpaid by Seller'';
    (viii) The prorated amount of any unpaid taxes due from the seller 
to reimburse the consumer at the real estate closing, and the time 
period corresponding to that amount, labeled ''City/Town Taxes'';
    (ix) The prorated amount of any unpaid taxes due from the seller to 
reimburse the consumer at the real estate closing, and the time period 
corresponding to that amount, labeled ``County Taxes'';
    (x) The prorated amount of any unpaid assessments due from the 
seller to reimburse the consumer at the real estate closing, and the 
time period corresponding to that amount, labeled ``Assessments''; and
    (xi) A description and the amount of any additional items which 
have not yet been paid and which the consumer is expected to pay after 
the real estate closing, but which are attributable in part to a period 
of time prior to the real estate closing.
    (3) Calculation of borrower's transaction. Under the label 
``Calculation'':
    (i) The amount disclosed pursuant to paragraph (j)(1)(i) of this 
section, labeled ``Total Due from Borrower at Closing'';

[[Page 80126]]

    (ii) The amount disclosed pursuant to paragraph (j)(2)(i) of this 
section, if any, disclosed as a negative number, labeled ``Total Paid 
Already by or on Behalf of Borrower at Closing''; and
    (iii) A statement that the disclosed amount is due from or to the 
consumer, and the amount due from or to the consumer at the real estate 
closing, calculated by the sum of the amounts disclosed under 
paragraphs (j)(3)(i) and (ii) of this section, labeled ``Cash to 
Close.''
    (4) Items paid outside of closing funds. (i) Costs that are not 
paid from closing funds but that would otherwise be disclosed in the 
table required pursuant to paragraph (j) of this section, should be 
marked with the phrase ``Paid Outside of Closing'' or the abbreviation 
``P.O.C.'' and include the name of the party making the payment.
    (ii) For purposes of this paragraph (j), ``closing funds'' means 
funds collected and disbursed at real estate closing.
    (k) Summary of seller's transaction. Under the heading ``Summaries 
of Transactions'' required by paragraph (j) of this section, a separate 
table under the subheading ``Seller's Transaction,'' that includes the 
following information and satisfies the following requirements:
    (1) Itemization of amounts due to seller. (i) The total amount due 
to the seller at the real estate closing, calculated as the sum of 
items required to be disclosed pursuant to paragraphs (k)(1)(ii) 
through (ix) of this section, excluding items paid from funds other 
than closing funds as described in paragraph (k)(4)(i) of this section, 
labeled ``Due to Seller at Closing'';
    (ii) The amount of the contract sales price of the property being 
sold, excluding the price of any tangible personal property if the 
consumer and seller have agreed to a separate price for such items, 
labeled ``Sale Price of Property'';
    (iii) The amount of the sales price of any tangible personal 
property excluded from the contract sales price pursuant to paragraph 
(k)(1)(ii) of this section, labeled ``Sale Price of Any Personal 
Property Included in Sale'';
    (iv) A description and the amount of other items paid to the seller 
by the consumer pursuant to the contract of sale or other agreement, 
such as charges that were not disclosed pursuant to Sec.  1026.37 on 
the Loan Estimate or items paid by the seller prior to the real estate 
closing but reimbursed by the consumer at the real estate closing;
    (v) The description ``Adjustments for Items Paid by Seller in 
Advance'';
    (vi) The prorated amount of any prepaid taxes due from the consumer 
to reimburse the seller at the real estate closing, and the time period 
corresponding to that amount, labeled ``City/Town Taxes'';
    (vii) The prorated amount of any prepaid taxes due from the 
consumer to reimburse the seller at the real estate closing, and the 
time period corresponding to that amount, labeled ``County Taxes'';
    (viii) The prorated amount of any prepaid assessments due from the 
consumer to reimburse the seller at the real estate closing, and the 
time period corresponding to that amount, labeled ``Assessments''; and
    (ix) A description and the amount of additional items paid by the 
seller prior to the real estate closing that are reimbursed by the 
consumer at the real estate closing.
    (2) Itemization of amounts due from seller. (i) The total amount 
due from the seller at the real estate closing, calculated as the sum 
of items required to be disclosed pursuant to paragraphs (k)(2)(ii) 
through (xiii) of this section, excluding items paid from funds other 
than closing funds as described in paragraph (k)(4)(i) of this section, 
labeled ``Due from Seller at Closing'';
    (ii) The amount of any excess deposit disbursed to the seller prior 
to the real estate closing, labeled ``Excess Deposit'';
    (iii) The amount of closing costs designated seller-paid at closing 
disclosed pursuant to paragraph (h)(2) of this section, labeled 
``Closing Costs Paid at Closing'';
    (iv) The amount of any existing loans that the consumer is 
assuming, or any loans subject to which the consumer is taking title to 
the property, labeled ``Existing Loan(s) Assumed or Taken Subject to'';
    (v) The amount of any loan secured by a second lien on the property 
that will be paid off as part of the real estate closing, labeled 
``Payoff of First Mortgage Loan'';
    (vi) The amount of any loan secured by a first lien on the property 
that will be paid off as part of the real estate closing, labeled 
``Payoff of Second Mortgage Loan'';
    (vii) The total amount of money that the seller will provide at the 
real estate closing as a lump sum not otherwise itemized to pay for 
loan costs as determined by paragraph (f) of this section and other 
costs as determined by paragraph (g) of this section and any other 
obligations of the seller to be paid directly to the consumer, labeled 
``Seller Credit'';
    (viii) A description and amount of any and all other obligations 
required to be paid by the seller at the real estate closing, including 
any lien-related payoffs, fees, or obligations;
    (ix) The description ``Adjustments for Items Unpaid by Seller'';
    (x) The prorated amount of any unpaid taxes due from the seller to 
reimburse the consumer at the real estate closing, and the time period 
corresponding to that amount, labeled ``City/Town Taxes'';
    (xi) The prorated amount of any unpaid taxes due from the seller to 
the consumer at the real estate closing, and the time period 
corresponding to that amount, labeled ``County Taxes'';
    (xii) The prorated amount of any unpaid assessments due from the 
seller to reimburse the consumer at the real estate closing, and the 
time period corresponding to that amount, labeled ``Assessments''; and
    (xiii) A description and the amount of any additional items which 
have not yet been paid and which the consumer is expected to pay after 
the real estate closing, but which are attributable in part to a period 
of time prior to the real estate closing.
    (3) Calculation of seller's transaction. Under the label 
``Calculation'':
    (i) The amount described in paragraph (k)(1)(i) of this section, 
labeled ``Total Due to Seller at Closing'';
    (ii) The amount described in paragraph (k)(2)(i) of this section, 
disclosed as a negative number, labeled ``Total Due from Seller at 
Closing''; and
    (iii) A statement that the disclosed amount is due from or to the 
seller, and the amount due from or to the seller at closing, calculated 
by the sum of the amounts disclosed pursuant to paragraphs (k)(3)(i) 
and (ii) of this section, labeled ``Cash.''
    (4) Items paid outside of closing funds. (i) Charges that are not 
paid from closing funds but that would otherwise be disclosed in the 
table described in paragraph (k) of this section, should be marked with 
the phrase ``Paid Outside of Closing'' or the acronym ``P.O.C.'' and 
include a statement of the party making the payment.
    (ii) For purposes of this paragraph (k), ``closing funds'' are 
defined as funds collected and disbursed at real estate closing.
    (l) Loan disclosures. Under the master heading ``Additional 
Information About This Loan'' and under the heading ``Loan 
Disclosures'':
    (1) Assumption. Under the subheading ``Assumption,'' the 
information required by Sec.  1026.37(m)(2).
    (2) Demand feature. Under the subheading ``Demand Feature,'' a 
statement of whether the legal obligation permits the creditor to 
demand early repayment of the loan and, if the statement is 
affirmative, a

[[Page 80127]]

reference to the note or other loan contract for details.
    (3) Late payment. Under the subheading ``Late Payment,'' the 
information required by Sec.  1026.37(m)(4).
    (4) Negative amortization. Under the subheading ``Negative 
Amortization (Increase in Loan Amount),'' a statement of whether the 
regular periodic payments may cause the principal balance to increase.
    (i) If the regular periodic payments do not cover all of the 
interest due, the creditor must provide a statement that the principal 
balance will increase, such balance will likely become larger than the 
original loan amount, and increases in such balance lower the 
consumer's equity in the property.
    (ii) If the consumer may make regular periodic payments that do not 
cover all of the interest due, the creditor must provide a statement 
that, if the consumer chooses a monthly payment option that does not 
cover all of the interest due, the principal balance may become larger 
than the original loan amount and the increases in the principal 
balance lower the consumer's equity in the property.
    (5) Partial payment policy. Under the subheading ``Partial 
Payments'':
    (i) If periodic payments that are less than the full amount due are 
accepted, a statement that the creditor, using the term ``lender,'' may 
accept partial payments and apply such payments to the consumer's loan;
    (ii) If periodic payments that are less than the full amount due 
are accepted but not applied to a consumer's loan until the consumer 
pays the remainder of the full amount due, a statement that the 
creditor, using the term ``lender,'' may hold partial payments in a 
separate account until the consumer pays the remainder of the payment 
and then apply the full periodic payment to the consumer's loan;
    (iii) If periodic payments that are less than the full amount due 
are not accepted, a statement that the creditor, using the term 
``lender,'' does not accept any partial payments; and
    (iv) A statement that, if the loan is sold, the new creditor, using 
the term ``lender,'' may have a different policy.
    (6) Security interest. Under the subheading ``Security Interest,'' 
a statement that the consumer is granting a security interest in the 
property securing the transaction, the property address including a zip 
code, and a statement that the consumer may lose the property if the 
consumer does not make the required payments or satisfy other 
requirements under the legal obligation.
    (7) Escrow account. Under the subheading ``Escrow Account'':
    (i) Under the reference ``For now,'' a statement that an escrow 
account may also be called an impound or trust account, a statement of 
whether the creditor has established or will establish, at or before 
consummation, an escrow account in connection with the transaction for 
the costs that will be paid using escrow account funds described in 
paragraph (l)(7)(i)(A)(1) of this section:
    (A) A statement that the creditor may be liable for penalties and 
interest if it fails to make a payment for any cost for which the 
escrow account is established, a statement that the consumer would have 
to pay such costs directly in the absence of the escrow account, and a 
table, titled ``Escrow'' that contains, if an escrow account is or will 
be established, an itemization of the following:
    (1) The total amount the consumer will be required to pay into an 
escrow account over the first year after consummation for payment of 
the charges described in Sec.  1026.37(c)(4)(ii), labeled ``Escrowed 
Property Costs over Year 1,'' together with a descriptive name of each 
such charge, calculated as the amount disclosed under paragraph 
(l)(7)(i)(A)(4) of this section multiplied by the number of periodic 
payments scheduled to be made to the escrow account during the first 
year after consummation;
    (2) The estimated amount the consumer is likely to pay during the 
first year after consummation for charges described in Sec.  
1026.37(c)(4)(ii) that are known to the creditor and that will not be 
paid using escrow account funds, labeled ``Non-Escrowed Property Costs 
over Year 1,'' together with a descriptive name of each such charge and 
a statement that the consumer may have to pay other costs that are not 
listed;
    (3) The total amount disclosed pursuant to paragraph (g)(3) of this 
section, a statement that the payment is a cushion for the escrow 
account, labeled ``Initial Escrow Payment,'' and a reference to the 
information disclosed pursuant to paragraph (g)(3) of this section;
    (4) The amount the consumer will be required to pay into the escrow 
account with each periodic payment during the first year after 
consummation for payment of the charges described in Sec.  
1026.37(c)(4)(ii), labeled ``Monthly Escrow Payment.''
    (5) A creditor complies with the requirements of paragraphs 
(l)(7)(i)(A)(1) and (l)(7)(i)(A)(4) of this section if the creditor 
bases the numerical disclosures required by those paragraphs on amounts 
derived from the escrow account analysis required under Regulation X, 
12 CFR 1024.17.
    (B) A statement of whether the consumer will not have an escrow 
account, the reason why an escrow account will not be established, a 
statement that the consumer must pay all property costs, such as taxes 
and homeowner's insurance, directly, a statement that the consumer may 
contact the creditor to inquire about the availability of an escrow 
account, and a table, titled ``No Escrow,'' that contains, if an escrow 
account will not be established, an itemization of the following:
    (1) The estimated total amount the consumer will pay directly for 
charges described in Sec.  1026.37(c)(4)(ii) during the first year 
after consummation that are known to the creditor and a statement that, 
without an escrow account, the consumer must pay the identified costs, 
possibly in one or two large payments, labeled ``Property Costs over 
Year 1''; and
    (2) The amount of any fee the creditor imposes on the consumer for 
not establishing an escrow account in connection with the transaction, 
labeled ``Escrow Waiver Fee.''
    (ii) Under the reference ``In the future'':
    (A) A statement that the consumer's property costs may change and 
that, as a result, the consumer's escrow payment may change;
    (B) A statement that the consumer may be able to cancel any escrow 
account that has been established, but that the consumer is responsible 
for directly paying all property costs in the absence of an escrow 
account; and
    (C) A description of the consequences if the consumer fails to pay 
property costs, including the actions that a State or local government 
may take if property taxes are not paid and the actions the creditor 
may take if the consumer does not pay some or all property costs, such 
as adding amounts to the loan balance, adding an escrow account to the 
loan, or purchasing a property insurance policy on the consumer's 
behalf that may be more expensive and provide fewer benefits than what 
the consumer could obtain directly.
    (m) Adjustable payment table. Under the master heading ``Additional 
Information About This Loan'' required by paragraph (l) of this 
section, and under the heading ``Adjustable Payment (AP) Table,'' the 
table required to be disclosed by Sec.  1026.37(i).
    (n) Adjustable interest rate table. Under the master heading 
``Additional

[[Page 80128]]

Information About This Loan'' required by paragraph (l) of this 
section, and under the heading ``Adjustable Interest Rate (AIR) 
Table,'' the table required to be disclosed by Sec.  1026.37(j).
    (o) Loan calculations. In a separate table under the heading ``Loan 
Calculations'':
    (1) Total of payments. The ``Total of Payments,'' using that term 
and expressed as a dollar amount, and a statement that the disclosure 
is the total the consumer will have paid after making all payments of 
principal, interest, mortgage insurance, and loan costs, as scheduled.
    (2) Finance charge. The ``Finance Charge,'' using that term and 
expressed as a dollar amount, and the following statement: ``The dollar 
amount the loan will cost you.'' The disclosed finance charge and other 
disclosures affected by the disclosed financed charge (including the 
amount financed and the annual percentage rate) shall be treated as 
accurate if the amount disclosed as the finance charge:
    (i) Is understated by no more than $100; or
    (ii) Is greater than the amount required to be disclosed.
    (3) Amount financed. The ``Amount Financed,'' using that term and 
expressed as a dollar amount, and the following statement: ``The loan 
amount available after paying your upfront finance charge.''
    (4) Annual percentage rate. The ``Annual Percentage Rate,'' using 
that term and the abbreviation ``APR'' and expressed as a percentage, 
and the following statement: ``Your costs over the loan term expressed 
as a rate. This is not your interest rate.''
    (5) Total interest percentage. The ``Total Interest Percentage,'' 
using that term and the abbreviation ``TIP'' and expressed as a 
percentage, and the following statement: ``The total amount of interest 
that you will pay over the loan term as a percentage of your loan 
amount.''
    (p) Other disclosures. Under the heading ``Other Disclosures'':
    (1) Appraisal. For transactions subject to 15 U.S.C. 1639h or 
1691(e), as implemented in this part or Regulation B, 12 CFR part 1002, 
respectively, under the subheading ``Appraisal,'' that:
    (i) If there was an appraisal of the property in connection with 
the loan, the creditor is required to provide the consumer with a copy 
at no additional cost to the consumer at least three days prior to 
consummation; and
    (ii) If the consumer has not yet received a copy of the appraisal, 
the consumer should contact the creditor using the information 
disclosed pursuant to paragraph (r) of this section.
    (2) Contract details. A statement that the consumer should refer to 
the appropriate loan document and security instrument for information 
about nonpayment, what constitutes a default under the legal 
obligation, circumstances under which the creditor may accelerate the 
maturity of the obligation, and prepayment rebates and penalties, under 
the subheading ``Contract Details.''
    (3) Liability after foreclosure. A brief statement of whether, and 
the conditions under which, the consumer may remain responsible for any 
deficiency after foreclosure under applicable State law, a brief 
statement that certain protections may be lost if the consumer 
refinances or incurs additional debt on the property, and a statement 
that the consumer should consult an attorney for additional 
information, under the subheading ``Liability after Foreclosure.''
    (4) Refinance. Under the subheading ``Refinance,'' the statement 
required by Sec.  1026.37(m)(5).
    (5) Tax deductions. Under the subheading ``Tax Deductions,'' a 
statement that, if the extension of credit exceeds the fair market 
value of the property, the interest on the portion of the credit 
extension that is greater than the fair market value of the property is 
not tax deductible for Federal income tax purposes and a statement that 
the consumer should consult a tax adviser for further information.
    (q) Questions notice. In a separate notice labeled ``Questions?'':
    (1) A statement directing the consumer to use the contact 
information disclosed under paragraph (r) of this section if the 
consumer has any questions about the disclosures required pursuant to 
Sec.  1026.19(f);
    (2) A reference to the Bureau's Web site to obtain more information 
or to submit a complaint; and the link or uniform resource locator 
address to the Web site: www.consumerfinance.gov/mortgage-closing; and
    (3) A prominent question mark.
    (r) Contact information. In a separate table, under the heading 
``Contact Information,'' the following information for each creditor 
(under the subheading ``Lender''), mortgage broker (under the 
subheading ``Mortgage Broker''), consumer's real estate broker (under 
the subheading ``Real Estate Broker (B)''), seller's real estate broker 
(under the subheading ``Real Estate Broker (S)''), and settlement agent 
(under the subheading ``Settlement Agent'') participating in the 
transaction:
    (1) Name of the person, labeled ``Name'';
    (2) Address, using that label;
    (3) Nationwide Mortgage Licensing System & Registry (NMLSR ID) 
identification number, labeled ``NMLS ID,'' or, if none, license number 
or other unique identifier issued by the applicable jurisdiction or 
regulating body with which the person is licensed and/or registered, 
labeled ``License ID,'' with the abbreviation for the State of the 
applicable jurisdiction or regulatory body stated before the word 
``License'' in the label, for the persons identified in paragraph 
(r)(1) of this section;
    (4) Name of the natural person who is the primary contact for the 
consumer with the person identified in paragraph (r)(1) of this 
section, labeled ``Contact'';
    (5) NMLSR ID, labeled ``Contact NMLS ID,'' or, if none, license 
number or other unique identifier issued by the applicable jurisdiction 
or regulating body with which the person is licensed and/or registered, 
labeled ``Contact License ID,'' with the abbreviation for the State of 
the applicable jurisdiction or regulatory body stated before the word 
``License'' in the label, for the natural person identified in 
paragraph (r)(4) of this section,
    (6) Email address for the person identified in paragraph (r)(4) of 
this section, labeled ``Email''; and
    (7) Telephone number for the person identified in paragraph (r)(4) 
of this section, labeled ``Phone.''
    (s) Signature statement. (1) At the creditor's option, under the 
heading ``Confirm Receipt,'' a line for the signatures of the consumers 
in the transaction. If the creditor provides a line for the consumer's 
signature, the creditor must disclose above the signature line the 
statement required to be disclosed under Sec.  1026.37(n)(1).
    (2) If the creditor does not provide a line for the consumer's 
signature, the statement required to be disclosed under Sec.  
1026.37(n)(2) under the heading ``Other Disclosures'' required by 
paragraph (p) of this section.
    (t) Form of disclosures--(1) General requirements. (i) The creditor 
shall make the disclosures required by this section clearly and 
conspicuously in writing, in a form that the consumer may keep. The 
disclosures also shall be grouped together and segregated from 
everything else.
    (ii) Except as provided in paragraph (t)(5), the disclosures shall 
contain only the information required by paragraphs (a) through (s) of 
this section and shall be made in the same order, and positioned 
relative to the master headings, headings, subheadings, labels, and 
similar designations in the same

[[Page 80129]]

manner, as shown in form H-25, set forth in appendix H to this part.
    (2) Headings and labels. If a master heading, heading, subheading, 
label, or similar designation contains the word ``estimated'' or a 
capital letter designation in form H-25, set forth in appendix H to 
this part, that heading, label, or similar designation shall contain 
the word ``estimated'' and the applicable capital letter designation.
    (3) Form. Except as provided in paragraph (t)(5) of this section:
    (i) For a transaction subject to Sec.  1026.19(f) that is a 
federally related mortgage loan, as defined in Regulation X, 12 CFR 
1024.2, the disclosures must be made using form H-25, set forth in 
appendix H to this part.
    (ii) For any other transaction subject to this section, the 
disclosures must be made with headings, content, and format 
substantially similar to form H-25, set forth in appendix H to this 
part.
    (iii) The disclosures required by this section may be provided to 
the consumer in electronic form, subject to compliance with the 
consumer consent and other applicable provisions of the Electronic 
Signatures in Global and National Commerce Act (15 U.S.C. 7001 et 
seq.).
    (4) Rounding--(i) Nearest dollar. The following dollar amounts are 
required to be rounded to the nearest whole dollar:
    (A) The dollar amounts required to be disclosed by paragraph (b) of 
this section that are required to be rounded by Sec.  
1026.37(o)(4)(i)(A) when disclosed under Sec.  1026.37(b)(6) and (7);
    (B) The dollar amounts required to be disclosed by paragraph (c) of 
this section that are required to be rounded by Sec.  
1026.37(o)(4)(i)(A) when disclosed under Sec.  1026.37(c)(1)(iii);
    (C) The dollar amounts required to be disclosed by paragraphs (e) 
and (i) of this section under the subheading ``Loan Estimate'';
    (D) The dollar amounts required to be disclosed by paragraph (m) of 
this section; and
    (E) The dollar amounts required to be disclosed by paragraph (c) of 
this section that are required to be rounded by Sec.  
1026.37(o)(4)(i)(C) when disclosed under Sec.  1026.37(c)(2)(iv).
    (ii) Percentages. The percentage amounts required to be disclosed 
under paragraphs (b), (f)(1)(i), (g)(2)(iii), (l)(3), (n), and (o)(5) 
of this section shall not be rounded and shall be disclosed up to two 
or three decimal places. The percentage amount required to be disclosed 
under paragraph (o)(4) of this section shall not be rounded and shall 
be disclosed up to three decimal places. If the amount is a whole 
number then the amount disclosed shall be truncated at the decimal 
point.
    (iii) Loan amount. The dollar amount required to be disclosed by 
paragraph (b) of this section as required by Sec.  1026.37(b)(1) shall 
be disclosed as an unrounded number, except that if the amount is a 
whole number then the amount disclosed shall be truncated at the 
decimal point.
    (5) Exceptions--(i) Unit-period. Wherever the form or this section 
uses ``monthly'' to describe the frequency of any payments or uses 
``month'' to describe the applicable unit-period, the creditor shall 
substitute the appropriate term to reflect the fact that the 
transaction's terms provide for other than monthly periodic payments, 
such as bi-weekly or quarterly payments.
    (ii) Lender credits. The amount required to be disclosed by 
paragraph (d)(1)(i)(D) of this section may be omitted from the form if 
the amount is zero.
    (iii) Administrative information. The creditor may insert at the 
bottom of each page under the disclosures required by this section as 
illustrated by form H-25 of appendix H to this part, any administrative 
information, text, or codes that assist in identification of the form 
or the information disclosed on the form, provided that the space 
provided on form H-25 for any of the information required by this 
section is not altered.
    (iv) Closing cost details--(A) Additional line numbers. Line 
numbers provided on form H-25 of appendix H to this part for the 
disclosure of the information required by paragraphs (f)(1) through (3) 
and (g)(1) through (4) of this section that are not used may be deleted 
and the deleted line numbers added to the space provided for any other 
of those paragraphs as necessary to accommodate the disclosure of 
additional items.
    (B) Two pages. To the extent that adding or deleting line numbers 
provided on form H-25 of appendix H to this part, as permitted by 
paragraph (t)(5)(iv)(A) of this section, does not accommodate an 
itemization of all information required to be disclosed by paragraphs 
(f) through (h) on one page, the information required to be disclosed 
by paragraphs (f) through (h) of this section may be disclosed on two 
pages, provided that the information required by paragraph (f) is 
disclosed on a page separate from the information required by paragraph 
(g). The information required by paragraph (g), if disclosed on a page 
separate from paragraph (f), shall be disclosed on the same page as the 
information required by paragraph (h).
    (v) Separation of consumer and seller information. The creditor or 
settlement agent preparing the form may use form H-25 of appendix H to 
this part for the disclosure provided to both the consumer and the 
seller, with the following modifications to separate the information of 
the consumer and seller, as necessary:
    (A) The information required to be disclosed by paragraphs (j) and 
(k) of this section may be disclosed on separate pages to the consumer 
and the seller, respectively, with the information required by the 
other paragraph left blank. The information disclosed to the consumer 
pursuant to paragraph (j) of this section must be disclosed on the same 
page as the information required by paragraph (i) of this section.
    (B) The information required to be disclosed by paragraphs (f) and 
(g) of this section with respect to costs paid by the consumer may be 
left blank on the disclosure provided to the seller.
    (C) The information required by paragraphs (a)(2), (a)(4)(iii), 
(a)(5), (b) through (d), (i), (l) through (p), (r) with respect to the 
creditor and mortgage broker, and (s)(2) of this section may be left 
blank on the disclosure provided to the seller.
    (vi) Modified version of the form for a seller or third-party. The 
information required by paragraphs (a)(2), (a)(4)(iii), (a)(5), (b) 
through (d), (f), and (g) with respect to costs paid by the consumer, 
(i), (j), (l) through (p), (q)(1), and (r) with respect to the creditor 
and mortgage broker, and (s) of this section may be deleted from the 
form provided to the seller or a third-party, as illustrated by form H-
25(I) of appendix H to this part.
    (vii) Transaction without a seller. The following modifications to 
form H-25 of appendix H to this part may be made for a transaction that 
does not involve a seller and for which the alternative tables are 
disclosed pursuant to paragraphs (d)(2) and (e) of this section, as 
illustrated by form H-25(J) of appendix H to this part:
    (A) The information required by paragraph (a)(4)(ii), and 
paragraphs (f), (g), and (h) of this section with respect to costs paid 
by the seller, may be deleted.
    (B) A table under the master heading ``Closing Cost Details'' 
required by paragraph (f) of this section may be added with the heading 
``Payoffs and Payments'' that itemizes the amounts of payments made at 
closing to other parties from the credit extended to the consumer or 
funds provided by the consumer in connection with the transaction, 
including designees of the consumer; the payees and a description

[[Page 80130]]

of the purpose of such disbursements under the subheading ``To''; and 
the total amount of such payments labeled ``Total Payoffs and 
Payments.''
    (C) The tables required to be disclosed by paragraphs (j) and (k) 
of this section may be deleted.
    (viii) Translation. The form may be translated into languages other 
than English, and creditors may modify form H-25 of appendix H to this 
part to the extent that translation prevents the headings, labels, 
designations, and required disclosure items under this section from 
fitting in the space provided on form H-25.
    (ix) Customary recitals and information. An additional page may be 
attached to the form for the purpose of including customary recitals 
and information used locally in real estate settlements.

0
21. Section 1026.39 is amended by revising paragraphs (a)(2) and (d) 
introductory text and adding paragraph (d)(5) to read as follows:


Sec.  1026.39  Mortgage transfer disclosures.

    (a) * * *
    (2) A ``mortgage loan'' means:
    (i) An open-end consumer credit transaction that is secured by the 
principal dwelling of a consumer; and
    (ii) A closed-end consumer credit transaction secured by a dwelling 
or real property.
* * * * *
    (d) Content of required disclosures. The disclosures required by 
this section shall identify the mortgage loan that was sold, assigned 
or otherwise transferred, and state the following, except that the 
information required by paragraph (d)(5) of this section shall be 
stated only for a mortgage loan that is a closed-end consumer credit 
transaction secured by a dwelling or real property other than a reverse 
mortgage transaction subject to Sec.  1026.33 of this part:
* * * * *
    (5) Partial payment policy. Under the subheading ``Partial 
Payment'':
    (i) If periodic payments that are less than the full amount due are 
accepted, a statement that the covered person, using the term 
``lender,'' may accept partial payments and apply such payments to the 
consumer's loan;
    (ii) If periodic payments that are less than the full amount due 
are accepted but not applied to a consumer's loan until the consumer 
pays the remainder of the full amount due, a statement that the covered 
person, using the term ``lender,'' may hold partial payments in a 
separate account until the consumer pays the remainder of the payment 
and then apply the full periodic payment to the consumer's loan;
    (iii) If periodic payments that are less than the full amount due 
are not accepted, a statement that the covered person, using the term 
``lender,'' does not accept any partial payments; and
    (iv) A statement that, if the loan is sold, the new covered person, 
using the term ``lender,'' may have a different policy.
* * * * *

0
22. Appendix D to part 1026 is amended by revising paragraph C of part 
II to read as follows:

Appendix D to Part 1026--Multiple Advance Construction Loans

* * * * *

Part II--Construction and Permanent Financing Disclosed as One 
Transaction

* * * * *
    C. The creditor shall disclose the repayment schedule as 
follows:
    1. For loans under paragraph A.1 of part II, other than loans 
that are subject to Sec.  1026.19(e) and (f), without reflecting the 
number or amounts of payments of interest only that are made during 
the construction period. The fact that interest payments must be 
made and the timing of such payments shall be disclosed.
    2. For loans under paragraph A.2 of part II and loans under 
paragraph A.1 of part II that are subject to Sec.  1026.19(e) and 
(f), including any payments of interest only that are made during 
the construction period.
* * * * *

0
23. Appendix H to part 1026 is amended by revising H-13 and H-15, 
adding H-24 through H-29, and revising and adding their respective 
entries to the table of contents at the beginning of the appendix in 
numerical order as follows:

Appendix H to Part 1026--Closed-End Forms and Clauses

* * * * *
H-13 Closed-End Transaction With Demand Feature Sample
* * * * *
H-15 Closed-End Graduated-Payment Transaction Sample
* * * * *
H-24(A) Mortgage Loan Transaction Loan Estimate--Model Form
H-24(B) Mortgage Loan Transaction Loan Estimate--Fixed Rate Loan 
Sample
H-24(C) Mortgage Loan Transaction Loan Estimate--Interest Only 
Adjustable Rate Loan Sample
H-24(D) Mortgage Loan Transaction Loan Estimate--Refinance Sample
H-24(E) Mortgage Loan Transaction Loan Estimate--Balloon Payment 
Sample
H-24(F) Mortgage Loan Transaction Loan Estimate--Negative 
Amortization Sample
H-24(G) Mortgage Loan Transaction Loan Estimate--Modification to 
Loan Estimate for Transaction Not Involving Seller--Model Form
H-25(A) Mortgage Loan Transaction Closing Disclosure--Model Form
H-25(B) Mortgage Loan Transaction Closing Disclosure--Fixed Rate 
Loan Sample
H-25(C) Mortgage Loan Transaction Closing Disclosure--Borrower Funds 
From Second-Lien Loan in Summaries of Transactions Sample
H-25(D) Mortgage Loan Transaction Closing Disclosure--Borrower 
Satisfaction of Seller's Second-Lien Loan Outside of Closing in 
Summaries of Transactions Sample
H-25(E) Mortgage Loan Transaction Closing Disclosure--Refinance 
Transaction Sample
H-25(F) Mortgage Loan Transaction Closing Disclosure--Refinance 
Transaction Sample (amount in excess of Sec.  1026.19(e)(3))
H-25(G) Mortgage Loan Transaction Closing Disclosure--Refinance 
Transaction With Cash From Consumer at Consummation Sample
H-25(H) Mortgage Loan Transaction Closing Disclosure--Modification 
to Closing Cost Details--Model Form
H-25(I) Mortgage Loan Transaction Closing Disclosure--Modification 
to Closing Disclosure for Disclosure Provided to Seller--Model Form
H-25(J) Mortgage Loan Transaction Closing Disclosure--Modification 
to Closing Disclosure for Transaction Not Involving Seller--Model 
Form
H-26 Mortgage Loan Transaction--Pre-Loan Estimate Statement--Model 
Form
H-27(A) Mortgage Loan Transaction --Written List of Providers--Model 
Form
H-27(B) Mortgage Loan Transaction--Sample of Written List of 
Providers
H-27(C) Mortgage Loan Transaction--Sample of Written List of 
Providers with Services You Cannot Shop For
H-28(A) Mortgage Loan Transaction Loan Estimate--Spanish Language 
Model Form
H-28(B) Mortgage Loan Transaction Loan Estimate--Spanish Language 
Purchase Sample
H-28(C) Mortgage Loan Transaction Loan Estimate--Spanish Language 
Refinance Sample
H-28(D) Mortgage Loan Transaction Loan Estimate--Spanish Language 
Balloon Payment Sample
H-28(E) Mortgage Loan Transaction Loan Estimate--Spanish Language 
Negative Amortization Sample
H-28(F) Mortgage Loan Transaction Closing Disclosure--Spanish 
Language Model Form
H-28(G) Mortgage Loan Transaction Closing Disclosure--Spanish 
Language Purchase Sample
H-28(H) Mortgage Loan Transaction Closing Disclosure--Spanish 
Language Refinance Sample
H-28(I) Mortgage Loan Transaction Loan Estimate--Modification to 
Loan Estimate for Transaction Not Involving Seller--Spanish Language 
Model Form
H-28(J) Mortgage Loan Transaction Closing Disclosure--Modification 
to Closing Disclosure for Transaction Not Involving Seller--Spanish 
Language Model Form
H-29 Escrow Cancellation Notice Model Form (Sec.  1026.20(e))
* * * * *

[[Page 80131]]

H-13--Closed-End Transaction With Demand Feature Sample

BILLING CODE 4810-AM-P
[GRAPHIC] [TIFF OMITTED] TR31DE13.004

* * * * *

H-15 Closed-End Graduated Payment Transaction Sample

[[Page 80132]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.005

* * * * *

H-24(A) Mortgage Loan Transaction Loan Estimate--Model Form

    Description: This is a blank model Loan Estimate that illustrates 
the application of the content requirements in Sec.  1026.37. This form 
provides two variations of page one, four variations of page two, and 
four variations of page three, reflecting the variable content 
requirements in Sec.  1026.37.

[[Page 80133]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.006


[[Page 80134]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.007


[[Page 80135]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.008


[[Page 80136]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.009


[[Page 80137]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.010


[[Page 80138]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.011


[[Page 80139]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.012


[[Page 80140]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.013


[[Page 80141]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.014


[[Page 80142]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.015


[[Page 80143]]



H-24(B) Mortgage Loan Transaction Loan Estimate--Fixed Rate Loan Sample

    Description: This is a sample of a completed Loan Estimate for a 
fixed rate loan. This loan is for the purchase of property at a sale 
price of $180,000 and has a loan amount of $162,000, a 30-year loan 
term, a fixed interest rate of 3.875 percent, and a prepayment penalty 
equal to 2.00 percent of the outstanding principal balance of the loan 
for the first two years after consummation of the transaction. The 
consumer has elected to lock the interest rate. The creditor requires 
an escrow account and that the consumer pay for private mortgage 
insurance.

[[Page 80144]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.016


[[Page 80145]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.017


[[Page 80146]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.018


[[Page 80147]]



H-24(C) Mortgage Loan Transaction Loan Estimate--Interest Only 
Adjustable Rate Loan Sample

    Description: This is a sample of a completed Loan Estimate for an 
adjustable rate loan with interest only payments. This loan is for the 
purchase of property at a sale price of $240,000 and has a loan amount 
of $211,000 and a 30-year loan term. For the first five years of the 
loan term, the scheduled payments cover only interest and the loan has 
an introductory interest rate that is fixed at 4.00 percent. After five 
years, the payments include principal and the interest rate adjusts 
every three years based on the value of the Monthly Treasury Average 
index plus a margin of 4.00 percent. The consumer has elected to lock 
the interest rate. The creditor does not require an escrow account with 
the loan. The creditor requires that the consumer pay for private 
mortgage insurance.

[[Page 80148]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.019


[[Page 80149]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.020


[[Page 80150]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.021


[[Page 80151]]



H-24(D) Mortgage Loan Transaction Loan Estimate--Refinance Sample

    Description: This is a sample of a completed Loan Estimate for a 
transaction that is for a refinance of an existing mortgage loan that 
secures the property, for which the consumer is estimated to receive 
funds from the transaction. The estimated property value is $180,000, 
the loan amount is $150,000, the estimated outstanding balance of the 
existing mortgage loan is $120,000, and the interest rate is 4.25 
percent. The consumer has elected to lock the interest rate. The 
creditor requires an escrow account and that the consumer pay for 
private mortgage insurance.

[[Page 80152]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.022


[[Page 80153]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.023


[[Page 80154]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.024


[[Page 80155]]



H-24(E) Mortgage Loan Transaction Loan Estimate--Balloon Payment Sample

    Description: This is a sample of the information required by Sec.  
1026.37(a) through (c) for a transaction with a loan term of seven 
years that includes a final balloon payment.
[GRAPHIC] [TIFF OMITTED] TR31DE13.025

H-24(F) Mortgage Loan Transaction Loan Estimate--Negative Amortization 
Sample

    Description: This is a sample of the information required by Sec.  
1026.37(a) and (b) for a transaction with negative amortization.

[[Page 80156]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.026

H-24(G) Mortgage Loan Transaction Loan Estimate--Modification to Loan 
Estimate for Transaction Not Involving Seller--Model Form

    Description: This is a blank model Loan Estimate that illustrates 
the application of the content requirements in Sec.  1026.37, with the 
optional alternative tables permitted by Sec.  1026.37(d)(2) and (h)(2) 
for transactions without a seller. This form provides two variations of 
page one, four variations of page two, and four variations of page 
three, reflecting the variable content requirements in Sec.  1026.37.

[[Page 80157]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.027


[[Page 80158]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.028


[[Page 80159]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.029


[[Page 80160]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.030


[[Page 80161]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.031


[[Page 80162]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.032


[[Page 80163]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.033


[[Page 80164]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.034


[[Page 80165]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.035


[[Page 80166]]



H-25(A) Mortgage Loan Transaction Closing Disclosure--Model Form

    Description: This is a blank model Closing Disclosure that 
illustrates the content requirements in Sec.  1026.38. This form 
provides three variations of page one, one page two, one page three, 
four variations of page four, and four variations of page five, 
reflecting the variable content requirements in Sec.  1026.38. This 
form does not reflect modifications permitted under Sec.  1026.38(t).

[[Page 80167]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.036


[[Page 80168]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.037


[[Page 80169]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.038


[[Page 80170]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.039


[[Page 80171]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.041


[[Page 80172]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.042


[[Page 80173]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.043


[[Page 80174]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.044


[[Page 80175]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.045


[[Page 80176]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.046


[[Page 80177]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.047


[[Page 80178]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.048


[[Page 80179]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.049


[[Page 80180]]



H-25(B) Mortgage Loan Transaction Closing Disclosure--Fixed Rate Loan 
Sample

    Description: This is a sample of a completed Closing Disclosure for 
the fixed rate loan illustrated by form H-24(B). The purpose, product, 
sale price, loan amount, loan term, and interest rate have not changed 
from the estimates provided on the Loan Estimate. The creditor requires 
an escrow account and that the consumer pay for private mortgage 
insurance for the transaction.
BILLING CODE 4810-AM-P

[[Page 80181]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.050


[[Page 80182]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.051


[[Page 80183]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.052


[[Page 80184]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.053


[[Page 80185]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.054


[[Page 80186]]



H-25(C) Mortgage Loan Transaction Closing Disclosure--Borrower Funds 
From Second-Lien Loan in Summaries of Transactions Sample

    Description: This is a sample of the information required on the 
Closing Disclosure by Sec.  1026.38(j) for disclosure of consumer funds 
from a simultaneous second-lien credit transaction not otherwise 
disclosed pursuant to Sec.  1026.38(j)(2)(iii) or (iv) that is used to 
finance part of the purchase price of the property subject to the 
transaction.
[GRAPHIC] [TIFF OMITTED] TR31DE13.055

H-25(D) Mortgage Loan Transaction Closing Disclosure--Borrower 
Satisfaction of Seller's Second-Lien Loan Outside of Closing in 
Summaries of Transactions Sample

    Description: This is a sample of the information required on the 
Closing Disclosure by Sec.  1026.38(j) and (k) for the satisfaction of 
a junior-lien transaction by the consumer, which was not paid from 
closing funds.

[[Page 80187]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.056

H-25(E) Mortgage Loan Transaction Closing Disclosure--Refinance 
Transaction Sample

    Description: This is a sample of a completed Closing Disclosure for 
the refinance transaction illustrated by form H-24(D). The purpose, 
loan amount, loan term, and interest rate have not changed from the 
estimates provided on the Loan Estimate. The outstanding balance of the 
existing mortgage loan securing the property was less than estimated on 
the Loan Estimate. The creditor requires an escrow account and that the 
consumer pay for private mortgage insurance for the transaction.

[[Page 80188]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.057


[[Page 80189]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.058


[[Page 80190]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.059


[[Page 80191]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.060


[[Page 80192]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.061


[[Page 80193]]



H-25(F) Mortgage Loan Transaction Closing Disclosure--Refinance 
Transaction Sample (Amount in Excess of Sec.  1026.19(e)(3))

    Description: This is a sample of the completed disclosures required 
by Sec.  1026.38(e) and (h) for a completed Closing Disclosure for the 
refinance transaction illustrated by form H-24(D). The Closing Costs 
have increased in excess of the good faith requirements of Sec.  
1026.19(e)(3) by $200, for which the creditor has provided a refund 
under Sec.  1026.19(f)(2)(v).
[GRAPHIC] [TIFF OMITTED] TR31DE13.062

H-25(G) Mortgage Loan Transaction Closing Disclosure--Refinance 
Transaction With Cash From Consumer at Consummation

    Description: This is a sample of a completed Closing Disclosure for 
a refinance transaction in which the consumer must pay additional funds 
to satisfy the existing mortgage loan securing the property and other 
existing debt to consummate the transaction.

[[Page 80194]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.063


[[Page 80195]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.064


[[Page 80196]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.065


[[Page 80197]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.066


[[Page 80198]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.067


[[Page 80199]]



H-25(H) Mortgage Loan Transaction Closing Disclosure--Modification to 
Closing Cost Details--Model Form

    Description: This is a blank model form of the modification to 
Closing Cost Details permitted by Sec.  1026.38(t)(5)(iv)(B).

[[Page 80200]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.068


[[Page 80201]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.069


[[Page 80202]]



H-25(I) Mortgage Loan Transaction Closing Disclosure--Modification to 
Closing Disclosure for Disclosure Provided to Seller--Model Form

    Description: This is a blank model form of the modification 
permitted by Sec.  1026.38(t)(5)(vi).

[[Page 80203]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.070


[[Page 80204]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.071


[[Page 80205]]



H-25(J) Mortgage Loan Transaction Closing Disclosure--Modification to 
Closing Disclosure for Transaction Not Involving Seller--Model Form

    Description: This is a blank model form of the alternative 
disclosures and modifications permitted by Sec.  1026.38(d)(2), (e), 
and (t)(5)(vii) for transactions without a seller.

[[Page 80206]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.072


[[Page 80207]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.073


[[Page 80208]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.074


[[Page 80209]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.075


[[Page 80210]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.076


[[Page 80211]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.077


[[Page 80212]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.078


[[Page 80213]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.079


[[Page 80214]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.080


[[Page 80215]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.081


[[Page 80216]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.082


[[Page 80217]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.083


[[Page 80218]]



H-26 Mortgage Loan Transaction--Pre-Loan Estimate Statement--Model Form

    Description: This is a model of the statement required by Sec.  
1026.19(e)(2)(ii) to be stated at the top of the front of the first 
page of a written estimate of terms or costs specific to a consumer 
that is provided to a consumer before the consumer receives the 
disclosures required under Sec.  1026.19(e)(1)(i).
[GRAPHIC] [TIFF OMITTED] TR31DE13.084

H-27(A) Mortgage Loan Transaction--Written List of Providers--Model 
Form

    Description: This is a blank model form for the written list of 
settlement service providers required by Sec.  1026.19(e)(1)(vi) and 
the statement required by Sec.  1026.19(e)(1)(vi)(C) that the consumer 
may select a settlement service provider that is not on the list.

[[Page 80219]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.085


[[Page 80220]]



H-27(B) Mortgage Loan Transaction--Sample of Written List of Providers

    Description: This is a sample of the Written List of Providers for 
the transaction in the sample Loan Estimate illustrated by form H-
24(B).

[[Page 80221]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.086


[[Page 80222]]



H-27(C) Mortgage Loan Transaction--Sample of Written List of Providers 
With Services You Cannot Shop for

    Description: This is a sample of the Written List of Providers with 
information about the providers selected by the creditor for the 
charges disclosed pursuant to Sec.  1026.37(f)(2).

[[Page 80223]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.087



[[Page 80225]]

Vol. 78

Tuesday,

No. 251

December 31, 2013

Part II





Bureau of Consumer Financial Protection





-----------------------------------------------------------------------





12 CFR Parts 1024 and 1026





Integrated Mortgage Disclosures Under the Real Estate Settlement 
Procedures Act (Regulation X) and the Truth In Lending Act (Regulation 
Z); Final Rule

  Federal Register / Vol. 78 , No. 251 / Tuesday, December 31, 2013 / 
Rules and Regulations  




[[Page 80227]]

H-28(A) Mortgage Loan Transaction Loan Estimate--Spanish Language Model 
Form

    Description: This is a blank model Loan Estimate that illustrates 
the application of the content requirements in Sec.  1026.37, and is 
translated into the Spanish language as permitted by Sec.  
1026.37(o)(5)(ii). This form provides two variations of page one, four 
variations of page two, and four variations of page three, reflecting 
the variable content requirements in Sec.  1026.37.

[[Page 80228]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.088


[[Page 80229]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.089


[[Page 80230]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.090


[[Page 80231]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.091


[[Page 80232]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.092


[[Page 80233]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.093


[[Page 80234]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.094


[[Page 80235]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.095


[[Page 80236]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.096


[[Page 80237]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.097


[[Page 80238]]



H-28(B) Mortgage Loan Transaction Loan Estimate--Spanish Language 
Purchase Sample

    Description: This is a sample of the Loan Estimate illustrated by 
form H-24(C) for a 5 Year Interest Only, 5/3 Adjustable Rate loan, 
translated into the Spanish language as permitted by Sec.  
1026.37(o)(5)(ii).

[[Page 80239]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.098


[[Page 80240]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.099


[[Page 80241]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.100


[[Page 80242]]



H-28(C) Mortgage Loan Transaction Loan Estimate--Spanish Language 
Refinance Sample

    Description: This is a sample of the Loan Estimate illustrated by 
form H-24(D) for a refinance transaction in which the consumer is 
estimated to receive funds from the transaction, translated into the 
Spanish language as permitted by Sec.  1026.37(o)(5)(ii).

[[Page 80243]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.101


[[Page 80244]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.102


[[Page 80245]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.103


[[Page 80246]]



H-28(D) Mortgage Loan Transaction Loan Estimate--Spanish Language 
Balloon Payment Sample

    Description: This is a sample of the information required by Sec.  
1026.37(a) through (c) for a transaction with a loan term of seven 
years that includes a final balloon payment illustrated by form H-
24(E), translated into the Spanish language as permitted by Sec.  
1026.37(o)(5)(ii).
[GRAPHIC] [TIFF OMITTED] TR31DE13.104

H-28(E) Mortgage Loan Transaction Loan Estimate--Spanish Language 
Negative Amortization Sample

    Description: This is a sample of the information required by Sec.  
1026.37(a) and (b) for a transaction with negative amortization 
illustrated by form H-24(F), translated into the Spanish language as 
permitted by Sec.  1026.37(o)(5)(ii).

[[Page 80247]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.105

H-28(F) Mortgage Loan Transaction Closing Disclosure--Spanish Language 
Model Form

    Description: This is a blank model Closing Disclosure that 
illustrates the content requirements in Sec.  1026.38, and is 
translated into the Spanish language as permitted by Sec.  
1026.38(t)(5)(viii). This form provides three variations of page one, 
one page two, one page three, four variations of page four, four 
variations of page five, and two variations of page six reflecting the 
variable content requirements in Sec.  1026.38. This form does not 
reflect any other modifications permitted under Sec.  1026.38(t).

[[Page 80248]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.106


[[Page 80249]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.107


[[Page 80250]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.108


[[Page 80251]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.109


[[Page 80252]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.110


[[Page 80253]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.111


[[Page 80254]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.112


[[Page 80255]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.113


[[Page 80256]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.114


[[Page 80257]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.115


[[Page 80258]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.116


[[Page 80259]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.117


[[Page 80260]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.118


[[Page 80261]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.119


[[Page 80262]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.120


[[Page 80263]]



H-28(G) Mortgage Loan Transaction Closing Disclosure--Spanish Language 
Purchase Sample

    Description: This is a sample of the Closing Disclosure illustrated 
by form H-25(B) translated into the Spanish language as permitted by 
Sec.  1026.38(t)(5)(viii).

[[Page 80264]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.121


[[Page 80265]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.122


[[Page 80266]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.123


[[Page 80267]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.124


[[Page 80268]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.125


[[Page 80269]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.126


[[Page 80270]]



H-28(H) Mortgage Loan Transaction Closing Disclosure--Spanish Language 
Refinance Sample

    Description: This is a sample of the Closing Disclosure illustrated 
by form H-25(E) translated into the Spanish language as permitted by 
Sec.  1026.38(t)(5)(viii).

[[Page 80271]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.127


[[Page 80272]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.128


[[Page 80273]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.129


[[Page 80274]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.130


[[Page 80275]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.131


[[Page 80276]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.132


[[Page 80277]]



H-28(I) Mortgage Loan Transaction Loan Estimate--Modification to Loan 
Estimate for Transaction Not Involving Seller--Spanish Language Model 
Form

    Description: This is a blank model Loan Estimate that illustrates 
form H-24(G), with the optional alternative disclosures permitted by 
Sec.  1026.37(d)(2) and (h)(2) for transactions without a seller, 
translated into the Spanish language as permitted by Sec.  
1026.37(o)(5)(ii).

[[Page 80278]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.133


[[Page 80279]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.134


[[Page 80280]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.135


[[Page 80281]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.136


[[Page 80282]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.137


[[Page 80283]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.138


[[Page 80284]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.139


[[Page 80285]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.140


[[Page 80286]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.141


[[Page 80287]]



H-28(J) Mortgage Loan Transaction Closing Disclosure--Modification to 
Closing Disclosure for Transaction Not Involving Seller--Spanish 
Language Model Form

    Description: This is a blank model Closing Disclosure that 
illustrates form H-25(J), with the alternative disclosures under Sec.  
1026.38(d)(2), (e), and (t)(5)(vii) for transactions without a seller, 
translated into the Spanish language as permitted by Sec.  
1026.38(t)(5)(viii).

[[Page 80288]]

[GRAPHIC] [TIFF OMITTED] TR31DE13.142


[[Page 80289]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.143


[[Page 80290]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.144


[[Page 80291]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.145


[[Page 80292]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.146


[[Page 80293]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.147


[[Page 80294]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.148


[[Page 80295]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.149


[[Page 80296]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.150


[[Page 80297]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.151


[[Page 80298]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.152


[[Page 80299]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.153


[[Page 80300]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.154


[[Page 80301]]


[GRAPHIC] [TIFF OMITTED] TR31DE13.155


[[Page 80302]]



H-29 Escrow Cancellation Notice Model Form (Sec.  1026.20(e))

    Description: This is a blank model form of the disclosures required 
by Sec.  1026.20(e).
[GRAPHIC] [TIFF OMITTED] TR31DE13.156

BILLING CODE 4810-AM-C

0
24. In Supplement I to Part 1026:
0
A. Under Section 1026.1--Authority, Purpose, Coverage, Organization, 
Enforcement and Liability:
0
1. Under the subheading 1(c) Coverage, paragraph 1(c)(5)-1 is removed 
and the subheading Paragraph 1(c)(5) and paragraph 1 under that 
subheading are added.
0
2. The subheading 1(d) Organization, the subheading Paragraph 1(d)(5) 
and paragraph 1 under that subheading are added.
0
B. Under Section 1026.2--Definitions and Rules of Construction:
0
i. The subheading 2(a)(3) Application and paragraphs 1, 2, and 3 under 
that subheading are added.
0
ii. Under subheading 2(a)(6) Business day, paragraph 2 is revised.
0
iii. Under subheading 2(a)(25) Security interest, paragraph 2 is 
revised.
0
C. Under Section 1026.3--Exempt Transactions:
0
i. Under subheading 3(a) Business, commercial, agricultural, or 
organizational credit, paragraphs 9 and 10 are revised.
0
ii. The subheading 3(h) Partial exemption for certain mortgage loans 
and paragraphs 1. and 2. under that subheading are added.
0
D. Under Section 1026.17--General Disclosure Requirements:
0
i. Paragraph 1 is added.
0
ii. Under subheading 17(a) Form of disclosures, subheading Paragraph 
17(a)(1), paragraph 7 is revised.
0
iii. Under subheading 17(c) Basis of disclosures and use of estimates:
0
a. Under subheading Paragraph 17(c)(1), paragraphs 1, 2, 3, 4, 5, 8, 
10, 11, and 12 are revised and paragraph 19 is added.

[[Page 80303]]

0
b. Under subheading Paragraph 17(c)(2)(i), paragraphs 1, 2, and 3 are 
revised.
0
c. Under subheading Paragraph 17(c)(2)(ii), paragraph 1 is revised.
0
d. Under subheading Paragraph 17(c)(4), paragraph 1 is revised.
0
e. Under subheading Paragraph 17(c)(5), paragraphs 2, 3, and 4 are 
revised.
0
iv. Under subheading 17(d) Multiple creditors; multiple consumers, 
paragraph 2 is revised.
0
v. Under subheading 17(e) Effect of subsequent events, paragraph 1 is 
revised.
0
vi. Under subheading 17(f) Early disclosures, paragraphs 1, 2, 3, and 4 
are revised.
0
vii. Under subheading 17(g) Mail or telephone orders--delay in 
disclosures, paragraph 1 is revised.
0
viii. Under subheading 17(h) Series of sales--delay in disclosures, 
paragraph 1 is revised.
0
E. Under Section 1026.18--Content of Disclosures:
0
i. Paragraph 3 is added.
0
ii. Under subheading 18(b) Amount financed:
0
a. Paragraph 2 is removed.
0
ii. Under subheading 18(c) Itemization of amount financed:
0
a. Paragraph 4 is revised.
0
b. Under subheading Paragraph 18(c)(1)(iv), paragraph 2 is revised.
0
iii. Under subheading 18(g) Payment schedule:
0
a. Paragraphs 4 and 6 are revised.
0
b. Paragraph 5 is removed and reserved.
0
c. Under subheading Paragraph 18(g)(2), paragraphs 1 and 2 are revised.
0
iv. Under subheading 18(k) Prepayment:
0
a. Paragraphs 1, 2, and 3 are revised.
0
b. Under subheading Paragraph 18(k)(1), paragraph 1 is revised and 
paragraph 2 is added.
0
c. Under subheading Paragraph 18(k)(2), paragraph 1 is revised.
0
v. Under subheading 18(r) Required deposit, paragraph 6.vi is removed 
and reserved.
0
vi. Under subheading 18(s) Interest rate and payment summary for 
mortgage transactions:
0
a. Paragraph 1. is revised and paragraph 4 is added.
0
b. Under subheading 18(s)(3) Payments for amortizing loans, subheading 
Paragraph 18(s)(3)(i)(C), paragraphs 1 and 2 are revised.
0
c. Under subheading 18(s)(6) Special disclosures for loans with 
negative amortization, paragraph 1 is revised.
0
F. Under Section 1026.19--Certain Mortgage and Variable-Rate 
Transactions:
0
i. Under subheading 19(a)(1)(i) Time of disclosures, paragraph 1 is 
revised.
0
ii. Under subheading 19(a)(5) Timeshare plans:
0
a. The subheading 19(a)(5) Timeshare plans is removed.
0
b. The subheading Paragraph 19(a)(5)(ii) and paragraphs 1, 2, 3, 4, and 
5 under that subheading are removed.
0
c. The subheading Paragraph 19(a)(5)(iii) and paragraphs 1 and 2 under 
that subheading are removed.
0
iii. New subheadings 19(e) Mortgage loans secured by real property--
Early disclosures, 19(f) Mortgage loans secured by real property--Final 
disclosures, and 19(g) Special information booklet at time of 
application are added.
0
G. Under Section 1026.20--Disclosure Requirements Regarding Post-
Consummation Events:
0
i. New subheading 20(e) Escrow account cancellation notice for certain 
mortgage transactions is added.
0
H. Under Section 1026.22--Determination of Annual Percentage Rate, 
subheading 22(a) Accuracy of annual percentage rate, subheading 
22(a)(4) Mortgage loans, paragraph 1 is revised.
0
I. Under Section 1026.24--Advertising, subheading 24(d) Advertisement 
of terms that require additional disclosures, subheading 24(d)(2) 
Additional terms, paragraph 2 is revised.
0
J. Under Section 1026.25--Record Retention, subheading 25(c) Records 
related to certain requirements for mortgage loans, the subheading 
25(c)(1) Records related to requirements for loans secured by real 
property and paragraphs 1 and 2 under that subheading are added.
0
K. Under Section 1026.28--Effect on State Laws, subheading 28(a) 
Inconsistent disclosure requirements, paragraph 1 is revised.
0
L. Under Section 1026.29--State Exemptions, subheading 29(a) General 
rule, paragraphs 2 and 4 are revised.
0
M. New Section 1026.37--Content of Disclosures for Certain Mortgage 
Transactions (Loan Estimate) is added.
0
N. New Section 1026.38--Content of Disclosures for Certain Mortgage 
Transactions (Closing Disclosure) is added.
0
O. Under Section 1026.39--Mortgage transfer disclosures, subheading 
39(d) Content of required disclosures:
0
i. Paragraph 2 is added.
0
ii. The subheading Paragraph 39(d)(5) and paragraph 1 under that 
subheading are added.
0
P. Under Appendix D--Multiple-Advance Construction Loans, paragraphs 6 
and 7 are revised.
0
Q. Under Appendices G and H--Open-End and Closed-End Model Forms and 
Clauses, paragraph 1 is revised.
0
R. The subheading Appendix H--Closed-End Model Forms and Clauses is 
revised.
0
i. Paragraphs 16 and 19 are revised.
0
ii. Paragraphs 29 and 30 are added.
    The revisions and additions read as follows:

Supplement I to Part 1026--Official Interpretations

* * * * *

Subpart A--General

Section 1026.1--Authority, Purpose, Coverage, Organization, Enforcement 
and Liability 1(c) Coverage.

* * * * *
    Paragraph 1(c)(5).
    1. Exemption for certain mortgage transactions. Section 
1026.1(c)(5) implements sections 128(a)(16) through (19), 128(b)(4), 
129C(f)(1), 129C(g)(2) and (3), 129C(h), 129D(h), 129D(j)(1)(A), and 
129D(j)(1)(B) of the Truth in Lending Act and section 4(c) of the Real 
Estate Settlement Procedures Act, by exempting persons from the 
disclosure requirements of those sections, except in certain 
transactions. The exemptions do not apply to certain transactions for 
which the disclosure requirements are implemented in other parts of 
Regulation Z. Sections 1026.37 and 1026.38 implement sections 
128(a)(16) through (19), 128(b)(4), 129C(f)(1), 129C(g)(2) and (3), 
129D(h), and 129D(j)(1)(A) of the Truth in Lending Act and section 4(c) 
of the Real Estate Settlement Procedures Act for transactions subject 
to Sec.  1026.19(e) and (f). Section 1026.38(l)(5) implements the 
disclosure requirements of section 129C(h) of the Truth in Lending Act 
for transactions subject to Sec.  1026.19(f). Section 1026.39(d)(5) 
implements the disclosure requirements of section 129C(h) of the Truth 
in Lending Act for transactions subject to Sec.  1026.39(d)(5). Section 
1026.20(e) implements the disclosure requirements of section 
129D(j)(1)(B) of the Truth in Lending Act for transactions subject to 
Sec.  1026.20(e). Section 1026.1(c)(5) does not exempt any person from 
any other requirement of this part, Regulation X (12 CFR part 1024), 
the Truth in Lending Act, or the Real Estate Settlement Procedures Act.
    1(d) Organization.
    Paragraph 1(d)(5).
    1. Effective date. The Bureau's revisions to Regulation X and 
Regulation Z published on December 31, 2013 (the TILA-RESPA Final 
Rule), apply to covered loans (closed-end

[[Page 80304]]

credit transactions secured by real property) for which the creditor or 
mortgage broker receives an application on or after August 1, 2015 (the 
``effective date''), except that new Sec.  1026.19(e)(2), the 
amendments to Sec.  1026.28(a)(1), and the amendments to the commentary 
to Sec.  1026.29, become effective on August 1, 2015 without respect to 
whether an application has been received. The provisions of Sec.  
1026.19(e)(2) apply prior to a consumer's receipt of the disclosures 
required by Sec.  1026.19(e)(1)(i), and therefore, restrict activity 
that may occur prior to receipt of an application by a creditor or 
mortgage broker under Sec.  1026.19(e). These provisions include Sec.  
1026.19(e)(2)(i), which restricts the fees that may be imposed on a 
consumer, Sec.  1026.19(e)(2)(ii), which requires a statement to be 
included on written estimates of terms or costs specific to a consumer, 
and Sec.  1026.19(e)(2)(iii), which prohibits creditors from requiring 
the submission of documents verifying information related to the 
consumer's application. Accordingly, the provisions under Sec.  
1026.19(e)(2) are effective on August 1, 2015, without respect to 
whether an application has been received on that date. In addition, the 
amendments to Sec.  1026.28 and the commentary to Sec.  1026.29 govern 
the preemption of State laws and thus, the amendments to those 
provisions and associated commentary made by the TILA-RESPA Final Rule 
are effective on August 1, 2015, without respect to whether an 
application has been received on that date. The following examples 
illustrate the application of the effective date for the TILA-RESPA 
Final Rule.
    i. General. Assume a creditor receives an application, as defined 
under Sec.  1026.2(a)(3) of the TILA-RESPA Final Rule, for a 
transaction subject to Sec.  1026.19(e) and (f) on August 1, 2015, and 
that consummation of the transaction occurs on August 31, 2015. The 
amendments of the TILA-RESPA Final Rule, including the requirements to 
provide the Loan Estimate and Closing Disclosure under Sec.  1026.19(e) 
and (f), apply to the transaction. The creditor would also be required 
to provide the special information booklet under Sec.  1026.19(g) of 
the TILA-RESPA Final Rule, as applicable. Assume a creditor receives an 
application, as defined under Sec.  1026.2(a)(3) of the TILA-RESPA 
Final Rule, for a transaction subject to Sec.  1026.19(e) and (f) on 
July 31, 2015, and that consummation of the transaction occurs on 
August 30, 2015. The amendments of the TILA-RESPA Final Rule, including 
the requirements to provide the Loan Estimate and Closing Disclosure 
under Sec.  1026.19(e) and (f), do not apply to the transaction, except 
that the provisions of Sec.  1026.19(e)(2), specifically Sec.  
1026.19(e)(2)(i), (e)(2)(ii), and (e)(2)(iii), do apply to the 
transaction beginning on August 1, 2015 because they become effective 
on August 1, 2015, without respect to whether an application, as 
defined under Sec.  1026.2(a)(3) of the TILA-RESPA Final Rule, has been 
received by the creditor or mortgage broker on that date. The creditor 
does not provide the Closing Disclosure so that it is received by the 
consumer at least three business days before consummation; instead, the 
creditor and the settlement agent provide the disclosures under Sec.  
1026.19(a)(2)(ii) and Sec.  1024.8, as applicable, under the Truth in 
Lending Act and the Real Estate Settlement Procedures Act, 
respectively. The requirement to provide the special information 
booklet under Sec.  1026.19(g) of the TILA-RESPA Final Rule would also 
not apply to the transaction. But the creditor would provide the 
special information booklet under Sec.  1024.6, as applicable.
    ii. Predisclosure written estimates. Assume a creditor receives a 
request from a consumer for a written estimate of terms or costs 
specific to the consumer on August 1, 2015, before the consumer submits 
an application to the creditor, and thus, before the consumer has 
received the disclosures required under Sec.  1026.19(e)(1)(i). The 
creditor, if it provides such written estimate to the consumer, must 
comply with the requirements of Sec.  1026.19(e)(2)(ii) and provide the 
required statement on the written estimate, even though the creditor 
has not received an application for a transaction subject to Sec.  
1026.19(e) and (f) on that date.
    iii. Request for preemption determination. Assume a creditor 
submits a request to the Bureau under Sec.  1026.28(a)(1) for a 
determination of whether a State law is inconsistent with the 
disclosure requirements of the TILA-RESPA Final Rule on August 1, 2015. 
Because the amendments to Sec.  1026.28(a)(1) are effective on that 
date and do not depend on whether the creditor has received an 
application as defined under Sec.  1026.2(a)(3) of the TILA-RESPA Final 
Rule, Sec.  1026.28(a)(1), as amended by the TILA-RESPA Final Rule, is 
applicable to the request on that date and the Bureau would make a 
determination based on the amendments of the TILA-RESPA Final Rule, 
including, for example, the requirements of Sec.  1026.37.

Section 1026.2--Definitions and Rules of Construction

* * * * *
    2(a)(3) Application.
    1. In general. An application means the submission of a consumer's 
financial information for purposes of obtaining an extension of credit. 
For transactions subject to Sec.  1026.19(e), (f), or (g) of this part, 
the term consists of the consumer's name, the consumer's income, the 
consumer's social security number to obtain a credit report, the 
property address, an estimate of the value of the property, and the 
mortgage loan amount sought. This definition does not prevent a 
creditor from collecting whatever additional information it deems 
necessary in connection with the request for the extension of credit. 
However, once a creditor has received these six pieces of information, 
it has an application for purposes of the requirements of Regulation Z. 
A submission may be in written or electronic format and includes a 
written record of an oral application. The following examples for a 
transaction subject to Sec.  1026.19(e), (f), or (g) are illustrative 
of this provision:
    i. Assume a creditor provides a consumer with an application form 
containing 20 questions about the consumer's credit history and the 
collateral value. The consumer submits answers to nine of the questions 
and informs the creditor that the consumer will contact the creditor 
the next day with answers to the other 11 questions. Although the 
consumer provided nine pieces of information, the consumer did not 
provide a social security number. The creditor has not yet received an 
application for purposes of Sec.  1026.2(a)(3).
    ii. Assume a creditor requires all applicants to submit 20 pieces 
of information. The consumer submits only six pieces of information and 
informs the creditor that the consumer will contact the creditor the 
next day with answers to the other 14 questions. The six pieces of 
information provided by the consumer were the consumer's name, income, 
social security number, property address, estimate of the value of the 
property, and the mortgage loan amount sought. Even though the creditor 
requires 14 additional pieces of information to process the consumer's 
request for a mortgage loan, the creditor has received an application 
for the purposes of Sec.  1026.2(a)(3) and therefore must comply with 
the relevant requirements under Sec.  1026.19.
    2. Social security number to obtain a credit report. If a consumer 
does not have a social security number, the

[[Page 80305]]

creditor may substitute whatever unique identifier the creditor uses to 
obtain a credit report on the consumer. For example, a creditor has 
obtained a social security number to obtain a credit report for 
purposes of Sec.  1026.2(a)(3)(ii) if the creditor collects a Tax 
Identification Number from a consumer who does not have a social 
security number, such as a foreign national.
    3. Receipt of credit report fees. Section 1026.19(a)(1)(iii) 
permits the imposition of a fee to obtain the consumer's credit history 
prior to the delivery of the disclosures required under Sec.  
1026.19(a)(1)(i). Section 1026.19(e)(2)(i)(B) permits the imposition of 
a fee to obtain the consumer's credit report prior to the delivery of 
the disclosures required under Sec.  1026.19(e)(1)(i). Whether, or 
when, such fees are received does not affect whether an application has 
been received for the purposes of the definition in Sec.  1026.2(a)(3) 
and the timing requirements in Sec.  1026.19(a)(1)(i) and (e)(1)(iii). 
For example, if, in a transaction subject to Sec.  1026.19(e)(1)(i), a 
creditor receives the six pieces of information identified under Sec.  
1026.2(a)(3)(ii) on Monday, June 1, but does not receive a credit 
report fee from the consumer until Tuesday, June 2, the creditor does 
not comply with Sec.  1026.19(e)(1)(iii) if it provides the disclosures 
required under Sec.  1026.19(e)(1)(i) after Thursday, June 4. The 
three-business-day period beings on Monday, June 1, the date the 
creditor received the six pieces of information. The waiting period 
does not begin on Tuesday, June 2, the date the creditor received the 
credit report fee.
* * * * *
    2(a)(6) Business day.
* * * * *
    2. Rule for rescission, disclosures for certain mortgage 
transactions, and private education loans. A more precise rule for what 
is a business day (all calendar days except Sundays and the Federal 
legal holidays specified in 5 U.S.C. 6103(a)) applies when the right of 
rescission, the receipt of disclosures for certain dwelling- or real 
estate-secured mortgage transactions under Sec. Sec.  
1026.19(a)(1)(ii), 1026.19(a)(2), 1026.19(e)(1)(iii)(B), 
1026.19(e)(1)(iv), 1026.19(e)(2)(i)(A), 1026.19(e)(4)(ii), 
1026.19(f)(1)(ii), 1026.19(f)(1)(iii), 1026.20(e)(5), 1026.31(c), or 
the receipt of disclosures for private education loans under Sec.  
1026.46(d)(4) is involved. Four Federal legal holidays are identified 
in 5 U.S.C. 6103(a) by a specific date: New Year's Day, January 1; 
Independence Day, July 4; Veterans Day, November 11; and Christmas Day, 
December 25. When one of these holidays (July 4, for example) falls on 
a Saturday, Federal offices and other entities might observe the 
holiday on the preceding Friday (July 3). In cases where the more 
precise rule applies, the observed holiday (in the example, July 3) is 
a business day.
* * * * *
    2(a)(25) Security interest.
* * * * *
    2. Exclusions. The general definition of security interest excludes 
three groups of interests: incidental interests, interests in after-
acquired property, and interests that arise solely by operation of law. 
These interests may not be disclosed with the disclosures required 
under Sec. Sec.  1026.18, 1026.19(e) and (f), and 1026.38(l)(6), but 
the creditor is not precluded from preserving these rights elsewhere in 
the contract documents, or invoking and enforcing such rights, if it is 
otherwise lawful to do so. If the creditor is unsure whether a 
particular interest is one of the excluded interests, the creditor may, 
at its option, consider such interests as security interests for 
purposes of the Truth in Lending Act (15 U.S.C. 1601 et seq.) and 
Regulation Z.
* * * * *

Section 1026.3--Exempt Transactions

* * * * *
    3(a) Business, commercial, agricultural, or organizational credit.
* * * * *
    9. Organizational credit. The exemption for transactions in which 
the borrower is not a natural person applies, for example, to loans to 
corporations, partnerships, associations, churches, unions, and 
fraternal organizations. The exemption applies regardless of the 
purpose of the credit extension and regardless of the fact that a 
natural person may guarantee or provide security for the credit. But 
see comment 3(a)-10 concerning credit extended to trusts.
    10. Trusts. Credit extended for consumer purposes to certain trusts 
is considered to be credit extended to a natural person rather than 
credit extended to an organization. Specifically:
    i. Trusts for tax or estate planning purposes. In some instances, a 
creditor may extend credit for consumer purposes to a trust that a 
consumer has created for tax or estate planning purposes (or both). 
Consumers sometimes place their assets in trust, with themselves or 
themselves and their families or other prospective heirs as 
beneficiaries, to obtain certain tax benefits and to facilitate the 
future administration of their estates. During their lifetimes, 
however, such consumers may continue to use the assets and/or income of 
such trusts as their property. A creditor extending credit to finance 
the acquisition of, for example, a consumer's dwelling that is held in 
such a trust, or to refinance existing debt secured by such a dwelling, 
may prepare the note, security instrument, and similar loan documents 
for execution by a trustee, rather than the beneficiaries of the trust. 
Regardless of the capacity or capacities in which the loan documents 
are executed, assuming the transaction is primarily for personal, 
family, or household purposes, the transaction is subject to the 
regulation because in substance (if not form) consumer credit is being 
extended.
    ii. Land trusts. In some jurisdictions, a financial institution 
financing a residential real estate transaction for an individual uses 
a land trust mechanism. Title to the property is conveyed to the land 
trust for which the financial institution itself is trustee. The 
underlying installment note is executed by the financial institution in 
its capacity as trustee and payment is secured by a trust deed, 
reflecting title in the financial institution as trustee. In some 
instances, the consumer executes a personal guaranty of the 
indebtedness. The note provides that it is payable only out of the 
property specifically described in the trust deed and that the trustee 
has no personal liability on the note. Assuming the transactions are 
primarily for personal, family, or household purposes, these 
transactions are subject to the regulation because in substance (if not 
form) consumer credit is being extended.
* * * * *
    3(h) Partial exemption for certain mortgage loans.
    1. Partial exemption. Section 1026.3(h) exempts certain 
transactions from only the disclosures required by Sec.  1026.19(e), 
(f), and (g), and not from any of the other applicable requirements of 
this part. As provided by Sec.  1026.3(h)(6), creditors must comply 
with all other applicable requirements of this part. In addition, the 
creditor must provide the disclosures required by Sec.  1026.18, even 
if the creditor would not otherwise be subject to the disclosure 
requirements of Sec.  1026.18. The consumer also has the right to 
rescind the transaction under Sec.  1026.23, to the extent that 
provision is applicable.
    2. Requirements of exemption. The conditions that the transaction 
not require the payment of interest under

[[Page 80306]]

Sec.  1026.3(h)(3) and that repayment of the amount of credit extended 
be forgiven or deferred in accordance with Sec.  1026.3(h)(4) is 
determined by the terms of the credit contract. The other requirements 
of Sec.  1026.3(h) need not be reflected in the credit contract, but 
the creditor must retain evidence of compliance with those provisions, 
as required by Sec.  1026.25(a). In particular, because the exemption 
from Sec.  1026.19(e), (f), and (g) means the consumer will not receive 
the disclosures of closing costs under Sec.  1026.37 or Sec.  1026.38, 
the creditor must have information reflecting that the total of closing 
costs imposed in connection with the transaction is less than one 
percent of the amount of credit extended and include no charges other 
than recordation, application, and housing counseling fees, in 
accordance with Sec.  1026.3(h)(5). Unless an itemization of the amount 
financed sufficiently details this requirement, the creditor must 
establish compliance with Sec.  1026.3(h)(5) by some other written 
document and retain it in accordance with Sec.  1026.25(a).
* * * * *

Subpart C--Closed End Credit

Section 1026.17--General Disclosure Requirements

    1. Rules for certain mortgage disclosures. Section 1026.17(a) and 
(b) does not apply to the disclosures required by Sec.  1026.19(e), 
(f), and (g), and Sec.  1026.20(e). For the disclosures required by 
Sec.  1026.19(e), (f), and (g), rules regarding the disclosures' form 
are found in Sec. Sec.  1026.19(g), 1026.37(o), and 1026.38(t) and 
rules regarding timing are found in Sec.  1026.19(e), (f), and (g). For 
the disclosures required by Sec.  1026.20(e), rules regarding the 
disclosures' form are found in Sec.  1026.20(e)(4) and rules regarding 
timing are found in Sec.  1026.20(e)(5).
    17(a) Form of disclosures.
    Paragraph 17(a)(1).
* * * * *
    7. Balloon payment financing with leasing characteristics. In 
certain credit sale or loan transactions, a consumer may reduce the 
dollar amount of the payments to be made during the course of the 
transaction by agreeing to make, at the end of the loan term, a large 
final payment based on the expected residual value of the property. The 
consumer may have a number of options with respect to the final 
payment, including, among other things, retaining the property and 
making the final payment, refinancing the final payment, or 
transferring the property to the creditor in lieu of the final payment. 
Such transactions may have some of the characteristics of lease 
transactions subject to Regulation M (12 CFR Part 1013), but are 
considered credit transactions where the consumer assumes the indicia 
of ownership, including the risks, burdens and benefits of ownership, 
upon consummation. These transactions are governed by the disclosure 
requirements of this part instead of Regulation M. Creditors should not 
include in the segregated Truth in Lending disclosures additional 
information. Thus, disclosures should show the large final payment in 
the payment schedule or interest rate and payment summary table under 
Sec.  1026.18(g) or (s), as applicable, and should not, for example, 
reflect the other options available to the consumer at maturity.
* * * * *
    17(c) Basis of disclosures and use of estimates.
    Paragraph 17(c)(1).
    1. Legal obligation. The disclosures shall reflect the terms to 
which the consumer and creditor are legally bound as of the outset of 
the transaction. In the case of disclosures required under Sec.  
1026.20(c), (d), and (e), the disclosures shall reflect the credit 
terms to which the consumer and creditor are legally bound when the 
disclosures are provided. The legal obligation is determined by 
applicable State law or other law. Disclosures based on the assumption 
that the consumer will abide by the terms of the legal obligation 
throughout the term of the transaction comply with Sec.  1026.17(c)(1). 
(Certain transactions are specifically addressed in this commentary. 
See, for example, the discussion of buydown transactions elsewhere in 
the commentary to Sec.  1026.17(c).) The fact that a term or contract 
may later be deemed unenforceable by a court on the basis of equity or 
other grounds does not, by itself, mean that disclosures based on that 
term or contract did not reflect the legal obligation.
    2. Modification of obligation. The legal obligation normally is 
presumed to be contained in the note or contract that evidences the 
agreement between the consumer and the creditor. But this presumption 
is rebutted if another agreement between the consumer and creditor 
legally modifies that note or contract. If the consumer and creditor 
informally agree to a modification of the legal obligation, the 
modification should not be reflected in the disclosures unless it rises 
to the level of a change in the terms of the legal obligation. For 
example:
* * * * *
    3. Third-party buydowns. In certain transactions, a seller or other 
third party may pay an amount, either to the creditor or to the 
consumer, in order to reduce the consumer's payments for all or a 
portion of the credit term. For example, a consumer and a bank agree to 
a mortgage with an interest rate of 15% and level payments over 25 
years. By a separate agreement, the seller of the property agrees to 
subsidize the consumer's payments for the first two years of the 
mortgage, giving the consumer an effective rate of 12% for that period.
    i. If the third-party buydown is reflected in the credit contract 
between the consumer and the bank, the finance charge and all other 
disclosures affected by it must take the buydown into account as an 
amendment to the contract's interest rate provision. For example, the 
annual percentage rate must be a composite rate that takes account of 
both the lower initial rate and the higher subsequent rate, and the 
disclosures required under Sec. Sec.  1026.18(g), 1026.18(s), 
1026.37(c), and 1026.38(c), as applicable, must reflect the two payment 
levels, except as otherwise provided in those paragraphs. However, the 
amount paid by the seller would not be specifically reflected in the 
disclosure of the finance charge and other disclosures affected by it 
given by the bank, since that amount constitutes seller's points and 
thus is not part of the finance charge. The seller-paid amount is 
disclosed, however, as a credit from the seller in the summaries of 
transactions disclosed pursuant to Sec.  1026.38(j) and (k).
    ii. If the third-party buydown is not reflected in the credit 
contract between the consumer and the bank and the consumer is legally 
bound to the 15% rate from the outset, the disclosure of the finance 
charge and other disclosures affected by it given by the bank must not 
reflect the seller buydown in any way. For example, the annual 
percentage rate and disclosures required under Sec. Sec.  1026.18(g), 
1026.18(s), 1026.37(c), and 1026.38(c), as applicable, would not take 
into account the reduction in the interest rate and payment level for 
the first two years resulting from the buydown. The seller-paid amount 
is, however, disclosed as a credit from the seller in the summaries of 
transactions disclosed pursuant to Sec.  1026.38(j) and (k).
    4. Consumer buydowns. In certain transactions, the consumer may pay 
an amount to the creditor to reduce the

[[Page 80307]]

payments on the transaction. Consumer buydowns must be reflected as an 
amendment to the contract's interest rate provision in the disclosure 
of the finance charge and other disclosures affected by it given for 
that transaction. To illustrate, in a mortgage transaction, the 
creditor and consumer agree to a note specifying a 14 percent interest 
rate. However, in a separate document, the consumer agrees to pay an 
amount to the creditor at consummation in return for lower payments for 
a portion of the mortgage term. The amount paid by the consumer may be 
deposited in an escrow account or may be retained by the creditor. 
Depending upon the buydown plan, the consumer's prepayment of the 
obligation may or may not result in a portion of the amount being 
credited or refunded to the consumer. In the disclosure of the finance 
charge and other disclosures affected by it given for the mortgage, the 
creditor must reflect the terms of the buydown agreement.
    i. For example:
* * * * *
    C. The disclosures under Sec. Sec.  1026.18(g) and (s), 1026.37(c), 
and 1026.38(c), as applicable, must reflect the multiple rate and 
payment levels resulting from the buydown, except as otherwise provided 
in those sections. Further, for example, the disclosures must reflect 
that the transaction is a step rate product under Sec. Sec.  
1026.37(a)(10)(B) and 1026.38(a)(5)(iii).
    ii. The rules regarding consumer buydowns do not apply to 
transactions known as ``lender buydowns.'' In lender buydowns, a 
creditor pays an amount (either into an account or to the party to whom 
the obligation is sold) to reduce the consumer's payments or interest 
rate for all or a portion of the credit term. Typically, these 
transactions are structured as a buydown of the interest rate during an 
initial period of the transaction with a higher than usual rate for the 
remainder of the term. The disclosure of the finance charge and other 
disclosures affected by it for lender buydowns should be based on the 
terms of the legal obligation between the consumer and the creditor. 
See comment 17(c)(1)-3 for the analogous rules concerning third-party 
buydowns.
    5. Split buydowns. In certain transactions, a third party (such as 
a seller) and a consumer both pay an amount to the creditor to reduce 
the interest rate. The creditor must include the portion paid by the 
consumer in the finance charge and disclose the corresponding multiple 
payment levels, except as otherwise provided in Sec. Sec.  1026.18(s), 
1026.37(c), and 1026.38(c), and composite annual percentage rate. The 
portion paid by the third party and the corresponding reduction in 
interest rate, however, should not be reflected in the disclosure of 
the finance charge and other disclosures affected by it unless the 
lower rate is reflected in the credit contract. See the discussion on 
third-party and consumer buydown transactions elsewhere in the 
commentary to Sec.  1026.17(c).
* * * * *
    8. Basis of disclosures in variable-rate transactions. Except as 
otherwise provided in Sec. Sec.  1026.18(s), 1026.37 and 1026.38, as 
applicable, the disclosures for a variable-rate transaction must be 
given for the full term of the transaction and must be based on the 
terms in effect at the time of consummation. Creditors should base the 
disclosures only on the initial rate and should not assume that this 
rate will increase, except as otherwise provided in Sec. Sec.  
1026.18(s), 1026.37 and 1026.38. For example, in a loan with an initial 
rate of 10 percent and a 5 percentage points rate cap, creditors should 
base the disclosures on the initial rate and should not assume that 
this rate will increase 5 percentage points. However, in a variable-
rate transaction with a seller buydown that is reflected in the credit 
contract, a consumer buydown, or a discounted or premium rate, 
disclosures should not be based solely on the initial terms. In those 
transactions, the disclosed annual percentage rate should be a 
composite rate based on the rate in effect during the initial period 
and the rate that is the basis of the variable-rate feature for the 
remainder of the term. See the commentary to Sec.  1026.17(c) for a 
discussion of buydown, discounted, and premium transactions and the 
commentary to Sec.  1026.19(a)(2), (e), and (f) for a discussion of the 
redisclosure in certain mortgage transactions with a variable-rate 
feature. See Sec. Sec.  1026.37(c) and 1026.38(c) for rules regarding 
disclosure of variable-rate transactions in the projected payments 
table for transactions subject to Sec.  1026.19(e) and (f).
* * * * *
    10. Discounted and premium variable-rate transactions. * * *
    i. When creditors use an initial interest rate that is not 
calculated using the index or formula for later rate adjustments, the 
disclosures should reflect a composite annual percentage rate based on 
the initial rate for as long as it is charged and, for the remainder of 
the term, the rate that would have been applied using the index or 
formula at the time of consummation. The rate at consummation need not 
be used if a contract provides for a delay in the implementation of 
changes in an index value. For example, if the contract specifies that 
rate changes are based on the index value in effect 45 days before the 
change date, creditors may use any index value in effect during the 45 
day period before consummation in calculating a composite annual 
percentage rate.
    ii. The effect of the multiple rates must also be reflected in the 
calculation and disclosure of the finance charge, total of payments, 
and the disclosures required under Sec. Sec.  1026.18(g) and (s), 
1026.37(c), 1026.37(l)(1) and (3), 1026.38(c), and 1026.38(o)(5), as 
applicable.
* * * * *
    v. Examples of discounted variable-rate transactions include:
    A. A 30-year loan for $100,000 with no prepaid finance charges and 
rates determined by the Treasury bill rate plus two percent. Rate and 
payment adjustments are made annually. Although the Treasury bill rate 
at the time of consummation is 10 percent, the creditor sets the 
interest rate for one year at 9 percent, instead of 12 percent 
according to the formula. The disclosures should reflect a composite 
annual percentage rate of 11.63 percent based on 9 percent for one year 
and 12 percent for 29 years. Reflecting those two rate levels, the 
payment schedule disclosed pursuant to Sec.  1026.18(g) should show 12 
payments of $804.62 and 348 payments of $1,025.31. Similarly, the 
disclosures required by Sec. Sec.  1026.18(s), 1026.37(c), 
1026.37(l)(1) and (3), 1026.38(c), and 1026.38(o)(5) should reflect the 
effect of this calculation. The finance charge should be $266,463.32 
and, for transactions subject to Sec.  1026.18, the total of payments 
should be $366,463.32.
    B. Same loan as above, except with a two-percent rate cap on 
periodic adjustments. The disclosures should reflect a composite annual 
percentage rate of 11.53 percent based on 9 percent for the first year, 
11 percent for the second year, and 12 percent for the remaining 28 
years. Reflecting those three rate levels, the payment schedule 
disclosed pursuant to Sec.  1026.18(g) should show 12 payments of 
$804.62, 12 payments of $950.09, and 336 payments of $1,024.34. 
Similarly, the disclosures required by Sec. Sec.  1026.18(s), 
1026.37(c), 1026.37(l)(1) and (3), 1026.38(c), and 1026.38(o)(5) should 
reflect the effect of this calculation. The finance charge should be 
$265,234.76 and, for transactions subject to

[[Page 80308]]

Sec.  1026.18, the total of payments should be $365,234.76.
    C. Same loan as above, except with a 7\1/2\ percent cap on payment 
adjustments. The disclosures should reflect a composite annual 
percentage rate of 11.64 percent, based on 9 percent for one year and 
12 percent for 29 years. Because of the payment cap, five levels of 
payments should be reflected. The payment schedule disclosed pursuant 
to Sec.  1026.18(g) should show 12 payments of $804.62, 12 payments of 
$864.97, 12 payments of $929.84, 12 payments of $999.58, and 312 
payments of $1,070.04. Similarly, the disclosures required by 
Sec. Sec.  1026.18(s), 1026.37(c), 1026.37(l)(1) and (3), 1026.38(c), 
and 1026.38(o)(5) should reflect the effect of this calculation. The 
finance charge should be $277,040.60, and, for transactions subject to 
Sec.  1026.18, the total of payments should be $377,040.60.
* * * * *
    11. Examples of variable-rate transactions. Variable-rate 
transactions include:
* * * * *
    v. ``Price level adjusted mortgages'' or other indexed mortgages 
that have a fixed rate of interest but provide for periodic adjustments 
to payments and the loan balance to reflect changes in an index 
measuring prices or inflation. Disclosures are to be based on the fixed 
interest rate, except as otherwise provided in Sec. Sec.  1026.18(s), 
1026.37, and 1026.38, as applicable.
    12. Graduated payment adjustable rate mortgages. These mortgages 
involve both a variable interest rate and scheduled variations in 
payment amounts during the loan term. For example, under these plans, a 
series of graduated payments may be scheduled before rate adjustments 
affect payment amounts, or the initial scheduled payment may remain 
constant for a set period before rate adjustments affect the payment 
amount. In any case, the initial payment amount may be insufficient to 
cover the scheduled interest, causing negative amortization from the 
outset of the transaction. In these transactions, except as otherwise 
provided in Sec. Sec.  1026.18(s), 1026.37(c), and 1026.38(c), the 
disclosures should treat these features as follows:
* * * * *
    iv. The disclosures required by Sec.  1026.18(g) and (s) reflect 
the amount of any scheduled initial payments followed by an adjusted 
level of payments based on the initial interest rate. Since some 
mortgage plans contain limits on the amount of the payment adjustment, 
the disclosures required by Sec.  1026.18(g) and (s) may require 
several different levels of payments, even with the assumption that the 
original interest rate does not increase. For transactions subject to 
Sec.  1026.19(e) and (f), see Sec.  1026.37(c) and its commentary for a 
discussion of different rules for graduated payment adjustable rate 
mortgages.
* * * * *
    19. Rebates and loan premiums. In a loan transaction, the creditor 
may offer a premium in the form of cash or merchandise to prospective 
borrowers. Similarly, in a credit sale transaction, a seller's or 
manufacturer's rebate may be offered to prospective purchasers of the 
creditor's goods or services. Such premiums and rebates must be 
reflected in accordance with the terms of the legal obligation between 
the consumer and the creditor. Thus, if the creditor is legally 
obligated to provide the premium or rebate to the consumer as part of 
the credit transaction, the disclosures should reflect its value in the 
manner and at the time the creditor is obligated to provide it.
    Paragraph 17(c)(2)(i).
    1. Basis for estimates. Except as otherwise provided in Sec. Sec.  
1026.19, 1026.37, and 1026.38, disclosures may be estimated when the 
exact information is unknown at the time disclosures are made. 
Information is unknown if it is not reasonably available to the 
creditor at the time the disclosures are made. The ``reasonably 
available'' standard requires that the creditor, acting in good faith, 
exercise due diligence in obtaining information. For example, the 
creditor must at a minimum utilize generally accepted calculation 
tools, but need not invest in the most sophisticated computer program 
to make a particular type of calculation. The creditor normally may 
rely on the representations of other parties in obtaining information. 
For example, the creditor might look to the consumer for the time of 
consummation, to insurance companies for the cost of insurance, or to 
realtors for taxes and escrow fees. The creditor may utilize estimates 
in making disclosures even though the creditor knows that more precise 
information will be available by the point of consummation. However, 
new disclosures may be required under Sec.  1026.17(f) or Sec.  
1026.19. For purposes of Sec.  1026.17(c)(2)(i), creditors must provide 
the actual amounts of the information required to be disclosed under 
Sec. Sec.  1026.37 and 1026.38, pursuant to Sec.  1026.19(e) and (f), 
subject to the estimation and redisclosure rules in those provisions.
    2. Labeling estimates. Estimates must be designated as such in the 
segregated disclosures. For the disclosures required by Sec.  
1026.19(e) and (f), use of the Loan Estimate form H-24 of appendix H to 
this part pursuant to Sec.  1026.37(o) or the Closing Disclosure form 
H-25 of appendix H to this part pursuant to Sec.  1026.38(t), 
respectively, satisfies the requirement that the disclosure state 
clearly that the disclosure is an estimate. For all other disclosures, 
even though they are based on the same assumption on which a specific 
estimated disclosure was based, the creditor has flexibility in 
labeling the estimates. Generally, only the particular disclosure for 
which the exact information is unknown is labeled as an estimate. 
However, when several disclosures are affected because of the unknown 
information, the creditor has the option of labeling either every 
affected disclosure or only the disclosure primarily affected. For 
example, when the finance charge is unknown because the date of 
consummation is unknown, the creditor must label the finance charge as 
an estimate and may also label as estimates the total of payments and 
the payment schedule. When many disclosures are estimates, the creditor 
may use a general statement, such as ``all numerical disclosures except 
the late payment disclosure are estimates,'' as a method to label those 
disclosures as estimates.
    3. Simple-interest transactions. If consumers do not make timely 
payments in a simple-interest transaction, some of the amounts 
calculated for Truth in Lending disclosures will differ from amounts 
that consumers will actually pay over the term of the transaction. 
Creditors may label disclosures as estimates in these transactions, 
except as otherwise provided by Sec.  1026.19. For example, because the 
finance charge and total of payments may be larger than disclosed if 
consumers make late payments, creditors may label the finance charge 
and total of payments as estimates. On the other hand, creditors may 
choose not to label disclosures as estimates. In all cases, creditors 
comply with Sec.  1026.17(c)(2)(i) by basing disclosures on the 
assumption that payments will be made on time and in the amounts 
required by the terms of the legal obligation, disregarding any 
possible differences resulting from consumers' payment patterns.
    Paragraph 17(c)(2)(ii).
    1. Per-diem interest. Section 1026.17(c)(2)(ii) applies to any 
numerical amount (such as the finance charge, annual percentage rate, 
or payment amount) that is affected by the

[[Page 80309]]

amount of the per-diem interest charge that will be collected at 
consummation. If the amount of per-diem interest used in preparing the 
disclosures for consummation is based on the information known to the 
creditor at the time the disclosure document is prepared, the 
disclosures are considered accurate under this rule, and affected 
disclosures are also considered accurate, even if the disclosures are 
not labeled as estimates. For example, if the amount of per-diem 
interest used to prepare disclosures is less than the amount of per-
diem interest charged at consummation, and as a result the finance 
charge is understated by $200, the disclosed finance charge is 
considered accurate even though the understatement is not within the 
$100 tolerance of Sec.  1026.18(d)(1), and the finance charge was not 
labeled as an estimate. In this example, if in addition to the 
understatement related to the per-diem interest, a $90 fee is 
incorrectly omitted from the finance charge, causing it to be 
understated by a total of $290, the finance charge is considered 
accurate because the $90 fee is within the tolerance in Sec.  
1026.18(d)(1). For purposes of transactions subject to Sec.  1026.19(e) 
and (f), the creditor shall disclose the actual amount of per diem 
interest that will be collected at consummation, subject only to the 
disclosure rules in those sections.
* * * * *
    Paragraph 17(c)(4).
    1. Payment schedule irregularities. When one or more payments in a 
transaction differ from the others because of a long or short first 
period, the variations may be ignored in disclosing the payment 
schedule pursuant to Sec.  1026.18(g), the disclosures required 
pursuant to Sec. Sec.  1026.18(s), 1026.37(c), or 1026.38(c), or the 
finance charge, annual percentage rate, and other terms. For example:
* * * * *
    Paragraph 17(c)(5).
* * * * *
    2. Future event as maturity date. An obligation whose maturity date 
is determined solely by a future event, as for example, a loan payable 
only on the sale of property, is not a demand obligation. Because no 
demand feature is contained in the obligation, demand disclosures under 
Sec.  1026.18(i) are inapplicable and demand disclosures under Sec.  
1026.38(l)(2) are answered in the negative. The disclosures should be 
based on the creditor's estimate of the time at which the specified 
event will occur and, except as otherwise provided in Sec.  1026.19(e) 
and (f), may indicate the basis for the creditor's estimate, as noted 
in the commentary to Sec.  1026.17(a).
    3. Demand after stated period. Most demand transactions contain a 
demand feature that may be exercised at any point during the term, but 
certain transactions convert to demand status only after a fixed 
period. The disclosures for a transaction that converts to demand 
status after a fixed period should be based upon the legally agreed-
upon maturity date. Thus, for example, if a mortgage containing a call 
option that the creditor may exercise during the first 30 days of the 
eighth year after loan origination is written as a 20-year obligation, 
the disclosures should be based on the 20-year term, with the demand 
feature disclosed under Sec.  1026.18(i) or Sec.  1026.38(l)(2), as 
applicable.
    4. Balloon mortgages. Balloon payment mortgages, with payments 
based on a long-term amortization schedule and a large final payment 
due after a shorter term, are not demand obligations unless a demand 
feature is specifically contained in the contract. For example, a 
mortgage with a term of five years and a payment schedule based on 20 
years would not be treated as a mortgage with a demand feature, in the 
absence of any contractual demand provisions. In this type of mortgage, 
disclosures should be based on the five-year term. See Sec. Sec.  
1026.37(c) and 1026.38(c) and their commentary for projected payment 
disclosures for balloon payment mortgages.
* * * * *
    17(d) Multiple creditors; multiple consumers.
* * * * *
    2. Multiple consumers. When two consumers are joint obligors with 
primary liability on an obligation, the disclosures may be given to 
either one of them. If one consumer is merely a surety or guarantor, 
the disclosures must be given to the principal debtor. In rescindable 
transactions, however, separate disclosures must be given to each 
consumer who has the right to rescind under Sec.  1026.23, although the 
disclosures required under Sec.  1026.19(b) need only be provided to 
the consumer who expresses an interest in a variable-rate loan program. 
When two consumers are joint obligors with primary liability on an 
obligation, the early disclosures required by Sec.  1026.19(a), (e), or 
(g), as applicable, may be provided to any one of them. In rescindable 
transactions, the disclosures required by Sec.  1026.19(f) must be 
given separately to each consumer who has the right to rescind under 
Sec.  1026.23. In transactions that are not rescindable, the 
disclosures required by Sec.  1026.19(f) may be provided to any 
consumer with primary liability on the obligation. See Sec. Sec.  
1026.2(a)(11), 1026.17(b), 1026.19(a), 1026.19(f), and 1026.23(b).
    17(e) Effect of subsequent events.
    1. Events causing inaccuracies. Subject to Sec.  1026.19(e) and 
(f), inaccuracies in disclosures are not violations if attributable to 
events occurring after the disclosures are made. For example, when the 
consumer fails to fulfill a prior commitment to keep the collateral 
insured and the creditor then provides the coverage and charges the 
consumer for it, such a change does not make the original disclosures 
inaccurate. The creditor may, however, be required to make new 
disclosures under Sec.  1026.17(f) or Sec.  1026.19 if the events 
occurred between disclosure and consummation, in some cases after 
consummation under Sec.  1026.19(f), or under Sec.  1026.20 if the 
events occurred after consummation. For rules regarding permissible 
changes to the information required to be disclosed by Sec.  1026.19(e) 
and (f), see Sec.  1026.19(e)(3) and (f)(2) and their commentary.
    17(f) Early disclosures.
    1. Change in rate or other terms. Redisclosure is required for 
changes that occur between the time disclosures are made and 
consummation if the annual percentage rate in the consummated 
transaction exceeds the limits prescribed in Sec.  1026.17(f) even if 
the prior disclosures would be considered accurate under the tolerances 
in Sec.  1026.18(d) or 1026.22(a). To illustrate:
    i. Transactions not secured by real property. A. For transactions 
not secured by real property, if disclosures are made in a regular 
transaction on July 1, the transaction is consummated on July 15, and 
the actual annual percentage rate varies by more than 1/8 of 1 
percentage point from the disclosed annual percentage rate, the 
creditor must either redisclose the changed terms or furnish a complete 
set of new disclosures before consummation. Redisclosure is required 
even if the disclosures made on July 1 are based on estimates and 
marked as such.
    B. In a regular transaction not secured by real property, if early 
disclosures are marked as estimates and the disclosed annual percentage 
rate is within 1/8 of 1 percentage point of the rate at consummation, 
the creditor need not redisclose the changed terms (including the 
annual percentage rate).
    C. If disclosures for transactions not secured by real property are 
made on July 1, the transaction is consummated on July 15, and the 
finance charge increased by $35 but the disclosed

[[Page 80310]]

annual percentage rate is within the permitted tolerance, the creditor 
must at least redisclose the changed terms that were not marked as 
estimates. See Sec.  1026.18(d)(2).
    ii. Reverse mortgages. In a transaction subject to Sec.  1026.19(a) 
and not Sec.  1026.19(e) and (f), assume that, at the time the 
disclosures required by Sec.  1026.19(a) are prepared in July, the loan 
closing is scheduled for July 31 and the creditor does not plan to 
collect per-diem interest at consummation. Assume further that 
consummation actually occurs on August 5, and per-diem interest for the 
remainder of August is collected as a prepaid finance charge. The 
creditor may rely on the disclosures prepared in July that were 
accurate when they were prepared. However, if the creditor prepares new 
disclosures in August that will be provided at consummation, the new 
disclosures must take into account the amount of the per-diem interest 
known to the creditor at that time.
    iii. Mortgages other than reverse mortgages and mortgage loans not 
secured by real property. For transactions secured by real property 
other than reverse mortgages, assume that, at the time the disclosures 
required by Sec.  1026.19(e) are prepared in July, the loan closing is 
scheduled for July 31 and the creditor does not plan to collect per-
diem interest at consummation. Assume further that consummation 
actually occurs on August 5, and per-diem interest for the remainder of 
August is collected as a prepaid finance charge. The creditor must make 
the disclosures required by Sec.  1026.19(f) three days before 
consummation, and the disclosures required by Sec.  1026.19(f) must 
take into account the amount of per-diem interest that will be 
collected at consummation.
    2. Variable rate. The addition of a variable rate feature to the 
credit terms, after early disclosures are given, requires new 
disclosures. See Sec.  1026.19(e) and (f) to determine when new 
disclosures are required for transactions secured by real property, 
other than reverse mortgages.
    3. Content of new disclosures. Except as provided by Sec.  
1026.19(e) and (f), if redisclosure is required, the creditor has the 
option of either providing a complete set of new disclosures, or 
providing disclosures of only the terms that vary from those originally 
disclosed. See the commentary to Sec.  1026.19(a)(2).
    4. Special rules. In mortgage transactions subject to Sec.  
1026.19(a), the creditor must redisclose if, between the delivery of 
the required early disclosures and consummation, the annual percentage 
rate changes by more than a stated tolerance. When subsequent events 
occur after consummation, new disclosures are required only if there is 
a refinancing or an assumption within the meaning of Sec.  1026.20.
* * * * *
    17(g) Mail or telephone orders--delay in disclosures.
    1. Conditions for use. Except for extensions of credit subject to 
Sec.  1026.19(a) or (e) and (f), when the creditor receives a mail or 
telephone request for credit, the creditor may delay making the 
disclosures until the first payment is due if the following conditions 
are met:
* * * * *
    17(h) Series of sales--delay in disclosures.
    1. Applicability. Except for extensions of credit covered by Sec.  
1026.19(a) or (e) and (f), the creditor may delay the disclosures for 
individual credit sales in a series of such sales until the first 
payment is due on the current sale, assuming the two conditions in 
Sec.  1026.17(h) are met. If those conditions are not met, the general 
timing rules in Sec.  1026.17(b) apply.
* * * * *

Section 1026.18--Content of Disclosures

* * * * *
    3. Scope of coverage. i. Section 1026.18 applies to closed-end 
consumer credit transactions, other than transactions that are subject 
to Sec.  1026.19(e) and (f). Section 1026.19(e) and (f) applies to 
closed-end consumer credit transactions that are secured by real 
property, other than reverse mortgages subject to Sec.  1026.33. 
Accordingly, the disclosures required by Sec.  1026.18 apply only to 
closed-end consumer credit transactions that are:
    A. Unsecured;
    B. Secured by personal property that is not a dwelling;
    C. Secured by personal property that is a dwelling and is not also 
secured by real property; or
    D. Reverse mortgages subject to Sec.  1026.33.
    ii. Of the foregoing transactions that are subject to Sec.  
1026.18, the creditor discloses a payment schedule pursuant to Sec.  
1026.18(g) for those described in paragraphs i.A and i.B of this 
comment. For transactions described in paragraphs i.C and i.D of this 
comment, the creditor discloses an interest rate and payment summary 
table pursuant to Sec.  1026.18(s). See also comments 18(g)-6 and 
18(s)-4 for additional guidance on the applicability to different 
transaction types of Sec. Sec.  1026.18(g) or (s) and 1026.19(e) and 
(f).
    iii. Because Sec.  1026.18 does not apply to transactions secured 
by real property, other than reverse mortgages, references in the 
section and its commentary to ``mortgages'' refer only to transactions 
described in paragraphs i.C and i.D of this comment, as applicable.
* * * * *
    18(c) Itemization of amount financed.
* * * * *
    4. RESPA transactions. The Real Estate Settlement Procedures Act 
(RESPA) requires creditors to provide a good faith estimate of closing 
costs and a settlement statement listing the amounts paid by the 
consumer. Reverse mortgages subject to RESPA and Sec.  1026.18 are 
exempt from the requirements of Sec.  1026.18(c) if the creditor 
complies with RESPA's requirements for a good faith estimate and 
settlement statement. The itemization of the amount financed need not 
be given, even though the content and timing of the good faith estimate 
and settlement statement under RESPA differ from the requirements of 
Sec. Sec.  1026.18(c) and 1026.19(a)(2). If a creditor chooses to 
substitute RESPA's settlement statement for the itemization when 
redisclosure is required under Sec.  1026.19(a)(2), the statement must 
be delivered to the consumer at or prior to consummation. The 
disclosures required by Sec. Sec.  1026.18(c) and 1026.19(a)(2) may 
appear on the same page or on the same document as the good faith 
estimate or the settlement statement, so long as the requirements of 
Sec.  1026.17(a) are met.
* * * * *
    Paragraph 18(c)(1)(iv).
* * * * *
    2. Prepaid mortgage insurance premiums. Regulation X under RESPA, 
12 CFR 1024.8, requires creditors to give consumers a settlement 
statement disclosing the costs associated with reverse mortgage loan 
transactions. Included on the settlement statement are mortgage 
insurance premiums collected at settlement, which are prepaid finance 
charges. In calculating the total amount of prepaid finance charges, 
creditors should use the amount for mortgage insurance listed on the 
line for mortgage insurance on the settlement statement (line 1003 on 
HUD-1 or HUD 1-A), without adjustment, even if the actual amount 
collected at settlement may vary because of RESPA's escrow accounting 
rules. Figures for mortgage insurance disclosed in conformance with 
RESPA shall be deemed to be accurate for purposes of Regulation Z.
* * * * *

[[Page 80311]]

    18(g) Payment schedule.
* * * * *
    4. Timing of payments. i. General rule. * * *
    ii. Exception. In a limited number of circumstances, the beginning-
payment date is unknown and difficult to determine at the time 
disclosures are made. For example, a consumer may become obligated on a 
credit contract that contemplates the delayed disbursement of funds 
based on a contingent event, such as the completion of repairs. 
Disclosures may also accompany loan checks that are sent by mail, in 
which case the initial disbursement and repayment dates are solely 
within the consumer's control. In such cases, if the beginning-payment 
date is unknown the creditor may use an estimated date and label the 
disclosure as an estimate pursuant to Sec.  1026.17(c). Alternatively, 
the disclosure may refer to the occurrence of a particular event, for 
example, by disclosing that the beginning payment is due ``30 days 
after the first loan disbursement.'' This information also may be 
included with an estimated date to explain the basis for the creditor's 
estimate. See comment 17(a)(1)-5.iii.
    5. [Reserved]
    6. Mortgage transactions. Section 1026.18(g) applies to closed-end 
transactions, other than transactions that are subject to Sec.  
1026.18(s) or Sec.  1026.19(e) and (f). Section 1026.18(s) applies to 
closed-end transactions secured by real property or a dwelling, unless 
they are subject to Sec.  1026.19(e) and (f). Section 1026.19(e) and 
(f) applies to closed-end transactions secured by real property, other 
than reverse mortgages. Thus, if a closed-end consumer credit 
transaction is secured by real property or a dwelling and the 
transaction is a reverse mortgage or the dwelling is personal property, 
the creditor discloses an interest rate and payment summary table in 
accordance with Sec.  1026.18(s). See comment 18(s)-4. If a closed-end 
consumer credit transaction is secured by real property and is not a 
reverse mortgage, the creditor discloses a projected payments table in 
accordance with Sec. Sec.  1026.37(c) and 1026.38(c), as required by 
Sec.  1026.19(e) and (f). In all such cases, the creditor is not 
subject to the requirements of Sec.  1026.18(g). On the other hand, if 
a closed-end consumer credit transaction is not secured by real 
property or a dwelling (for example, if it is unsecured or secured by 
an automobile), the creditor discloses a payment schedule in accordance 
with Sec.  1026.18(g) and is not subject to the requirements of Sec.  
1026.18(s) or Sec. Sec.  1026.37(c) and 1026.38(c).
* * * * *
    Paragraph 18(g)(2).
    1. Abbreviated disclosure. The creditor may disclose an abbreviated 
payment schedule when the amount of each regularly scheduled payment 
(other than the first or last payment) includes an equal amount to be 
applied on principal and a finance charge computed by application of a 
rate to the decreasing unpaid balance. In addition, in transactions 
where payments vary because interest and principal are paid at 
different intervals, the two series of payments may be disclosed 
separately and the abbreviated payment schedule may be used for the 
interest payments. For example, in transactions with fixed quarterly 
principal payments and monthly interest payments based on the 
outstanding principal balance, the amount of the interest payments will 
change quarterly as principal declines. In such cases the creditor may 
treat the interest and principal payments as two separate series of 
payments, separately disclosing the number, amount, and due dates of 
principal payments, and, using the abbreviated payment schedule, the 
number, amount, and due dates of interest payments. This option may be 
used when interest and principal are scheduled to be paid on the same 
date of the month as well as on different dates of the month. The 
creditor using this alternative must disclose the dollar amount of the 
highest and lowest payments and make reference to the variation in 
payments.
    2. Combined payment schedule disclosures. Creditors may combine the 
option in Sec.  1026.18(g)(2) with the general payment schedule 
requirements in transactions where only a portion of the payment 
schedule meets the conditions of Sec.  1026.18(g)(2). For example, in a 
transaction where payments rise sharply for five years and then decline 
over the next 25 years, the first five years would be disclosed under 
the general rule in Sec.  1026.18(g) and the next 25 years according to 
the abbreviated schedule in Sec.  1026.18(g)(2).
* * * * *
    18(k) Prepayment.
    1. Disclosure required. The creditor must give a definitive 
statement of whether or not a prepayment penalty will be imposed or a 
prepayment rebate will be given.
    i. The fact that no prepayment penalty will be imposed may not 
simply be inferred from the absence of a prepayment penalty disclosure; 
the creditor must indicate that prepayment will not result in a 
prepayment penalty.
    ii. If a prepayment penalty or prepayment rebate is possible for 
one type of prepayment, even though not for all, a positive disclosure 
is required. This applies to any type of prepayment, whether voluntary 
or involuntary as in the case of prepayments resulting from 
acceleration.
    iii. Any difference in prepayment rebate or prepayment penalty 
policy, depending on whether prepayment is voluntary or not, must not 
be disclosed with the segregated disclosures.
    2. Rebate-penalty disclosure. A single transaction may involve both 
a precomputed finance charge and a finance charge computed by 
application of a rate to the unpaid balance (for example, mortgages 
with mortgage-guarantee insurance). In these cases, disclosures about 
both prepayment rebates and prepayment penalties are required. Sample 
form H-15 in appendix H to this part illustrates a mortgage transaction 
in which both rebate and penalty disclosures are necessary.
    3. Prepaid finance charge. The existence of a prepaid finance 
charge in a transaction does not, by itself, require a disclosure under 
Sec.  1026.18(k). A prepaid finance charge is not considered a 
prepayment penalty under Sec.  1026.18(k)(1), nor does it require a 
disclosure under Sec.  1026.18(k)(2). At its option, however, a 
creditor may consider a prepaid finance charge to be under Sec.  
1026.18(k)(2). If a disclosure is made under Sec.  1026.18(k)(2) with 
respect to a prepaid finance charge or other finance charge, the 
creditor may further identify that finance charge. For example, the 
disclosure may state that the borrower ``will not be entitled to a 
refund of the prepaid finance charge'' or some other term that 
describes the finance charge.
    Paragraph 18(k)(1).
    1. Examples of prepayment penalties. For purposes of Sec.  
1026.18(k)(1), the following are examples of prepayment penalties:
    i. A charge determined by treating the loan balance as outstanding 
for a period of time after prepayment in full and applying the interest 
rate to such ``balance,'' even if the charge results from interest 
accrual amortization used for other payments in the transaction under 
the terms of the loan contract. ``Interest accrual amortization'' 
refers to the method by which the amount of interest due for each 
period (e.g., month) in a transaction's term is determined. For 
example, ``monthly interest accrual amortization'' treats each payment 
as made on the scheduled, monthly due date even if it is actually paid 
early or late (until the

[[Page 80312]]

expiration of any grace period). Thus, under the terms of a loan 
contract providing for monthly interest accrual amortization, if the 
amount of interest due on May 1 for the preceding month of April is 
$3,000, the loan contract will require payment of $3,000 in interest 
for the month of April whether the payment is made on April 20, on May 
1, or on May 10. In this example, if the consumer prepays the loan in 
full on April 20 and if the accrued interest as of that date is $2,000, 
then assessment of a charge of $3,000 constitutes a prepayment penalty 
of $1,000 because the amount of interest actually earned through April 
20 is only $2,000.
    ii. A fee, such as an origination or other loan closing cost, that 
is waived by the creditor on the condition that the consumer does not 
prepay the loan. However, the term prepayment penalty does not include 
a waived bona fide third-party charge imposed by the creditor if the 
consumer pays all of a covered transaction's principal before the date 
on which the principal is due sooner than 36 months after consummation. 
For example, assume that at consummation, the creditor waives $3,000 in 
closing costs to cover bona fide third-party charges but the terms of 
the loan agreement provide that the creditor may recoup the $3,000 in 
waived charges if the consumer repays the entire loan balance sooner 
than 36 months after consummation. The $3,000 charge is not a 
prepayment penalty. In contrast, for example, assume that at 
consummation, the creditor waives $3,000 in closing costs to cover bona 
fide third-party charges but the terms of the loan agreement provide 
that the creditor may recoup $4,500 in part to recoup waived charges, 
if the consumer repays the entire loan balance sooner than 36 months 
after consummation. The $3,000 that the creditor may impose to cover 
the waived bona fide third-party charges is not a prepayment penalty, 
but the additional $1,500 charge is a prepayment penalty and must be 
disclosed pursuant to Sec.  1026.37(k)(1).
    iii. A minimum finance charge in a simple interest transaction.
    2. Fees that are not prepayment penalties. For purposes of Sec.  
1026.18(k)(1), fees which are not prepayment penalties include, for 
example:
    i. Fees imposed for preparing and providing documents when a loan 
is paid in full, if such fees are imposed whether or not the loan is 
prepaid. Examples include a loan payoff statement, a reconveyance 
document, or another document releasing the creditor's security 
interest in the dwelling that secures the loan.
    ii. Loan guarantee fees.
    Paragraph 18(k)(2).
    1. Rebate of finance charge. i. This applies to any finance charges 
that do not take account of each reduction in the principal balance of 
an obligation. This category includes, for example:
    A. Precomputed finance charges such as add-on charges. This 
includes computing a refund of an unearned finance charge, such as 
precomputed interest, by a method that is less favorable to the 
consumer than the actuarial method, as defined by section 933(d) of the 
Housing and Community Development Act of 1992, 15 U.S.C. 1615(d). For 
purposes of computing a refund of unearned interest, if using the 
actuarial method defined by applicable State law results in a refund 
that is greater than the refund calculated by using the method 
described in section 933(d) of the Housing and Community Development 
Act of 1992, creditors should use the State law definition in 
determining if a refund is a prepayment penalty.
    B. Charges that take account of some but not all reductions in 
principal, such as mortgage guarantee insurance assessed on the basis 
of an annual declining balance, when the principal is reduced on a 
monthly basis.
    ii. No description of the method of computing earned or unearned 
finance charges is required or permitted as part of the segregated 
disclosures under Sec.  1026.18(k)(2).
* * * * *
    18(r) Required deposit.
* * * * *
    6. Examples of amounts excluded. The following are among the types 
of deposits that need not be treated as required deposits:
    i. Requirement that a borrower be a customer or a member even if 
that involves a fee or a minimum balance.
    ii. Required property insurance escrow on a mobile home 
transaction.
    iii. Refund of interest when the obligation is paid in full.
    iv. Deposits that are immediately available to the consumer.
    v. Funds deposited with the creditor to be disbursed (for example, 
for construction) before the loan proceeds are advanced.
    vi. [Reserved]
    vii. Escrow of loan proceeds to be released when the repairs are 
completed.
    18(s) Interest rate and payment summary for mortgage transactions.
    1. In general. Section 1026.18(s) prescribes format and content for 
disclosure of interest rates and monthly (or other periodic) payments 
for reverse mortgages and certain transactions secured by dwellings 
that are personal property. The information in Sec.  1026.18(s)(2) 
through (4) is required to be in the form of a table, except as 
otherwise provided, with headings and format substantially similar to 
model clause H-4(E), H-4(F), H-4(G), or H-4(H) in appendix H to this 
part. A disclosure that does not include the shading shown in a model 
clause but otherwise follows the model clause's headings and format is 
substantially similar to that model clause. Where Sec.  1026.18(s)(2) 
through (4) or the applicable model clause requires that a column or 
row of the table be labeled using the word ``monthly'' but the periodic 
payments are not due monthly, the creditor should use the appropriate 
term, such as ``bi-weekly'' or ``quarterly.'' In all cases, the table 
should have no more than five vertical columns corresponding to 
applicable interest rates at various times during the loan's term; 
corresponding payments would be shown in horizontal rows. Certain loan 
types and terms are defined for purposes of Sec.  1026.18(s) in Sec.  
1026.18(s)(7).
* * * * *
    4. Scope of coverage in relation to Sec.  1026.19(e) and (f). 
Section 1026.18(s) applies to transactions secured by real property or 
a dwelling, other than transactions that are subject to Sec.  
1026.19(e) and (f). Those provisions apply to closed-end transactions 
secured by real property, other than reverse mortgages. Accordingly, 
Sec.  1026.18(s) governs only closed-end reverse mortgages and closed-
end transactions secured by a dwelling that is personal property (such 
as a mobile home that is not deemed real property under State or other 
applicable law).
* * * * *
    18(s)(3) Payments for amortizing loans.
* * * * *
    Paragraph 18(s)(3)(i)(C).
    1. Taxes and insurance. An estimated payment amount for taxes and 
insurance must be disclosed if the creditor will establish an escrow 
account for such amounts. If the escrow account will include amounts 
for items other than taxes and insurance, such as homeowners 
association dues, the creditor may but is not required to include such 
items in the estimate. When such estimated escrow payments must be 
disclosed in multiple columns of the table, such as for adjustable- and 
step-rate transactions, each column should use the same estimate for 
taxes

[[Page 80313]]

and insurance except that the estimate should reflect changes in 
periodic mortgage insurance premiums or any functionally equivalent fee 
that are known to the creditor at the time the disclosure is made. The 
estimated amounts of mortgage insurance premiums or any functionally 
equivalent fee should be based on the declining principal balance that 
will occur as a result of changes to the interest rate that are assumed 
for purposes of disclosing those rates under Sec.  1026.18(s)(2) and 
accompanying commentary. The payment amount must include estimated 
amounts for property taxes and premiums for mortgage-related insurance 
required by the creditor, such as insurance against loss of or damage 
to property, or against liability arising out of the ownership or use 
of the property, or insurance protecting the creditor against the 
consumer's default or other credit loss. Premiums for credit insurance, 
debt suspension and debt cancellation agreements, however, should not 
be included. Except for periodic mortgage insurance premiums or any 
functionally equivalent fee included in the escrow payment under Sec.  
1026.18(s)(3)(i)(C), amounts included in the escrow payment disclosure 
such as property taxes and homeowner's insurance generally are not 
finance charges under Sec.  1026.4 and, therefore, do not affect other 
disclosures, including the finance charge and annual percentage rate.
    2. Mortgage insurance or any functional equivalent. For purposes of 
Sec.  1026.18(s), ``mortgage insurance or any functional equivalent'' 
means the amounts identified in Sec.  1026.4(b)(5). ``Mortgage 
guarantees'' (such as a United States Department of Veterans Affairs or 
United States Department of Agriculture guarantee) provide coverage 
similar to mortgage insurance, even if not technically considered 
insurance under State or other applicable law. For purposes of Sec.  
1026.18(s), ``mortgage insurance or any functional equivalent'' 
includes any mortgage guarantee. Payment amounts under Sec.  
1026.18(s)(3)(i) should reflect the consumer's mortgage insurance 
payments or any functionally equivalent fee until the date on which the 
creditor must automatically terminate coverage under applicable law, 
even though the consumer may have a right to request that the insurance 
be cancelled earlier. The payment amount must reflect the terms of the 
legal obligation, as determined by applicable State or other law. For 
example, assume that under applicable law, mortgage insurance must 
terminate after the 130th scheduled monthly payment, and the creditor 
collects at closing and places in escrow two months of premiums. If, 
under the legal obligation, the creditor will include mortgage 
insurance premiums in 130 payments and refund the escrowed payments 
when the insurance is terminated, payment amounts disclosed through the 
130th payment should reflect premium payments. If, under the legal 
obligation, the creditor will apply the amount escrowed to the two 
final insurance payments, payments disclosed through the 128th payment 
should reflect premium payments. The escrow amount reflected on the 
disclosure should include mortgage insurance premiums even if they are 
not escrowed and even if there is no escrow account established for the 
transaction.
* * * * *
    18(s)(6) Special disclosures for loans with negative amortization.
    1. Escrows. See the commentary under Sec.  1026.18(s)(3)(i)(C) for 
guidance on escrows for purposes of Sec.  1026.18(s)(6). Under that 
guidance, because mortgage insurance payments and functionally 
equivalent fees decline over a loan's term, the payment amounts shown 
in the table should reflect the mortgage insurance payment and 
functionally equivalent fees that will be applicable at the time each 
disclosed periodic payment will be in effect. Accordingly, the 
disclosed mortgage insurance payment or functionally equivalent fee 
will be zero if it corresponds to a periodic payment that will occur 
after the creditor will be legally required to terminate mortgage 
insurance or any functional equivalent. On the other hand, because only 
one escrow amount is disclosed under Sec.  1026.18(s)(6) for negative 
amortization loans and escrows that are not itemized in the payment 
amounts, the single escrow amount disclosed should reflect the mortgage 
insurance amount or any functionally equivalent fee that will be 
collected at the outset of the loan's term, even though that amount 
will decline in the future and ultimately will be discontinued pursuant 
to the terms of the mortgage insurance policy.
* * * * *

Section 1026.19--Certain Mortgage and Variable-Rate Transactions

    19(a)(1)(i) Time of disclosures.
    1. Coverage. Section 1026.19(a) requires early disclosure of credit 
terms in reverse mortgage transactions subject to Sec.  1026.33 that 
are secured by a consumer's dwelling that are also subject to the Real 
Estate Settlement Procedures Act (RESPA) and its implementing 
Regulation X. To be covered by Sec.  1026.19(a), a transaction must be 
a Federally related mortgage loan under RESPA. ``Federally related 
mortgage loan'' is defined under RESPA (12 U.S.C. 2602) and Regulation 
X (12 CFR 1024.2(b)), and is subject to any interpretations by the 
Bureau.
* * * * *
    19(e) Mortgage loans secured by real property--Early disclosures.
    1. Affiliate. The term ``affiliate,'' as used in Sec.  1026.19(e), 
has the same meaning as in Sec.  1026.32(b)(5).
    19(e)(1) Provision of disclosures.
    19(e)(1)(i) Creditor.
    1. Requirements. Section 1026.19(e)(1)(i) requires early disclosure 
of credit terms in closed-end credit transactions that are secured by 
real property, other than reverse mortgages. These disclosures must be 
provided in good faith. Except as otherwise provided in Sec.  
1026.19(e), a disclosure is in good faith if it is consistent with 
Sec.  1026.17(c)(2)(i). Section 1026.17(c)(2)(i) provides that if any 
information necessary for an accurate disclosure is unknown to the 
creditor, the creditor shall make the disclosure based on the best 
information reasonably available to the creditor at the time the 
disclosure is provided to the consumer. The ``reasonably available'' 
standard requires that the creditor, acting in good faith, exercise due 
diligence in obtaining information. See comment 17(c)(2)(i)-1 for an 
explanation of the standard set forth in Sec.  1026.17(c)(2)(i). See 
comment 17(c)(2)(i)-2 for labeling disclosures required under Sec.  
1026.19(e) that are estimates.
    19(e)(1)(ii) Mortgage broker.
    1. Mortgage broker responsibilities. Section 1026.19(e)(1)(ii)(A) 
provides that if a mortgage broker receives a consumer's application, 
either the creditor or the mortgage broker must provide the consumer 
with the disclosures required under Sec.  1026.19(e)(1)(i) in 
accordance with Sec.  1026.19(e)(1)(iii). Section 1026.19(e)(1)(ii)(A) 
also provides that if the mortgage broker provides the required 
disclosures, it must comply with all relevant requirements of Sec.  
1026.19(e). This means that ``mortgage broker'' should be read in the 
place of ``creditor'' for all provisions of Sec.  1026.19(e), except to 
the extent that such a reading would create responsibility for mortgage 
brokers under Sec.  1026.19(f). To illustrate, comment 19(e)(4)(ii)-1 
states that creditors comply with the requirements of Sec.  
1026.19(e)(4) if the revised disclosures are reflected in the

[[Page 80314]]

disclosures required by Sec.  1026.19(f)(1)(i). ``Mortgage broker'' 
could not be read in place of ``creditor'' in comment 19(e)(4)(ii)-1 
because mortgage brokers are not responsible for the disclosures 
required under Sec.  1026.19(f)(1)(i). In addition, Sec.  
1026.19(e)(1)(ii)(A) provides that the creditor must ensure that 
disclosures provided by mortgage brokers comply with all requirements 
of Sec.  1026.19(e), and that disclosures provided by mortgage brokers 
that do comply with all such requirements satisfy the creditor's 
obligation under Sec.  1026.19(e). The term ``mortgage broker,'' as 
used in Sec.  1026.19(e)(1)(ii), has the same meaning as in Sec.  
1026.36(a)(2). See also comment 36(a)-2. Section 1026.19(e)(1)(ii)(B) 
provides that if a mortgage broker provides any disclosure required 
under Sec.  1026.19(e), the mortgage broker must also comply with the 
requirements of Sec.  1026.25(c). For example, if a mortgage broker 
provides the disclosures required under Sec.  1026.19(e)(1)(i), it must 
maintain records for three years, in compliance with Sec.  
1026.25(c)(1)(i).
    2. Creditor responsibilities. If a mortgage broker issues any 
disclosure required under Sec.  1026.19(e) in the creditor's place, the 
creditor remains responsible under Sec.  1026.19(e) for ensuring that 
the requirements of Sec.  1026.19(e) have been satisfied. For example, 
if a mortgage broker receives a consumer's application and provides the 
consumer with the disclosures required under Sec.  1026.19(e)(1)(i), 
the creditor does not satisfy the requirements of Sec.  
1026.19(e)(1)(i) if it provides duplicative disclosures to the 
consumer. In the same example, even if the broker provides an erroneous 
disclosure, the creditor is responsible and may not issue a revised 
disclosure correcting the error. The creditor is expected to maintain 
communication with the broker to ensure that the broker is acting in 
place of the creditor.
    19(e)(1)(iii) Timing.
    1. Timing and use of estimates. The disclosures required by Sec.  
1026.19(e)(1)(i) must be delivered not later than three business days 
after the creditor receives the consumer's application. For example, if 
an application is received on Monday, the creditor satisfies this 
requirement by either hand delivering the disclosures on or before 
Thursday, or placing them in the mail on or before Thursday, assuming 
each weekday is a business day. For purposes of Sec.  
1026.19(e)(1)(iii)(A), the term ``business day'' means a day on which 
the creditor's offices are open to the public for carrying out 
substantially all of its business functions. See Sec.  1026.2(a)(6).
    2. Waiting period. The seven-business-day waiting period begins 
when the creditor delivers the disclosures or places them in the mail, 
not when the consumer receives or is considered to have received the 
disclosures. For example, if a creditor delivers the early disclosures 
to the consumer in person or places them in the mail on Monday, June 1, 
consummation may occur on or after Tuesday, June 9, the seventh 
business day following delivery or mailing of the early disclosures, 
because, for the purposes of Sec.  1026.19(e)(1)(iii)(B), Saturday is a 
business day, pursuant to Sec.  1026.2(a)(6).
    3. Denied or withdrawn applications. The creditor may determine 
within the three-business-day period that the application will not or 
cannot be approved on the terms requested, such as when a consumer's 
credit score is lower than the minimum score required for the terms the 
consumer applied for, or the consumer applies for a type or amount of 
credit that the creditor does not offer. In that case, or if the 
consumer withdraws the application within the three-business-day period 
by, for instance, informing the creditor that he intends to take out a 
loan from another creditor within the three-business-day period, the 
creditor need not make the disclosures required under Sec.  
1026.19(e)(1)(i). If the creditor fails to provide early disclosures 
and the transaction is later consummated on the terms originally 
applied for, then the creditor does not comply with Sec.  
1026.19(e)(1)(i). If, however, the consumer amends the application 
because of the creditor's unwillingness to approve it on the terms 
originally applied for, no violation occurs for not providing 
disclosures based on those original terms. But the amended application 
is a new application subject to Sec.  1026.19(e)(1)(i).
    4. Timeshares. If consummation occurs within three business days 
after a creditor's receipt of an application for a transaction that is 
secured by a consumer's interest in a timeshare plan described in 11 
U.S.C. 101(53D), a creditor complies with Sec.  1026.19(e)(1)(iii) by 
providing the disclosures required under Sec.  1026.19(f)(1)(i) instead 
of the disclosures required under Sec.  1026.19(e)(1)(i).
    19(e)(1)(iv) Receipt of early disclosures.
    1. Mail delivery. Section 1026.19(e)(1)(iv) provides that, if any 
disclosures required under Sec.  1026.19(e)(1)(i) are not provided to 
the consumer in person, the consumer is considered to have received the 
disclosures three business days after they are delivered or placed in 
the mail. The creditor may, alternatively, rely on evidence that the 
consumer received the disclosures earlier than three business days. For 
example, if the creditor sends the disclosures via overnight mail on 
Monday, and the consumer signs for receipt of the overnight delivery on 
Tuesday, the creditor could demonstrate that the disclosures were 
received on Tuesday.
    2. Electronic delivery. The three-business-day period provided in 
Sec.  1026.19(e)(1)(iv) applies to methods of electronic delivery, such 
as email. For example, if a creditor sends the disclosures required 
under Sec.  1026.19(e) via email on Monday, pursuant to Sec.  
1026.19(e)(1)(iv) the consumer is considered to have received the 
disclosures on Thursday, three business days later. The creditor may, 
alternatively, rely on evidence that the consumer received the emailed 
disclosures earlier. For example, if the creditor emails the 
disclosures at 1 p.m. on Tuesday, the consumer emails the creditor with 
an acknowledgement of receipt of the disclosures at 5 p.m. on the same 
day, the creditor could demonstrate that the disclosures were received 
on the same day. Creditors using electronic delivery methods, such as 
email, must also comply with Sec.  1026.37(o)(3)(iii), which provides 
that the disclosures in Sec.  1026.37 may be provided to the consumer 
in electronic form, subject to compliance with the consumer consent and 
other applicable provisions of the E-Sign Act. For example, if a 
creditor delivers the disclosures required under Sec.  1026.19(e)(1)(i) 
to a consumer via email, but the creditor did not obtain the consumer's 
consent to receive disclosures via email prior to delivering the 
disclosures, then the creditor does not comply with Sec.  
1026.37(o)(3)(iii), and the creditor does not comply with Sec.  
1026.19(e)(1)(i), assuming the disclosures were not provided in a 
different manner in accordance with the timing requirements of Sec.  
1026.19(e)(1)(iii).
    19(e)(1)(v) Consumer's waiver of waiting period before 
consummation.
    1. Modification or waiver. A consumer may modify or waive the right 
to the seven-business-day waiting period required by Sec.  
1026.19(e)(1)(iii) only after the creditor makes the disclosures 
required by Sec.  1026.19(e)(1)(i). The consumer must have a bona fide 
personal financial emergency that necessitates consummating the credit 
transaction before the end of the waiting

[[Page 80315]]

period. Whether these conditions are met is determined by the 
circumstances of the individual situation. The imminent sale of the 
consumer's home at foreclosure, where the foreclosure sale will proceed 
unless loan proceeds are made available to the consumer during the 
waiting period, is one example of a bona fide personal financial 
emergency. Each consumer who is primarily liable on the legal 
obligation must sign the written statement for the waiver to be 
effective.
    2. Examples of waivers within the seven-business-day waiting 
period. If the early disclosures are delivered to the consumer in 
person on Monday, June 1, the seven-business-day waiting period ends on 
Tuesday, June 9. If on Monday, June 1, the consumer executes a waiver 
of the seven-business-day waiting period, the final disclosures 
required by Sec.  1026.19(f)(1)(i) could then be delivered three 
business days before consummation, as required by Sec.  
1026.19(f)(1)(ii), on Tuesday, June 2, and the loan could be 
consummated on Friday, June 5. See Sec.  1026.19(f)(1)(iv) for waiver 
of the three-business-day waiting period under Sec.  1026.19(f).
    19(e)(1)(vi) Shopping for settlement service providers.
    1. Permission to shop. Section 1026.19(e)(1)(vi)(A) permits 
creditors to impose reasonable requirements regarding the 
qualifications of the provider. For example, the creditor may require 
that a settlement agent chosen by the consumer must be appropriately 
licensed in the relevant jurisdiction. In contrast, a creditor does not 
permit a consumer to shop for purposes of Sec.  1026.19(e)(1)(vi) if 
the creditor requires the consumer to choose a provider from a list 
provided by creditor. The requirements of Sec.  1026.19(e)(1)(vi)(B) 
and (C) do not apply if the creditor does not permit the consumer to 
shop consistent with Sec.  1026.19(e)(1)(vi)(A).
    2. Disclosure of services for which the consumer may shop. Section 
1026.19(e)(1)(vi)(B) requires the creditor to identify the services for 
which the consumer is permitted to shop in the disclosures provided 
pursuant to Sec.  1026.19(e)(1)(i). See Sec.  1026.37(f)(3) regarding 
the content and format for disclosure of services for which the 
consumer may shop.
    3. Written list of providers. If the creditor permits the consumer 
to shop for a settlement service, Sec.  1026.19(e)(1)(vi)(C) requires 
the creditor to provide the consumer with a written list identifying at 
least one available provider of that service and stating that the 
consumer may choose a different provider for that service. The 
settlement service providers identified on the written list required by 
Sec.  1026.19(e)(vi)(C) must correspond to the settlement services for 
which the consumer may shop, disclosed pursuant to Sec.  1026.37(f)(3). 
See form H-27 of appendix H to this part for a model list.
    4. Identification of available providers. Section 
1026.19(e)(1)(vi)(C) provides that the creditor must identify 
settlement service providers that are available to the consumer. A 
creditor does not comply with the identification requirement in Sec.  
1026.19(e)(1)(vi)(C) unless it provides sufficient information to allow 
the consumer to contact the provider, such as the name under which the 
provider does business and the provider's address and telephone number. 
Similarly, a creditor does not comply with the availability requirement 
in Sec.  1026.19(e)(1)(vi)(C) if it provides a written list consisting 
of only settlement service providers that are no longer in business or 
that do not provide services where the consumer or property is located.
    5. Statement that consumer may choose different provider. Section 
1026.19(e)(1)(vi)(C) requires the creditor to include on the written 
list a statement that the consumer may choose a provider that is not 
included on that list. See form H-27 of appendix H to this part for a 
model of such a statement.
    6. Additional information on written list. The creditor may include 
a statement on the written list that the listing of a settlement 
service provider does not constitute an endorsement of that service 
provider. The creditor may also identify on the written list providers 
of services for which the consumer is not permitted to shop, provided 
that the creditor clearly and conspicuously distinguishes those 
services from the services for which the consumer is permitted to shop. 
This may be accomplished by placing the services under different 
headings. For example, if the list provided pursuant to Sec.  
1026.19(e)(1)(vi)(C) identifies providers of pest inspections and 
surveys, but the consumer may select a provider, other than those 
identified on the list, for only the survey, then the list must 
specifically inform the consumer that the consumer is permitted to 
select a provider, other than a provider identified on the list, for 
only the survey.
    7. Relation to RESPA and Regulation X. Section 1026.19 does not 
prohibit creditors from including affiliates on the written list 
required under Sec.  1026.19(e)(1)(vi)(C). However, a creditor that 
includes affiliates on the written list must also comply with 12 CFR 
1024.15. Furthermore, the written list is a ``referral'' under 12 CFR 
1024.14(f).
    19(e)(2) Predisclosure activity.
    19(e)(2)(i) Imposition of fees on consumer.
    19(e)(2)(i)(A) Fee restriction.
    1. Fees restricted. A creditor or other person may not impose any 
fee, such as for an application, appraisal, or underwriting, until the 
consumer has received the disclosures required by Sec.  
1026.19(e)(1)(i) and indicated an intent to proceed with the 
transaction. The only exception to the fee restriction allows the 
creditor or other person to impose a bona fide and reasonable fee for 
obtaining a consumer's credit report, pursuant to Sec.  
1026.19(e)(2)(i)(B).
    2. Intent to proceed. Section 1026.19(e)(2)(i)(A) provides that a 
consumer may indicate an intent to proceed with a transaction in any 
manner the consumer chooses, unless a particular manner of 
communication is required by the creditor. The creditor must document 
this communication to satisfy the requirements of Sec.  1026.25. For 
example, oral communication in person immediately upon delivery of the 
disclosures required by Sec.  1026.19(e)(1)(i) is sufficiently 
indicative of intent. Oral communication over the phone, written 
communication via email, or signing a pre-printed form are also 
sufficiently indicative of intent if such actions occur after receipt 
of the disclosures required by Sec.  1026.19(e)(1)(i). However, a 
consumer's silence is not indicative of intent because it cannot be 
documented to satisfy the requirements of Sec.  1026.25. For example, a 
creditor or third party may not deliver the disclosures, wait for some 
period of time for the consumer to respond, and then charge the 
consumer a fee for an appraisal if the consumer does not respond, even 
if the creditor or third party disclosed that it would do so.
    3. Timing of fees. At any time prior to delivery of the disclosures 
required under Sec.  1026.19(e)(1)(i), a creditor or other person may 
impose a credit report fee in connection with the consumer's 
application for a mortgage loan that is subject to Sec.  
1026.19(e)(1)(i) as provided in Sec.  1026.19(e)(2)(i)(B). The consumer 
must have received the disclosures required under Sec.  
1026.19(e)(1)(i) and indicated an intent to proceed with the 
transaction described by those disclosures before paying or incurring 
any other fee imposed by a creditor or other person in connection with 
the consumer's application for a mortgage loan that is subject to Sec.  
1026.19(e)(1)(i).

[[Page 80316]]

    4. Collection of fees. A creditor or other person complies with 
Sec.  1026.19(e)(2)(i)(A) if:
    i. A creditor receives a consumer's application directly from the 
consumer and does not impose any fee, other than a bona fide and 
reasonable fee for obtaining a consumer's credit report, until the 
consumer receives the disclosures required under Sec.  1026.19(e)(1)(i) 
and indicates an intent to proceed with the transaction described by 
those disclosures.
    ii. A third party submits a consumer's application to a creditor 
and neither the creditor nor the third party imposes any fee, other 
than a bona fide and reasonable fee for obtaining a consumer's credit 
report, until the consumer receives the disclosures required under 
Sec.  1026.19(e)(1)(i) and indicates an intent to proceed with the 
transaction described by those disclosures.
    iii. A third party submits a consumer's application to a creditor 
following a different creditor's denial of the consumer's application 
(or following the consumer's withdrawal of that application), and if a 
fee already has been assessed for obtaining the credit report, the new 
creditor or third party does not impose any additional fee until the 
consumer receives disclosures required under Sec.  1026.19(e)(1)(i) 
from the new creditor and indicates an intent to proceed with the 
transaction described by those disclosures.
    5. Fees ``imposed by'' a person. For purposes of Sec.  1026.19(e), 
a fee is ``imposed by'' a person if the person requires a consumer to 
provide a method for payment, even if the payment is not made at that 
time. For example, if a creditor or other person requires the consumer 
to provide a $500 check to pay for a ``processing fee'' before the 
consumer receives the disclosures required by Sec.  1026.19(e)(1)(i), 
the creditor or other person does not comply with Sec.  
1026.19(e)(2)(i), even if the creditor or other person had stated that 
the check will not be cashed until after the disclosures required by 
Sec.  1026.19(e)(1)(i) are received by the consumer and waited until 
after the consumer subsequently indicated an intent to proceed to cash 
the check. Similarly, a creditor or other person does not comply with 
the requirements of Sec.  1026.19(e)(2)(i) if the creditor or other 
person requires the consumer to provide a credit card number before the 
consumer receives the disclosures required by Sec.  1026.19(e)(1)(i), 
even if the creditor or other person had promised not to charge the 
consumer's credit card for the $500 processing fee until after the 
disclosures required by Sec.  1026.19(e)(1)(i) are received by the 
consumer and waited until after the consumer subsequently indicated an 
intent to proceed. In contrast, a creditor or other person complies 
with Sec.  1026.19(e)(2)(i) if the creditor or other person requires 
the consumer to provide a credit card number before the consumer 
receives the disclosures required by Sec.  1026.19(e)(1)(i) and 
subsequently indicates an intent to proceed, provided that the 
consumer's authorization is only to pay for the cost of a credit report 
and the creditor or other person only charges a reasonable and bona 
fide fee for obtaining the consumer's credit report. This is so even if 
the creditor or other person maintains the consumer's credit card 
number on file and charges the consumer a $500 processing fee after the 
disclosures required by Sec.  1026.19(e)(1)(i) are received and the 
consumer subsequently indicates an intent to proceed with the 
transaction described by those disclosures, provided that the creditor 
or other person requested and received a separate authorization from 
the consumer for the processing fee after the consumer received the 
disclosures required by Sec.  1026.19(e)(1)(i) and indicated an intent 
to proceed with the transaction described by those disclosures.
    19(e)(2)(i)(B) Exception to fee restriction.
    1. Requirements. A creditor or other person may impose a fee before 
the consumer receives the required disclosures if the fee is for 
purchasing a credit report on the consumer. The fee also must be bona 
fide and reasonable in amount. For example, a creditor or other person 
may collect a fee for obtaining a credit report if it is in the 
creditor's or other person's ordinary course of business to obtain a 
credit report. If the criteria in Sec.  1026.19(e)(2)(i)(B) are met, 
the creditor or other person must accurately describe or refer to this 
fee, for example, as a ``credit report fee.''
    19(e)(2)(ii) Written information provided to consumer.
    1. Requirements. Section 1026.19(e)(2)(ii) requires the creditor or 
other person to include a clear and conspicuous statement on the top of 
the front of the first page of a written estimate of terms or costs 
specific to the consumer if it is provided to the consumer before the 
consumer receives the disclosures required by Sec.  1026.19(e)(1)(i). 
For example, if the creditor provides a document showing the estimated 
monthly payment for a mortgage loan, and the estimate was based on the 
estimated loan amount and the consumer's estimated credit score, then 
the creditor must include the statement on the document. In contrast, 
if the creditor provides the consumer with a preprinted list of closing 
costs common in the consumer's area, the creditor need not include the 
statement. Similarly, the statement would not be required on a 
preprinted list of available rates for different loan products. This 
requirement does not apply to an advertisement, as defined in Sec.  
1026.2(a)(2). Section 1026.19(e)(2)(ii) requires that the notice must 
be in a font size that is no smaller than 12-point font, and must 
state: ``Your actual rate, payment, and costs could be higher. Get an 
official Loan Estimate before choosing a loan.'' See form H-26 of 
appendix H to this part for a model statement. Section 
1026.19(e)(2)(ii) also prohibits the creditor or other person from 
making these written estimates with headings, content, and format 
substantially similar to form H-24 or H-25 of appendix H to this part.
    19(e)(2)(iii) Verification of information.
    1. Requirements. The creditor or other person may collect from the 
consumer any information that it requires prior to providing the early 
disclosures before or at the same time as collecting the information 
listed in Sec.  1026.2(a)(3)(ii). However, the creditor or other person 
is not permitted to require, before providing the disclosures required 
by Sec.  1026.19(e)(1)(i), that the consumer submit documentation to 
verify the information collected from the consumer. See also Sec.  
1026.2(a)(3) and the related commentary regarding the definition of 
application. To illustrate:
    i. A creditor may ask for the sale price and address of the 
property, but the creditor may not require the consumer to provide a 
purchase and sale agreement to support the information the consumer 
provides orally before the creditor provides the disclosures required 
by Sec.  1026.19(e)(1)(i).
    ii. A mortgage broker may ask for the names, account numbers, and 
balances of the consumer's checking and savings accounts, but the 
mortgage broker may not require the consumer to provide bank 
statements, or similar documentation, to support the information the 
consumer provides orally before the mortgage broker provides the 
disclosures required by Sec.  1026.19(e)(1)(i).
    19(e)(3) Good faith determination for estimates of closing costs.
    19(e)(3)(i) General rule.
    1. Requirement. Section 1026.19(e)(3)(i) provides the general rule 
that an estimated closing cost disclosed pursuant to Sec.  1026.19(e) 
is not

[[Page 80317]]

in good faith if the charge paid by or imposed on the consumer exceeds 
the amount originally disclosed under Sec.  1026.19(e)(1)(i). Although 
Sec.  1026.19(e)(3)(ii) and (iii) provide exceptions to the general 
rule, the charges that remain subject to Sec.  1026.19(e)(3)(i) 
include, but are not limited to, the following:
    i. Fees paid to the creditor.
    ii. Fees paid to a mortgage broker.
    iii. Fees paid to an affiliate of the creditor or a mortgage 
broker.
    iv. Fees paid to an unaffiliated third party if the creditor did 
not permit the consumer to shop for a third party service provider for 
a settlement service.
    v. Transfer taxes.
    2. Charges ``paid by or imposed on the consumer.'' For purposes of 
Sec.  1026.19(e), a charge ``paid by or imposed on the consumer'' 
refers to the final amount for the charge paid by or imposed on the 
consumer at consummation or settlement, whichever is later. 
``Consummation'' is defined in Sec.  1026.2(a)(13). ``Settlement'' is 
defined in Regulation X, 12 CFR 1024.2(b). For example, at 
consummation, the consumer pays the creditor $100 for recording fees. 
Settlement of the transaction concludes five days after consummation, 
and the actual recording fees are $70. The creditor refunds the 
consumer $30 immediately after recording. The recording fee paid by the 
consumer is $70.
    3. Fees ``paid to'' a person. For purposes of Sec.  1026.19(e), a 
fee is not considered ``paid to'' a person if the person does not 
retain the fee. For example, if a consumer pays the creditor transfer 
taxes and recording fees at the real estate closing and the creditor 
subsequently uses those funds to pay the county that imposed these 
charges, then the transfer taxes and recording fees are not ``paid to'' 
the creditor for purposes of Sec.  1026.19(e). Similarly, if a consumer 
pays the creditor an appraisal fee in advance of the real estate 
closing and the creditor subsequently uses those funds to pay another 
party for an appraisal, then the appraisal fee is not ``paid to'' the 
creditor for the purposes of Sec.  1026.19(e). A fee is also not 
considered ``paid to'' a person, for purposes of Sec.  1026.19(e), if 
the person retains the fee as reimbursement for an amount it has 
already paid to another party. If a creditor pays for an appraisal in 
advance of the real estate closing and the consumer pays the creditor 
an appraisal fee at the real estate closing, then the fee is not ``paid 
to'' the creditor for the purposes of Sec.  1026.19(e), even though the 
creditor retains the fee, because the payment is a reimbursement for an 
amount already paid.
    4. Transfer taxes and recording fees. See comments 37(g)(1)-1, -2, 
and -3 for a discussion of the difference between transfer taxes and 
recording fees.
    5. Lender credits. The disclosure of ``lender credits,'' as 
identified in Sec.  1026.37(g)(6)(ii), is required by Sec.  
1026.19(e)(1)(i). ``Lender credits,'' as identified in Sec.  
1026.37(g)(6)(ii), represents the sum of non-specific lender credits 
and specific lender credits. Non-specific lender credits are 
generalized payments from the creditor to the consumer that do not pay 
for a particular fee on the disclosures provided pursuant to Sec.  
1026.19(e)(1). Specific lender credits are specific payments, such as a 
credit, rebate, or reimbursement, from a creditor to the consumer to 
pay for a specific fee. Non-specific lender credits and specific lender 
credits are negative charges to the consumer. The actual total amount 
of lender credits, whether specific or non-specific, provided by the 
creditor that is less than the estimated ``lender credits'' identified 
in Sec.  1026.37(g)(6)(ii) and disclosed pursuant to Sec.  1026.19(e) 
is an increased charge to the consumer for purposes of determining good 
faith under Sec.  1026.19(e)(3)(i). For example, if the creditor 
discloses a $750 estimate for ``lender credits'' pursuant to Sec.  
1026.19(e), but only $500 of lender credits is actually provided to the 
consumer, the creditor has not complied with Sec.  1026.19(e)(3)(i) 
because the actual amount of lender credits provided is less than the 
estimated ``lender credits'' disclosed pursuant to Sec.  1026.19(e), 
and is therefore, an increased charge to the consumer for purposes of 
determining good faith under Sec.  1026.19(e)(3)(i). However, if the 
creditor discloses a $750 estimate for ``lender credits'' identified in 
Sec.  1026.37(g)(6)(ii) to cover the cost of a $750 appraisal fee, and 
the appraisal fee subsequently increases by $150, and the creditor 
increases the amount of the lender credit by $150 to pay for the 
increase, the credit is not being revised in a way that violates the 
requirements of Sec.  1026.19(e)(3)(i) because, although the credit 
increased from the amount disclosed, the amount paid by the consumer 
did not. However, if the creditor discloses a $750 estimate for 
``lender credits'' to cover the cost of a $750 appraisal fee, but 
subsequently reduces the credit by $50 because the appraisal fee 
decreased by $50, then the requirements of Sec.  1026.19(e)(3)(i) have 
been violated because, although the amount of the appraisal fee 
decreased, the amount of the lender credit decreased. See also Sec.  
1026.19(e)(3)(iv)(D) and comment 19(e)(3)(iv)(D)-1 for a discussion of 
lender credits in the context of interest rate dependent charges.
    6. Good faith analysis for lender credits. For purposes of 
conducting the good faith analysis required under Sec.  
1026.19(e)(3)(i) for lender credits, the total amount of lender 
credits, whether specific or non-specific, actually provided to the 
consumer is compared to the amount of the ``lender credits'' identified 
in Sec.  1026.37(g)(6)(ii). The total amount of lender credits actually 
provided to the consumer is determined by aggregating the amount of the 
``lender credits'' identified in Sec.  1026.38(h)(3) with the amounts 
paid by the creditor that are attributable to a specific loan cost or 
other cost, disclosed pursuant to Sec.  1026.38(f) and (g).
    7. Use of unrounded numbers. Sections 1026.37(o)(4) and 
1026.38(t)(4) require that the dollar amounts of certain charges 
disclosed on the Loan Estimate and Closing Disclosure, respectively, to 
be rounded to the nearest whole dollar. However, to conduct the good 
faith analysis required under Sec.  1026.19(e)(3)(i) and (ii), the 
creditor should use unrounded numbers to compare the actual charge paid 
by or imposed on the consumer for a settlement service with the 
estimated cost of the service.
    19(e)(3)(ii) Limited increases permitted for certain charges.
    1. Requirements. Section 1026.19(e)(3)(ii) provides that certain 
estimated charges are in good faith if the sum of all such charges paid 
by or imposed on the consumer does not exceed the sum of all such 
charges disclosed pursuant to Sec.  1026.19(e) by more than 10 percent. 
Section 1026.19(e)(3)(ii) permits this limited increase for only the 
following items:
    i. Fees paid to an unaffiliated third party if the creditor 
permitted the consumer to select a settlement service provider that is 
not on the list provided pursuant to Sec.  1026.19(e)(1)(vi) and 
discloses that the consumer may do so on that list.
    ii. Recording fees.
    2. Aggregate increase limited to ten percent. Pursuant to Sec.  
1026.19(e)(3)(ii), whether an individual estimated charge subject to 
Sec.  1026.19(e)(3)(ii) is in good faith depends on whether the sum of 
all charges subject to Sec.  1026.19(e)(3)(ii) increases by more than 
10 percent, even if a particular charge does not increase by more than 
10 percent. For example, if, in the disclosures provided pursuant to 
Sec.  1026.19(e)(1)(i), the creditor includes a $300 estimated fee for 
a settlement agent, the settlement agent fee is included in the 
category of

[[Page 80318]]

charges subject to Sec.  1026.19(e)(3)(ii), and the sum of all charges 
subject to Sec.  1026.19(e)(3)(ii) (including the settlement agent fee) 
equals $1,000 then the creditor does not violate Sec.  
1026.19(e)(3)(ii) if the actual settlement agent fee exceeds 10 percent 
(i.e., exceeds $330), provided that the sum of all such charges does 
not exceed 10 percent (i.e., $1,100). Section 1026.19(e)(3)(ii) also 
provides flexibility in disclosing individual fees by focusing on 
aggregate amounts. For example, assume that, in the disclosures 
provided pursuant to Sec.  1026.19(e)(1)(i), the sum of all estimated 
charges subject to Sec.  1026.19(e)(3)(ii) equals $1,000. If the 
creditor does not include an estimated charge for a notary fee but a 
$10 notary fee is charged to the consumer, and the notary fee is 
subject to Sec.  1026.19(e)(3)(ii), then the creditor does not violate 
Sec.  1026.19(e)(1)(i) if the sum of all amounts charged to the 
consumer subject to Sec.  1026.19(e)(3)(ii) does not exceed $1,100, 
even though an individual notary fee was not included in the estimated 
disclosures provided pursuant to Sec.  1026.19(e)(1)(i).
    3. Services for which the consumer may, but does not, select a 
settlement service provider. Good faith is determined pursuant to Sec.  
1026.19(e)(3)(ii), instead of Sec.  1026.19(e)(3)(i), if the creditor 
permits the consumer to shop for a settlement service provider, 
consistent with Sec.  1026.19(e)(1)(vi)(A). Section 1026.19(e)(3)(ii) 
provides that if the creditor requires a service in connection with the 
mortgage loan transaction, and permits the consumer to shop for that 
service consistent with Sec.  1026.19(e)(1)(vi), but the consumer 
either does not select a settlement service provider or chooses a 
settlement service provider identified by the creditor on the list, 
then good faith is determined pursuant to Sec.  1026.19(e)(3)(ii), 
instead of Sec.  1026.19(e)(3)(i). For example, if, in the disclosures 
provided pursuant to Sec. Sec.  1026.19(e)(1)(i) and 1026.37(f)(3), a 
creditor discloses an estimated fee for an unaffiliated settlement 
agent and permits the consumer to shop for that service, but the 
consumer either does not choose a provider, or chooses a provider 
identified by the creditor on the written list provided pursuant to 
Sec.  1026.19(e)(1)(vi)(C), then the estimated settlement agent fee is 
included with the fees that may, in aggregate, increase by no more than 
10 percent for the purposes of Sec.  1026.19(e)(3)(ii). If, however, 
the consumer chooses a provider that is not on the written list, then 
good faith is determined according to Sec.  1026.19(e)(3)(iii).
    4. Recording fees. Section 1026.19(e)(3)(ii) provides that an 
estimate of a charge for a third-party service or recording fees is in 
good faith if the conditions specified in Sec.  1026.19(e)(3)(ii)(A), 
(B), and (C) are satisfied. Recording fees are not charges for third-
party services because recording fees are paid to the applicable 
government entity where the documents related to the mortgage 
transaction are recorded, and thus, the condition specified in Sec.  
1026.19(e)(3)(ii)(B) that the charge for third-party service not be 
paid to an affiliate of the creditor is inapplicable for recording 
fees. The condition specified in Sec.  1026.19(e)(3)(ii)(C), that the 
creditor permits the consumer to shop for the third-party service, is 
similarly inapplicable. Therefore, estimates of recording fees need 
only satisfy the condition specified in Sec.  1026.19(e)(3)(ii)(A) to 
meet the requirements of Sec.  1026.19(e)(3)(ii).
    5. Calculating the aggregate amount of estimated charges. In 
calculating the aggregate amount of estimated charges for purposes of 
conducting the good faith analysis pursuant to Sec.  1026.19(e)(3)(ii), 
the aggregate amount of estimated charges must reflect charges for 
services that are actually performed. For example, assume that the 
creditor included a $100 estimated fee for a pest inspection in the 
disclosures provided pursuant to Sec.  1026.19(e)(1)(i), and the fee is 
included in the category of charges subject to Sec.  1026.19(e)(3)(ii), 
but a pest inspection was not obtained in connection with the 
transaction, then for purposes of the good faith analysis required 
under Sec.  1026.19(e)(3)(ii), the sum of all charges subject to Sec.  
1026.19(e)(3)(ii) paid by or imposed on the consumer is compared to the 
sum of all such charges disclosed pursuant to Sec.  1026.19(e), minus 
the $100 estimated pest inspection fee.
    19(e)(3)(iii) Variations permitted for certain charges.
    1. Good faith requirement for prepaid interest, property insurance 
premiums, and escrowed amounts. Estimates of prepaid interest, property 
insurance premiums, and amounts placed into an escrow, impound, reserve 
or similar account must be consistent with the best information 
reasonably available to the creditor at the time the disclosures are 
provided. Differences between the amounts of such charges disclosed 
under Sec.  1026.19(e)(1)(i) and the amounts of such charges paid by or 
imposed on the consumer do not constitute a lack of good faith, so long 
as the original estimated charge, or lack of an estimated charge for a 
particular service, was based on the best information reasonably 
available to the creditor at the time the disclosure was provided. This 
means that the estimate disclosed under Sec.  1026.19(e)(1)(i) was 
obtained by the creditor through due diligence, acting in good faith. 
See comments 17(c)(2)(i)-1 and 19(e)(1)(i)-1. For example, if the 
creditor requires homeowner's insurance but fails to include a 
homeowner's insurance premium on the estimates provided pursuant to 
Sec.  1026.19(e)(1)(i), then the creditor's failure to disclose does 
not comply with Sec.  1026.19(e)(3)(iii). However, if the creditor does 
not require flood insurance and the subject property is located in an 
area where floods frequently occur, but not specifically located in a 
zone where flood insurance is required, failure to include flood 
insurance on the original estimates provided pursuant to Sec.  
1026.19(e)(1)(i) does not constitute a lack of good faith under Sec.  
1026.19(e)(3)(iii). Or, if the creditor knows that the loan must close 
on the 15th of the month but estimates prepaid interest to be paid from 
the 30th of that month, then the under-disclosure does not comply with 
Sec.  1026.19(e)(3)(iii). If, however, the creditor estimates 
consistent with the best information reasonably available that the loan 
will close on the 30th of the month and bases the estimate of prepaid 
interest accordingly, but the loan actually closed on the 1st of the 
next month instead, the creditor complies with Sec.  
1026.19(e)(3)(iii).
    2. Good faith requirement for required services chosen by the 
consumer. If a service is required by the creditor, the creditor 
permits the consumer to shop for that service consistent with Sec.  
1026.19(e)(1)(vi)(A), the creditor provides the list required by Sec.  
1026.19(e)(1)(vi)(C), and the consumer chooses a service provider that 
is not on that list to perform that service, then the actual amounts of 
such fees need not be compared to the original estimates for such fees 
to perform the good faith analysis required by Sec.  1026.19(e)(3)(i) 
or (ii). Differences between the amounts of such charges disclosed 
pursuant to Sec.  1026.19(e)(1)(i) and the amounts of such charges paid 
by or imposed on the consumer do not constitute a lack of good faith, 
so long as the original estimated charge, or lack of an estimated 
charge for a particular service, was based on the best information 
reasonably available to the creditor at the time the disclosure was 
provided. For example, if the consumer informs the creditor that the 
consumer will

[[Page 80319]]

choose a settlement agent not identified by the creditor on the written 
list provided pursuant to Sec.  1026.19(e)(1)(vi)(C), and the creditor 
subsequently discloses an unreasonably low estimated settlement agent 
fee, then the under-disclosure does not comply with Sec.  
1026.19(e)(3)(iii). If the creditor permits the consumer to shop 
consistent with Sec.  1026.19(e)(1)(vi)(A) but fails to provide the 
list required by Sec.  1026.19(e)(1)(vi)(C), good faith is determined 
pursuant to Sec.  1026.19(e)(3)(ii) instead of Sec.  1026.19(e)(3)(iii) 
regardless of the provider selected by the consumer, unless the 
provider is an affiliate of the creditor in which case good faith is 
determined pursuant to Sec.  1026.19(e)(3)(i).
    3. Good faith requirement for non-required services chosen by the 
consumer. Differences between the amounts of estimated charges for 
services not required by the creditor disclosed pursuant to Sec.  
1026.19(e)(1)(i) and the amounts of such charges paid by or imposed on 
the consumer do not constitute a lack of good faith, so long as the 
original estimated charge, or lack of an estimated charge for a 
particular service, was based on the best information reasonably 
available to the creditor at the time the disclosure was provided. For 
example, if the consumer informs the creditor that the consumer will 
obtain a type of inspection not required by the creditor, the creditor 
must include the charge for that item in the disclosures provided 
pursuant to Sec.  1026.19(e)(1)(i), but the actual amount of the 
inspection fee need not be compared to the original estimate for the 
inspection fee to perform the good faith analysis required by Sec.  
1026.19(e)(3)(iii). The original estimated charge, or lack of an 
estimated charge for a particular service, complies with Sec.  
1026.19(e)(3)(iii) if it is made based on the best information 
reasonably available to the creditor at the time that the estimate was 
provided. But, for example, if the subject property is located in a 
jurisdiction where consumers are customarily represented at closing by 
their own attorney, even though it is not a requirement, and the 
creditor fails to include a fee for the consumer's attorney, or 
includes an unreasonably low estimate for such fee, on the original 
estimates provided pursuant to Sec.  1026.19(e)(1)(i), then the 
creditor's failure to disclose, or under-estimation, does not comply 
with Sec.  1026.19(e)(3)(iii).
    19(e)(3)(iv) Revised estimates.
    1. Requirement. Pursuant to Sec.  1026.19(e)(3)(i) and (ii), good 
faith is determined by calculating the difference between the estimated 
charges originally provided pursuant to Sec.  1026.19(e)(1)(i) and the 
actual charges paid by or imposed on the consumer. Section 
1026.19(e)(3)(iv) provides the exception to this rule. Pursuant to 
Sec.  1026.19(e)(3)(iv), for purposes of determining good faith under 
Sec.  1026.19(e)(3)(i) and (ii), the creditor may use a revised 
estimate of a charge instead of the amount originally disclosed under 
Sec.  1026.19(e)(1)(i) if the revision is due to one of the reasons set 
forth in Sec.  1026.19(e)(3)(iv)(A) through (F).
    2. Actual increase. The revised disclosures may reflect increased 
charges only to the extent that the reason for revision, as identified 
in Sec.  1026.19(e)(3)(iv)(A) through (F), actually increased the 
particular charge. For example, if a consumer requests a rate lock 
extension, then the revised disclosures may reflect a new rate lock 
extension fee, but the fee may be no more than the rate lock extension 
fee charged by the creditor in its usual course of business, and other 
charges unrelated to the rate lock extension may not change.
    3. Documentation requirement. In order to comply with Sec.  
1026.25, creditors must retain records demonstrating compliance with 
the requirements of Sec.  1026.19(e). For example, if revised 
disclosures are provided because of a changed circumstance under Sec.  
1026.19(e)(3)(iv)(A) affecting settlement costs, the creditor must be 
able to show compliance with Sec.  1026.19(e) by documenting the 
original estimate of the cost at issue, explaining the reason for 
revision and how it affected settlement costs, showing that the 
corrected disclosure increased the estimate only to the extent that the 
reason for revision actually increased the cost, and showing that the 
timing requirements of Sec.  1026.19(e)(4) were satisfied. However, the 
documentation requirement does not require separate corrected 
disclosures for each change. A creditor may provide corrected 
disclosures reflecting multiple changed circumstances, provided that 
the creditor's documentation demonstrates that each correction complies 
with the requirements of Sec.  1026.19(e).
    19(e)(3)(iv)(A) Changed circumstance affecting settlement charges.
    1. Requirement. For the purpose of determining good faith under 
Sec.  1026.19(e)(3)(i) and (ii), revised charges are compared to actual 
charges if the revision was caused by a changed circumstance. See also 
comment 19(e)(3)(iv)(A)-2 regarding the definition of a changed 
circumstance. The following examples illustrate the application of this 
provision:
    i. Charges subject to the zero percent tolerance category. Assume a 
creditor provides a $200 estimated appraisal fee pursuant to Sec.  
1026.19(e)(1)(i), which will be paid to an affiliated appraiser and 
therefore may not increase for purposes of determining good faith under 
Sec.  1026.19(e)(3)(i), except as provided in Sec.  1026.19(e)(3)(iv). 
The estimate was based on information provided by the consumer at 
application, which included information indicating that the subject 
property was a single-family dwelling. Upon arrival at the subject 
property, the appraiser discovers that the property is actually a 
single-family dwelling located on a farm. A different schedule of 
appraisal fees applies to residences located on farms. A changed 
circumstance has occurred (i.e., information provided by the consumer 
is found to be inaccurate after the disclosures required under Sec.  
1026.19(e)(1)(i) were provided), which caused an increase in the cost 
of the appraisal. Therefore, if the creditor issues revised disclosures 
with the corrected appraisal fee, the actual appraisal fee of $400 paid 
at the real estate closing by the consumer will be compared to the 
revised appraisal fee of $400 to determine if the actual fee has 
increased above the estimated fee. However, if the creditor failed to 
provide revised disclosures, then the actual appraisal fee of $400 must 
be compared to the originally disclosed estimated appraisal fee of 
$200.
    ii. Charges subject to the ten percent tolerance category. Assume a 
creditor provides a $400 estimate of title fees, which are included in 
the category of fees which may not increase by more than 10 percent for 
the purposes of determining good faith under Sec.  1026.19(e)(3)(ii), 
except as provided in Sec.  1026.19(e)(3)(iv). An unreleased lien is 
discovered and the title company must perform additional work to 
release the lien. However, the additional costs amount to only a five 
percent increase over the sum of all fees included in the category of 
fees which may not increase by more than 10 percent. A changed 
circumstance has occurred (i.e., new information), but the sum of all 
costs subject to the 10 percent tolerance category has not increased by 
more than 10 percent. Section 1026.19(e)(3)(iv) does not prohibit the 
creditor from issuing revised disclosures, but if the creditor issues 
revised disclosures in this scenario, when the disclosures required by 
Sec.  1026.19(f)(1)(i) are delivered, the actual title fees of $500

[[Page 80320]]

may not be compared to the revised title fees of $500; they must be 
compared to the originally estimated title fees of $400 because the 
changed circumstance did not cause the sum of all costs subject to the 
10 percent tolerance category to increase by more than 10 percent.
    2. Changed circumstance. A changed circumstance may be an 
extraordinary event beyond the control of any interested party. For 
example, a war or a natural disaster would be an extraordinary event 
beyond the control of an interested party. A changed circumstance may 
also be an unexpected event specific to the consumer or the 
transaction. For example, if the creditor provided an estimate of title 
insurance on the disclosures required under Sec.  1026.19(e)(1)(i), but 
the title insurer goes out of business during underwriting, then this 
unexpected event specific to the transaction is a changed circumstance. 
A changed circumstance may also be information specific to the consumer 
or transaction that the creditor relied upon when providing the 
disclosures required under Sec.  1026.19(e)(1)(i) and that was 
inaccurate or changed after the disclosures were provided. For example, 
if the creditor relied on the consumer's income when providing the 
disclosures required under Sec.  1026.19(e)(1)(i), and the consumer 
represented to the creditor that the consumer had an annual income of 
$90,000, but underwriting determines that the consumer's annual income 
is only $80,000, then this inaccuracy in information relied upon is a 
changed circumstance. Or, assume two co-applicants applied for a 
mortgage loan. One applicant's income was $30,000, while the other 
applicant's income was $50,000. If the creditor relied on the combined 
income of $80,000 when providing the disclosures required under Sec.  
1026.19(e)(1)(i), but the applicant earning $30,000 becomes unemployed 
during underwriting, thereby reducing the combined income to $50,000, 
then this change in information relied upon is a changed circumstance. 
A changed circumstance may also be the discovery of new information 
specific to the consumer or transaction that the creditor did not rely 
on when providing the original disclosures required under Sec.  
1026.19(e)(1)(i). For example, if the creditor relied upon the value of 
the property in providing the disclosures required under Sec.  
1026.19(e)(1)(i), but during underwriting a neighbor of the seller, 
upon learning of the impending sale of the property, files a claim 
contesting the boundary of the property to be sold, then this new 
information specific to the transaction is a changed circumstance.
    3. Six pieces of information presumed collected, but not required. 
Section 1026.19(e)(1)(iii) requires creditors to deliver the 
disclosures not later than the third business day after the creditor 
receives the consumer's application, which consists of the six pieces 
of information identified in Sec.  1026.2(a)(3)(ii). A creditor is not 
required to collect the consumer's name, monthly income, social 
security number to obtain a credit report, the property address, an 
estimate of the value of the property, or the mortgage loan amount 
sought. However, for purposes of determining whether an estimate is 
provided in good faith under Sec.  1026.19(e)(1)(i), a creditor is 
presumed to have collected these six pieces of information. For 
example, if a creditor provides the disclosures required by Sec.  
1026.19(e)(1)(i) prior to receiving the property address from the 
consumer, the creditor cannot subsequently claim that the receipt of 
the property address is a changed circumstance pursuant to Sec.  
1026.19(e)(3)(iv)(A) or (B).
    19(e)(3)(iv)(B) Changed circumstance affecting eligibility.
    1. Requirement. If changed circumstances cause a change in the 
consumer's eligibility for specific loan terms disclosed pursuant to 
Sec.  1026.19(e)(1)(i) and revised disclosures are provided because the 
change in eligibility resulted in increased cost for a settlement 
service beyond the applicable tolerance threshold, the charge paid by 
or imposed on the consumer for the settlement service for which cost 
increased due to the change in eligibility is compared to the revised 
estimated cost for the settlement service to determine if the actual 
fee has increased above the estimated fee. For example, assume that, 
prior to providing the disclosures required by Sec.  1026.19(e)(1)(i), 
the creditor believed that the consumer was eligible for a loan program 
that did not require an appraisal. The creditor then provides the 
estimated disclosures required by Sec.  1026.19(e)(1)(i), which do not 
include an estimated charge for an appraisal. During underwriting it is 
discovered that the consumer was delinquent on mortgage loan payments 
in the past, making the consumer ineligible for the loan program 
originally identified on the estimated disclosures, but the consumer 
remains eligible for a different program that requires an appraisal. If 
the creditor provides revised disclosures reflecting the new program 
and including the appraisal fee, then the actual appraisal fee will be 
compared to the appraisal fee included in the revised disclosures to 
determine if the actual fee has increased above the estimated fee. 
However, if the revised disclosures also include increased estimates 
for title fees, the actual title fees must be compared to the original 
estimates assuming that the increased title fees do not stem from the 
change in eligibility or any other change warranting a revised 
disclosure. See also Sec.  1026.19(e)(3)(iv)(A) and comment 
19(e)(3)(iv)(A)-2 regarding the definition of changed circumstances.
    19(e)(3)(iv)(C) Revisions requested by the consumer.
    1. Requirement. If the consumer requests revisions to the 
transaction that affect items disclosed pursuant to Sec.  
1026.19(e)(1)(i), and the creditor provides revised disclosures 
reflecting the consumer's requested changes, the final disclosures are 
compared to the revised disclosures to determine whether the actual fee 
has increased above the estimated fee. For example, assume that the 
consumer decides to grant a power of attorney authorizing a family 
member to consummate the transaction on the consumer's behalf after the 
disclosures required under Sec.  1026.19(e)(1)(i) are provided. If the 
creditor provides revised disclosures reflecting the fee to record the 
power of attorney, then the actual charges will be compared to the 
revised charges to determine if the fees have increased.
    19(e)(3)(iv)(D) Interest rate dependent charges.
    1. Requirements. If the interest rate is not locked when the 
disclosures required by Sec.  1026.19(e)(1)(i) are provided, a valid 
reason for revision exists when the interest rate is subsequently 
locked. On the date the interest rate is locked, Sec.  
1026.19(e)(3)(iv)(D) requires the creditor to provide a revised version 
of the disclosures required under Sec.  1026.19(e)(1)(i) reflecting the 
revised interest rate, the points disclosed pursuant to Sec.  
1026.37(f)(1), lender credits, and any other interest rate dependent 
charges and terms. The following examples illustrate this requirement:
    i. Assume a creditor sets the interest rate by executing a rate 
lock agreement with the consumer. If such an agreement exists when the 
original disclosures required under Sec.  1026.19(e)(1)(i) are 
provided, then the actual points and lender credits are compared to the 
estimated points disclosed pursuant to Sec.  1026.37(f)(1) and lender 
credits included in the original disclosures provided under Sec.  
1026.19(e)(1)(i) for the

[[Page 80321]]

purpose of determining good faith pursuant to Sec.  1026.19(e)(3)(i). 
If the consumer enters into a rate lock agreement with the creditor 
after the disclosures required under Sec.  1026.19(e)(1)(i) were 
provided, then Sec.  1026.19(e)(3)(iv)(D) requires the creditor to 
provide, on the date that the consumer and the creditor enters into a 
rate lock agreement, a revised version of the disclosures required 
under Sec.  1026.19(e)(1)(i) reflecting the revised interest rate, the 
points disclosed pursuant to Sec.  1026.37(f)(1), lender credits, and 
any other interest rate dependent charges and terms. Provided that the 
revised version of the disclosures required under Sec.  
1026.19(e)(1)(i) reflect any revised points disclosed pursuant to Sec.  
1026.37(f)(1) and lender credits, the actual points and lender credits 
are compared to the revised points and lender credits for the purpose 
of determining good faith pursuant to Sec.  1026.19(e)(3)(i).
    19(e)(3)(iv)(E) Expiration.
    1. Requirements. If the consumer indicates an intent to proceed 
with the transaction more than ten business days after the disclosures 
were originally provided pursuant to Sec.  1026.19(e)(1)(iii), for the 
purpose of determining good faith under Sec.  1026.19(e)(3)(i) and 
(ii), a creditor may use a revised estimate of a charge instead of the 
amount originally disclosed under Sec.  1026.19(e)(1)(i). Section 
1026.19(e)(3)(iv)(E) requires no justification for the change to the 
original estimate other than the lapse of ten business days. For 
example, assume a creditor includes a $500 underwriting fee on the 
disclosures provided pursuant to Sec.  1026.19(e)(1)(i) and the 
creditor delivers those disclosures on a Monday. If the consumer 
indicates intent to proceed 11 business days later, the creditor may 
provide new disclosures with a $700 underwriting fee. In this example, 
Sec.  1026.19(e) and Sec.  1026.25 require the creditor to document 
that a new disclosure was provided pursuant to Sec.  
1026.19(e)(3)(iv)(E), but do not require the creditor to document a 
reason for the increase in the underwriting fee.
    19(e)(3)(iv)(F) Delayed settlement date on a construction loan.
    1. Requirements. A loan for the purchase of a home that has yet to 
be constructed, or a loan to purchase a home under construction (i.e., 
construction is currently underway), is a construction loan to build a 
home for the purposes of Sec.  1026.19(e)(3)(iv)(F). However, if a use 
and occupancy permit has been issued for the home prior to the issuance 
of the disclosures required under Sec.  1026.19(e)(1)(i), then the home 
is not considered to be under construction and the transaction would 
not be a construction loan to build a home for the purposes of Sec.  
1026.19(e)(3)(iv)(F).
    19(e)(4) Provision and receipt of revised disclosures.
    19(e)(4)(i) General rule.
    1. Three-business-day requirement. Section 1026.19(e)(4)(i) 
provides that subject to the requirements of Sec.  1026.19(e)(4)(ii), 
if a creditor uses a revised estimate pursuant to Sec.  
1026.19(e)(3)(iv) for the purpose of determining good faith under Sec.  
1026.19(e)(3)(i) and (ii), the creditor shall provide a revised version 
of the disclosures required under Sec.  1026.19(e)(1)(i) reflecting the 
revised estimate within three business days of receiving information 
sufficient to establish that one of the reasons for revision provided 
under Sec.  1026.19(e)(3)(iv)(A) through (C), (E) and (F) has occurred. 
The following examples illustrate these requirements:
    i. Assume a creditor requires a pest inspection. The unaffiliated 
pest inspection company informs the creditor on Monday that the subject 
property contains evidence of termite damage, requiring a further 
inspection, the cost of which will cause an increase in estimated 
settlement charges subject to Sec.  1026.19(e)(3)(ii) by more than 10 
percent. The creditor must provide revised disclosures by Thursday to 
comply with Sec.  1026.19(e)(4)(i).
    ii. Assume a creditor receives information on Monday that, because 
of a changed circumstance under Sec.  1026.19(e)(3)(iv)(A), the title 
fees will increase by an amount totaling six percent of the originally 
estimated settlement charges subject to Sec.  1026.19(e)(3)(ii). The 
creditor had received information three weeks before that, because of a 
changed circumstance under Sec.  1026.19(e)(3)(iv)(A), the pest 
inspection fees increased by an amount totaling five percent of the 
originally estimated settlement charges subject to Sec.  
1026.19(e)(3)(ii). Thus, on Monday, the creditor has received 
sufficient information to establish a valid reason for revision and 
must provide revised disclosures reflecting the 11 percent increase by 
Thursday to comply with Sec.  1026.19(e)(4)(i).
    iii. Assume a creditor requires an appraisal. The creditor receives 
the appraisal report, which indicates that the value of the home is 
significantly lower than expected. However, the creditor has reason to 
doubt the validity of the appraisal report. A reason for revision has 
not been established because the creditor reasonably believes that the 
appraisal report is incorrect. The creditor then chooses to send a 
different appraiser for a second opinion, but the second appraiser 
returns a similar report. At this point, the creditor has received 
information sufficient to establish that a reason for revision has, in 
fact, occurred, and must provide corrected disclosures within three 
business days of receiving the second appraisal report. In this 
example, in order to comply with Sec.  1026.19(e)(3)(iv) and Sec.  
1026.25, the creditor must maintain records documenting the creditor's 
doubts regarding the validity of the appraisal to demonstrate that the 
reason for revision did not occur upon receipt of the first appraisal 
report.
    2. Relationship to Sec.  1026.19(e)(3)(iv)(D). If the reason for 
the revision is provided under Sec.  1026.19(e)(3)(iv)(D), 
notwithstanding the three-business-day rule set forth in Sec.  
1026.19(e)(4)(i), Sec.  1026.19(e)(3)(iv)(D) requires the creditor to 
provide a revised version of the disclosures required under Sec.  
1026.19(e)(1)(i) on the date the interest rate is locked. See comment 
19(e)(3)(iv)(D)-1.
    19(e)(4)(ii) Relationship to disclosures required under Sec.  
1026.19(f)(1)(i).
    1. Revised disclosures may not be delivered at the same time as the 
Closing Disclosure. Section 1026.19(e)(4)(ii) prohibits a creditor from 
providing a revised version of the disclosures required under Sec.  
1026.19(e)(1)(i) on or after the date on which the creditor provides 
the disclosures required under Sec.  1026.19(f)(1)(i). Section 
1026.19(e)(4)(ii) also requires that the consumer must receive a 
revised version of the disclosures required under Sec.  
1026.19(e)(1)(i) no later than four business days prior to 
consummation, and provides that if the revised version of the 
disclosures are not provided to the consumer in person, the consumer is 
considered to have received the revised version of the disclosures 
three business days after the creditor delivers or places in the mail 
the revised version of the disclosures. See also comments 19(e)(1)(iv)-
1 and -2. If, however, there are less than four business days between 
the time the revised version of the disclosures is required to be 
provided pursuant to Sec.  1026.19(e)(4)(i) and consummation, creditors 
comply with the requirements of Sec.  1026.19(e)(4) if the revised 
disclosures are reflected in the disclosures required by Sec.  
1026.19(f)(1)(i). See below for illustrative examples:
    i. If the creditor is scheduled to meet with the consumer and 
provide the disclosures required by Sec.  1026.19(f)(1)(i) on 
Wednesday, and the APR becomes inaccurate on Tuesday, the creditor

[[Page 80322]]

complies with the requirements of Sec.  1026.19(e)(4) by providing the 
disclosures required under Sec.  1026.19(f)(1)(i) reflecting the 
revised APR on Wednesday. However, the creditor does not comply with 
the requirements of Sec.  1026.19(e)(4) if it provided both a revised 
version of the disclosures required under Sec.  1026.19(e)(1)(i) 
reflecting the revised APR on Wednesday, and also provides the 
disclosures required under Sec.  1026.19(f)(1)(i) on Wednesday.
    ii. If the creditor is scheduled to email the disclosures required 
under Sec.  1026.19(f)(1)(i) to the consumer on Wednesday, and the 
consumer requests a change to the loan that would result in revised 
disclosures pursuant to Sec.  1026.19(e)(3)(iv)(C) on Tuesday, the 
creditor complies with the requirements of Sec.  1026.19(e)(4) by 
providing the disclosures required under Sec.  1026.19(f)(1)(i) 
reflecting the consumer-requested changes on Wednesday. However, the 
creditor does not comply if it provides both the revised version of the 
disclosures required under Sec.  1026.19(e)(1)(i) reflecting consumer 
requested changes, and also the disclosures required under Sec.  
1026.19(f)(1)(i) on Wednesday.
    19(f) Mortgage loans secured by real property--Final disclosures.
    19(f)(1) Provision of disclosures.
    19(f)(1)(i) Scope.
    1. Requirements. Section 1026.19(f)(1)(i) requires disclosure of 
the actual terms of the credit transaction, and the actual costs 
associated with the settlement of that transaction, for closed-end 
credit transactions that are secured by real property, other than 
reverse mortgages subject to Sec.  1026.33. For example, if the 
creditor requires the consumer to pay money into a reserve account for 
the future payment of taxes, the creditor must disclose to the consumer 
the exact amount that the consumer is required to pay into the reserve 
account. If the disclosures provided pursuant to Sec.  1026.19(f)(1)(i) 
do not contain the actual terms of the transaction, the creditor does 
not violate Sec.  1026.19(f)(1)(i) if the creditor provides corrected 
disclosures that contain the actual terms of the transaction and 
complies with the other requirements of Sec.  1026.19(f), including the 
timing requirements in Sec.  1026.19(f)(1)(ii) and (f)(2). For example, 
if the creditor provides the disclosures required by Sec.  
1026.19(f)(1)(i) on Monday, June 1, but the consumer adds a mobile 
notary service to the terms of the transaction on Tuesday, June 2, the 
creditor complies with Sec.  1026.19(f)(1)(i) if it provides 
disclosures reflecting the revised terms of the transaction on or after 
Tuesday, June 2, assuming that the corrected disclosures are also 
provided at or before consummation, pursuant to Sec.  1026.19(f)(2)(i).
    2. Best information reasonably available. Creditors may estimate 
disclosures provided under Sec.  1026.19(f)(1)(ii)(A) and (f)(2)(ii) 
using the best information reasonably available when the actual term is 
unknown to the creditor at the time disclosures are made, consistent 
with Sec.  1026.17(c)(2)(i).
    i. Actual term unknown. An actual term is unknown if it is not 
reasonably available to the creditor at the time the disclosures are 
made. The ``reasonably available'' standard requires that the creditor, 
acting in good faith, exercise due diligence in obtaining the 
information. For example, the creditor must at a minimum utilize 
generally accepted calculation tools, but need not invest in the most 
sophisticated computer program to make a particular type of 
calculation. The creditor normally may rely on the representations of 
other parties in obtaining information. For example, the creditor might 
look to the consumer for the time of consummation, to insurance 
companies for the cost of insurance, to realtors for taxes and escrow 
fees, or to a settlement agent for homeowner's association dues or 
other information in connection with a real estate settlement. The 
following examples illustrate the reasonably available standard for 
purposes of Sec.  1026.19(f)(1)(i).
    A. Assume a creditor provides the disclosure under Sec.  
1026.19(f)(1)(ii)(A) for a transaction in which the title insurance 
company that is providing the title insurance policies is acting as the 
settlement agent in connection with the transaction, but the creditor 
does not request the actual cost of the lender's title insurance policy 
that the consumer is purchasing from the title insurance company and 
instead discloses an estimate based on information from a different 
transaction. The creditor has not exercised due diligence in obtaining 
the information about the cost of the lender's title insurance policy 
required under the ``reasonably available'' standard in connection with 
the estimate disclosed for the lender's title insurance policy.
    B. Assume that in the prior example the creditor obtained 
information about the terms of the consumer's transaction from the 
settlement agent regarding the amounts disclosed under Sec.  1026.38(j) 
and (k). The creditor has exercised due diligence in obtaining the 
information about the costs under Sec.  1026.38(j) and (k) for purposes 
of the ``reasonably available'' standard in connection with such 
disclosures under Sec.  1026.38(j) and (k).
    ii. Estimates. If an actual term is unknown, the creditor may 
utilize estimates using the best information reasonably available in 
making disclosures even though the creditor knows that more precise 
information will be available at or before consummation. However, the 
creditor may not utilize an estimate without exercising due diligence 
to obtain the actual term for the consumer's transaction. See comment 
19(f)(1)(i)-2.i. The creditor is required to provide corrected 
disclosures containing the actual terms of the transaction at or before 
consummation under Sec.  1026.19(f)(2), subject to the exceptions 
provided for in that paragraph. Disclosures under Sec.  1026.19(f) are 
subject to the labeling rules set forth in Sec.  1026.38. See comment 
17(c)(2)(i)-2 for guidance on labeling estimates.
    iii. Settlement agent. If a settlement agent provides disclosures 
required by Sec.  1026.19(f)(1)(i) three business days before 
consummation pursuant to Sec.  1026.19(f)(1)(v), the ``best information 
reasonably available'' standard applies to terms for which the actual 
term is unknown to the settlement agent at the time the disclosures are 
provided. The settlement agent normally may rely on the representations 
of other parties in obtaining information, but if information about 
actual terms is not reasonably available, the settlement agent also 
must satisfy the ``best information reasonably available'' standard. 
Accordingly, the settlement agent is required to exercise due diligence 
to obtain information if it is providing the Closing Disclosure 
pursuant to Sec.  1026.19(f)(1)(v). For example, for the loan terms 
table required to be disclosed under Sec.  1026.38(b), the settlement 
agent would be considered to have exercised due diligence if it 
obtained such information from the creditor. Because the creditor 
remains responsible under Sec.  1026.19(f)(1)(v) for ensuring that the 
Closing Disclosure is provided in accordance with Sec.  1026.19(f), the 
creditor is expected to maintain communication with the settlement 
agent to ensure that the settlement agent is acting in place of the 
creditor. See comment 19(f)(1)(v)-3 for guidance on a creditor's 
responsibilities where a settlement agent provides disclosures.
    3. Denied or withdrawn applications. The creditor is not required 
to provide the disclosures required under Sec.  1026.19(f)(1)(i) if, 
before the time the creditor is required to provide the disclosures 
under Sec.  1026.19(f), the

[[Page 80323]]

creditor determines the consumer's application will not or cannot be 
approved on the terms requested, or the consumer has withdrawn the 
application, and, as such, the transaction will not be consummated. For 
transactions covered by Sec.  1026.19(f)(1)(i), the creditor may rely 
on comment 19(e)(1)(iii)-3 in determining that disclosures are not 
required by Sec.  1026.19(f)(1)(i) because the consumer's application 
will not or cannot be approved on the terms requested or the consumer 
has withdrawn the application.
    19(f)(1)(ii) Timing.
    1. Timing. Except as provided in Sec.  1026.19(f)(1)(ii)(B), 
(f)(2)(i), (f)(2)(iii), (f)(2)(iv), and (f)(2)(v), the disclosures 
required by Sec.  1026.19(f)(1)(i) must be received by the consumer no 
later than three business days before consummation. For example, if 
consummation is scheduled for Thursday, the creditor satisfies this 
requirement by hand delivering the disclosures on Monday, assuming each 
weekday is a business day. For purposes of Sec.  1026.19(f)(1)(ii), the 
term ``business day'' means all calendar days except Sundays and legal 
public holidays referred to in Sec.  1026.2(a)(6). See comment 2(a)(6)-
2.
    2. Receipt of disclosures three business days before consummation. 
Section 1026.19(f)(1)(ii)(A) provides that the consumer must receive 
the disclosures no later than three business days before consummation. 
To comply with this requirement, the creditor must arrange for delivery 
accordingly. Section 1026.19(f)(1)(iii) provides that, if any 
disclosures required under Sec.  1026.19(f)(1)(i) are not provided to 
the consumer in person, the consumer is considered to have received the 
disclosures three business days after they are delivered or placed in 
the mail. Thus, for example, if consummation is scheduled for Thursday, 
a creditor would satisfy the requirements of Sec.  1026.19(f)(1)(ii)(A) 
if the creditor places the disclosures in the mail on Thursday of the 
previous week, because, for the purposes of Sec.  1026.19(f)(1)(ii), 
Saturday is a business day, pursuant to Sec.  1026.2(a)(6), and, 
pursuant to Sec.  1026.19(f)(1)(iii), the consumer would be considered 
to have received the disclosures on the Monday before consummation is 
scheduled. See comment 19(f)(1)(iii)-1. A creditor would not satisfy 
the requirements of Sec.  1026.19(f)(1)(ii)(A) in this example if the 
creditor places the disclosures in the mail on the Monday before 
consummation. However, the creditor in this example could satisfy the 
requirements of Sec.  1026.19(f)(1)(ii)(A) by delivering the 
disclosures on Monday, for instance, by way of electronic mail, 
provided the requirements of Sec.  1026.38(t)(3)(iii) relating to 
disclosures in electronic form are satisfied and assuming that each 
weekday is a business day, and provided that the creditor obtains 
evidence that the consumer received the emailed disclosures on Monday. 
See comment 19(f)(1)(iii)-2.
    3. Timeshares. For transactions secured by a consumer's interest in 
a timeshare plan described in 11 U.S.C. 101(53D), Sec.  
1026.19(f)(1)(ii)(B) requires a creditor to ensure that the consumer 
receives the disclosures required under Sec.  1026.19(f)(1)(i) no later 
than consummation. Timeshare transactions covered by Sec.  
1026.19(f)(1)(ii)(B) may be consummated at the time or any time after 
the disclosures required by Sec.  1026.19(f)(1)(i) are received by the 
consumer. For example, if a consumer provides the creditor with an 
application, as defined by Sec.  1026.2(a)(3), for a mortgage loan 
secured by a timeshare on Monday, June 1, and consummation of the 
timeshare transaction is scheduled for Friday, June 5, the creditor 
complies with Sec.  1026.19(f)(1)(ii)(B) by ensuring that the consumer 
receives the disclosures required by Sec.  1026.19(f)(1)(i) no later 
than consummation on Friday, June 5. If a consumer provides the 
creditor with an application for a mortgage loan secured by a timeshare 
on Monday, June 1 and consummation of the timeshare transaction is 
scheduled for Tuesday, June 2, then the creditor complies with Sec.  
1026.19(f)(1)(ii)(B) by ensuring that the consumer receives the 
disclosures required by Sec.  1026.19(f)(1)(i) no later than 
consummation on Tuesday, June 2. In some cases, a Loan Estimate must be 
provided under Sec.  1026.19(e) before provision of the Closing 
Disclosure. See comment 19(e)(1)(iii)-4 for guidance on providing the 
Loan Estimate for transactions secured by a consumer's interest in a 
timeshare plan.
    19(f)(1)(iii) Receipt of disclosures.
    1. Mail delivery. Section 1026.19(f)(1)(iii) provides that, if any 
disclosures required under Sec.  1026.19(f)(1)(i) are not provided to 
the consumer in person, the consumer is considered to have received the 
disclosures three business days after they are delivered or placed in 
the mail. If the creditor delivers the disclosures required under Sec.  
1026.19(f)(1)(i) in person, consummation may occur any time on the 
third business day following delivery. If the creditor provides the 
disclosures by mail, the consumer is considered to have received them 
three business days after they are placed in the mail, for purposes of 
determining when the three-business-day waiting period required under 
Sec.  1026.19(f)(1)(ii)(A) begins. The creditor may, alternatively, 
rely on evidence that the consumer received the disclosures earlier 
than three business days after mailing. See comment 19(e)(1)(iv)-1 for 
an example in which the creditor sends disclosures via overnight mail.
    2. Other forms of delivery. Creditors that use electronic mail or a 
courier other than the United States Postal Service also may follow the 
approach for disclosures provided by mail described in comment 
19(f)(1)(iii)-1. For example, if a creditor sends a disclosure required 
under Sec.  1026.19(f) via email on Monday, pursuant to Sec.  
1026.19(f)(1)(iii) the consumer is considered to have received the 
disclosure on Thursday, three business days later. The creditor may, 
alternatively, rely on evidence that the consumer received the emailed 
disclosures earlier after delivery. See comment 19(e)(1)(iv)-2 for an 
example in which the creditor emails disclosures and receives an 
acknowledgment from the consumer on the same day. Creditors using 
electronic delivery methods, such as email, must also comply with Sec.  
1026.38(t)(3)(iii). For example, if a creditor delivers the disclosures 
required by Sec.  1026.19(f)(1)(i) to a consumer via email, but the 
creditor did not obtain the consumer's consent to receive disclosures 
via email prior to delivering the disclosures, then the creditor does 
not comply with Sec.  1026.38(t)(3)(iii), and the creditor does not 
comply with Sec.  1026.19(f)(1)(i), assuming the disclosures were not 
provided in a different manner in accordance with the timing 
requirements of Sec.  1026.19(f)(1)(ii).
    19(f)(1)(iv) Consumer's waiver of waiting period before 
consummation.
    1. Modification or waiver. A consumer may modify or waive the right 
to the three-business-day waiting periods required by Sec.  
1026.19(f)(1)(ii)(A) or (f)(2)(ii) only after the creditor makes the 
disclosures required by Sec.  1026.19(f)(1)(i). The consumer must have 
a bona fide personal financial emergency that necessitates consummating 
the credit transaction before the end of the waiting period. Whether 
these conditions are met is determined by the facts surrounding 
individual situations. The imminent sale of the consumer's home at 
foreclosure, where the foreclosure sale will proceed unless loan 
proceeds are made available to the consumer during the waiting period, 
is one example of a bona fide personal financial emergency.

[[Page 80324]]

Each consumer who is primarily liable on the legal obligation must sign 
the written statement for the waiver to be effective.
    19(f)(1)(v) Settlement agent.
    1. Requirements. For purposes of Sec.  1026.19(f), a settlement 
agent is the person conducting the settlement. A settlement agent may 
provide the disclosures required under Sec.  1026.19(f)(1)(i) instead 
of the creditor. By assuming this responsibility, the settlement agent 
becomes responsible for complying with all of the relevant requirements 
of Sec.  1026.19(f), meaning that ``settlement agent'' should be read 
in the place of ``creditor'' for all the relevant provisions of Sec.  
1026.19(f), except where such a reading would create responsibility for 
settlement agents under Sec.  1026.19(e). For example, comment 
19(f)(1)(ii)-3 explains that, in some cases involving transactions 
secured by a consumer's interest in a timeshare plan, a Loan Estimate 
must be provided under Sec.  1026.19(e). ``Settlement agent'' could not 
be read in place of ``creditor'' in comment 19(f)(1)(ii)-3 because 
settlement agents are not responsible for the disclosures required by 
Sec.  1026.19(e)(1)(i). To ensure timely and accurate compliance with 
the requirements of Sec.  1026.19(f)(1)(v), the creditor and settlement 
agent need to communicate effectively.
    2. Settlement agent responsibilities. If a settlement agent 
provides any disclosure under Sec.  1026.19(f), the settlement agent 
must comply with the relevant requirements of Sec.  1026.19(f). For 
example, if the creditor and settlement agent agree that the creditor 
will deliver the disclosures required under Sec.  1026.19(f)(1)(i) to 
be received by the consumer three business days before consummation, 
pursuant to Sec.  1026.19(f)(1)(ii)(A), and that the settlement agent 
will deliver any corrected disclosures at or before consummation, 
including disclosures provided so that they are received by the 
consumer three business days before consummation under Sec.  
1026.19(f)(2)(ii), and will permit the consumer to inspect the 
disclosures during the business day before consummation, the settlement 
agent must ensure that the consumer receives the disclosures required 
under Sec.  1026.19(f)(1)(i) at or before consummation and is able to 
inspect the disclosures during the business day before consummation, if 
the consumer so requests, in accordance with Sec.  1026.19(f)(2)(i). 
See comment 19(f)(1)(v)-3 below for additional guidance regarding the 
creditor's responsibilities where the settlement agent provides 
disclosures. The settlement agent may assume the responsibility to 
provide some or all of the disclosures required by Sec.  1026.19(f). 
See comment 19(f)(1)(v)-4 for guidance on how creditors and settlement 
agents may divide responsibilities for completing the disclosures.
    3. Creditor responsibilities. If a settlement agent provides 
disclosures required under Sec.  1026.19(f) in the creditor's place, 
the creditor remains responsible under Sec.  1026.19(f) for ensuring 
that the requirements of Sec.  1026.19(f) have been satisfied. For 
example, if the settlement agent assumes the responsibility for 
providing all of the disclosures required under Sec.  1026.19(f)(1)(i), 
the creditor does not comply with Sec.  1026.19(f) if the settlement 
agent does not provide these disclosures at all, or if the consumer 
receives the disclosures later than three business days before 
consummation, as required by Sec.  1026.19(f)(1)(ii)(A) and, as 
applicable, (f)(2)(ii). The creditor does not satisfy the requirements 
of Sec.  1026.19(f) if it provides duplicative disclosures. For 
example, a creditor does not satisfy its obligation by issuing 
disclosures required under Sec.  1026.19(f) that mirror ones already 
issued by the settlement agent for the purpose of demonstrating that 
the consumer received timely disclosures. The creditor is expected to 
maintain communication with the settlement agent to ensure that the 
settlement agent is acting in place of the creditor. Disclosures 
provided by a settlement agent in accordance with Sec.  
1026.19(f)(1)(v) satisfy the creditor's obligation under Sec.  
1026.19(f)(1)(i).
    4. Shared responsibilities permitted--completing the disclosures. 
Creditors and settlement agents may agree to divide responsibility with 
respect to completing any of the disclosures under Sec.  1026.38 for 
the disclosures provided under Sec.  1026.19(f)(1)(i). The settlement 
agent may assume the responsibility to complete some or all of the 
disclosures required by Sec.  1026.19(f). For example, the creditor 
complies with the requirements of Sec.  1026.19(f)(1)(i) and the 
settlement agent complies with the requirements of Sec.  
1026.19(f)(1)(v) if the settlement agent agrees to complete only the 
portion of the disclosures required by Sec.  1026.19(f)(1)(i) related 
to closing costs for taxes, title fees, and insurance premiums, and the 
creditor agrees to complete the remainder of the disclosures required 
by Sec.  1026.19(f)(1)(i), and either the settlement agent or the 
creditor provides the consumer with one single disclosure form 
containing all of the information required to be disclosed pursuant to 
Sec.  1026.19(f)(1)(i), in accordance with the other requirements in 
Sec.  1026.19(f), such as requirements related to timing and delivery.
    19(f)(2) Subsequent changes.
    19(f)(2)(i) Changes before consummation not requiring a new waiting 
period.
    1. Requirements. Under Sec.  1026.19(f)(2)(i), if the disclosures 
provided under Sec.  1026.19(f)(1)(i) become inaccurate before 
consummation, other than as provided under Sec.  1026.19(f)(2)(ii), the 
creditor shall provide corrected disclosures reflecting any changed 
terms to the consumer so that the consumer receives the corrected 
disclosures at or before consummation. The creditor need not comply 
with the timing requirements in Sec.  1026.19(f)(1)(ii) if an event 
other than one identified in Sec.  1026.19(f)(2)(ii) occurs, and such 
changes occur after the creditor provides the consumer with the 
disclosures required by Sec.  1026.19(f)(1)(i). For example:
    i. Assume consummation is scheduled for Thursday, the consumer 
received the disclosures required under Sec.  1026.19(f)(1)(i) on 
Monday, and a walk-through inspection occurs on Wednesday morning. 
During the walk-through the consumer discovers damage to the 
dishwasher. The seller agrees to credit the consumer $500 towards a new 
dishwasher. The creditor complies with the requirements of Sec.  
1026.19(f) if the creditor provides corrected disclosures so that the 
consumer receives them at or before consummation on Thursday.
    ii. Assume consummation is scheduled for Friday and on Monday 
morning the creditor sends the disclosures via overnight delivery to 
the consumer, ensuring that the consumer receives the disclosures on 
Tuesday. On Monday night, the seller agrees to sell certain household 
furnishings to the consumer for an additional $1,000, to be paid at the 
real estate closing, and the consumer immediately informs the creditor 
of the change. The creditor must provide corrected disclosures so that 
the consumer receives them at or before consummation. The creditor does 
not violate Sec.  1026.19(f) because the change to the transaction 
resulting from negotiations between the seller and consumer occurred 
after the creditor provided the final disclosures, regardless of the 
fact that the change occurred before the consumer had received the 
final disclosures.
    iii. Assume consummation is scheduled for Thursday, the consumer 
received the disclosures required under Sec.  1026.19(f)(1)(i) on 
Monday, and a walk-through inspection occurs on Wednesday morning. As a 
result of consumer and seller negotiations, the total amount due from 
the buyer

[[Page 80325]]

increases by $500. Also on Wednesday, the creditor discovers that the 
homeowner's insurance premium that was disclosed as $800 is actually 
$850. The new $500 amount due and the $50 insurance premium 
understatements are not violations of Sec.  1026.19(f)(1)(i), and the 
creditor complies with Sec.  1026.19(f)(1)(i) by providing corrected 
disclosures reflecting the $550 increase so that the consumer receives 
them at or before consummation, pursuant to Sec.  1026.19(f)(2)(ii).
    2. Inspection. A settlement agent may satisfy the requirement to 
permit the consumer to inspect the disclosures under Sec.  
1026.19(f)(2)(i), subject to Sec.  1026.19(f)(1)(v).
    19(f)(2)(ii) Changes before consummation requiring a new waiting 
period.
    1. Conditions for corrected disclosures. Pursuant to Sec.  
1026.19(f)(2)(ii), if, at the time of consummation, the annual 
percentage rate becomes inaccurate, the loan product changes, or a 
prepayment penalty is added to the transaction, the creditor must 
provide corrected disclosures with all changed terms so that the 
consumer receives them not later than the third business day before 
consummation. Requirements for annual percentage rate disclosures are 
set forth in Sec.  1026.38(o)(4), and requirements determining whether 
an annual percentage rate is accurate are set forth in Sec.  1026.22. 
Requirements for loan product disclosures are set forth in Sec.  
1026.38(a)(5)(iii) and Sec.  1026.37(a)(10). Requirements for 
prepayment penalty disclosures are set forth in Sec.  1026.38(b) and 
Sec.  1026.37(b)(4).
    i. Example--APR becomes inaccurate. Assume consummation is 
scheduled for Thursday, June 11 and the disclosure for a regular 
mortgage transaction received by the consumer on Monday, June 8 under 
Sec.  1026.19(f)(1)(i) discloses an annual percentage rate of 7.00 
percent:
    A. On Thursday, June 11, the annual percentage rate will be 7.10 
percent. The creditor is not required to delay consummation to provide 
corrected disclosures under Sec.  1026.19(f)(2)(ii) because the annual 
percentage rate is accurate pursuant to Sec.  1026.22, but the creditor 
is required under Sec.  1026.19(f)(2)(i) to provide corrected 
disclosures, including any other changed terms, so that the consumer 
receives them on or before Thursday, June 11.
    B. On Thursday, June 11, the annual percentage rate will be 7.15 
percent and corrected disclosures were not received by the consumer on 
or before Monday, June 8 because the annual percentage rate is 
inaccurate pursuant to Sec.  1026.22. The creditor is required to delay 
consummation and provide corrected disclosures, including any other 
changed terms, so that the consumer receives them at least three 
business days before consummation under Sec.  1026.19(f)(2)(ii).
    ii. Example--loan product changes. Assume consummation is scheduled 
for Thursday, June 11 and the disclosures provided under Sec.  
1026.19(f)(1)(i) disclose a product required to be disclosed as a 
``Fixed Rate'' that contains no features that may change the periodic 
payment.
    A. On Thursday, June 11, the loan product required to be disclosed 
changes to a ``5/1 Adjustable Rate.'' The creditor is required to 
provide corrected disclosures and delay consummation until the consumer 
has received the corrected disclosures provided under Sec.  
1026.19(f)(1)(i) reflecting the change in the product disclosure, and 
any other changed terms, at least three business days before 
consummation. If, after the corrected disclosures in this example are 
provided, the loan product subsequently changes before consummation to 
a ``3/1 Adjustable Rate,'' the creditor is required to provide 
additional corrected disclosures and again delay consummation until the 
consumer has received the corrected disclosures provided under Sec.  
1026.19(f)(1)(i) reflecting the change in the product disclosure, and 
any other changed terms, at least three business days before 
consummation.
    B. On Thursday, June 11, the loan product required to be disclosed 
has changed to a ``Fixed Rate'' with a ``Negative Amortization'' 
feature. The creditor is required to provide corrected disclosures and 
delay consummation until the consumer has received the corrected 
disclosures provided under Sec.  1026.19(f)(1)(i) reflecting the change 
in the product disclosure, and any other changed terms, at least three 
business days before consummation.
    iii. Example--prepayment penalty is added. Assume consummation is 
scheduled for Thursday, June 11 and the disclosure provided under Sec.  
1026.19(f)(1)(i) did not disclose a prepayment penalty. On Wednesday, 
June 10, a prepayment penalty is added to the transaction such that the 
disclosure required by Sec.  1026.38(b) becomes inaccurate. The 
creditor is required to provide corrected disclosures and delay 
consummation until the consumer has received the corrected disclosures 
provided under Sec.  1026.19(f)(1)(i) reflecting the change in the 
disclosure of the loan terms, and any other changed terms, at least 
three business days before consummation. If, after the revised 
disclosures in this example are provided but before consummation, the 
prepayment penalty is removed such that the description of the 
prepayment penalty again becomes inaccurate, and no other changes to 
the transaction occur, the creditor is required to provide corrected 
disclosures so that the consumer receives them at or before 
consummation under Sec.  1026.19(f)(2)(i), but the creditor is not 
required to delay consummation because Sec.  1026.19(f)(2)(ii)(C) 
applies only when a prepayment penalty is added.
    19(f)(2)(iii) Changes due to events occurring after consummation.
    1. Requirements. Under Sec.  1026.19(f)(2)(iii), if during the 30-
day period following consummation, an event in connection with the 
settlement of the transaction occurs that causes the disclosures to 
become inaccurate, and such inaccuracy results in a change to an amount 
actually paid by the consumer from that amount disclosed under Sec.  
1026.19(f)(1)(i), the creditor shall deliver or place in the mail 
corrected disclosures not later than 30 days after receiving 
information sufficient to establish that such event has occurred. The 
following examples illustrate this requirement. (See also comment 
19(e)(4)(i)-1 for further guidance on when sufficient information has 
been received to establish an event has occurred.)
    i. Assume consummation occurs on a Monday and the security 
instrument is recorded on Tuesday, the day after consummation. If the 
creditor learns on Tuesday that the fee charged by the recorder's 
office differs from that previously disclosed pursuant to Sec.  
1026.19(f)(1)(i), and the changed fee results in a change in the amount 
actually paid by the consumer, the creditor complies with Sec.  
1026.19(f)(1)(i) and (f)(2)(iii) by revising the disclosures 
accordingly and delivering or placing them in the mail no later than 30 
days after Tuesday.
    ii. Assume consummation occurs on a Tuesday, October 1 and the 
security instrument is not recorded until 15 days after October 1 on 
Thursday, October 16. The creditor learns on Monday, November 4 that 
the transfer taxes owed to the State differ from those previously 
disclosed pursuant to Sec.  1026.19(f)(1)(i), resulting in an increase 
in the amount actually paid by the consumer. The creditor complies with 
Sec.  1026.19(f)(1)(i) and Sec.  1026.19(f)(2)(iii) by revising the 
disclosures accordingly and delivering or placing them in the mail no 
later than 30 days after Monday, November 4. Assume further that the 
increase in transfer taxes paid by the consumer also

[[Page 80326]]

exceeds the amount originally disclosed under Sec.  1026.19(e)(1)(i) 
above the limitations prescribed by Sec.  1026.19(e)(3)(i). Pursuant to 
Sec.  1026.19(f)(2)(v), the creditor does not violate Sec.  
1026.19(e)(1)(i) if the creditor refunds the excess to the consumer no 
later than 60 days after consummation, and the creditor does not 
violate Sec.  1026.19(f)(1)(i) if the creditor delivers disclosures 
corrected to reflect the refund of such excess no later than 60 days 
after consummation. The creditor satisfies these requirements under 
Sec.  1026.19(f)(2)(v) if it revises the disclosures accordingly and 
delivers or places them in the mail by November 30.
    iii. Assume consummation occurs on a Monday and the security 
instrument is recorded on Tuesday, the day after consummation. During 
the recording process on Tuesday the settlement agent and the creditor 
discover that the property is subject to an unpaid $500 nuisance 
abatement assessment, which was not disclosed pursuant to Sec.  
1026.19(f)(1)(i), and learns that pursuant to an agreement with the 
seller, the $500 assessment will be paid by the seller rather than the 
consumer. Because the $500 assessment does not result in a change to an 
amount actually paid by the consumer, the creditor is not required to 
provide a corrected disclosure pursuant to Sec.  1026.19(f)(2)(iii). 
However, the assessment will result in a change to an amount actually 
paid by the seller from the amount disclosed under Sec.  
1026.19(f)(4)(i). Pursuant to Sec.  1026.19(f)(4)(ii), the settlement 
agent must deliver or place in the mail corrected disclosures to the 
seller no later than 30 days after Tuesday and provide a copy to the 
creditor pursuant to Sec.  1026.19(f)(4)(iv).
    iv. Assume consummation occurs on a Monday and the security 
instrument is recorded on Tuesday, the day after consummation. Assume 
further that ten days after consummation the municipality in which the 
property is located raises property tax rates effective after the date 
on which settlement concludes. Section 1026.19(f)(2)(iii) does not 
require the creditor to provide the consumer with corrected disclosures 
because the increase in property tax rates is not in connection with 
the settlement of the transaction.
    19(f)(2)(iv) Changes due to clerical errors.
    1. Requirements. Section 1026.19(f)(2)(iv) requires the creditor to 
deliver or place in the mail corrected disclosures if the disclosures 
provided pursuant to Sec.  1026.19(f)(1)(i) contain non-numeric 
clerical errors. An error is considered clerical if it does not affect 
a numerical disclosure and does not affect requirements imposed by 
Sec.  1026.19(e) or (f). For example, if the disclosure identifies the 
incorrect settlement service provider as the recipient of a payment, 
then Sec.  1026.19(f)(2)(iv) requires the creditor to deliver or place 
in the mail corrected disclosures reflecting the corrected non-numeric 
disclosure no later than 60 days after consummation. However, if, for 
example, the disclosure lists the wrong property address, which affects 
the delivery requirement imposed by Sec.  1026.19(e) or (f), the error 
would not be considered clerical.
    19(f)(2)(v) Refunds related to the good faith analysis.
    1. Requirements. Section 1026.19(f)(2)(v) provides that, if amounts 
paid at closing exceed the amounts specified under Sec.  
1026.19(e)(3)(i) or (ii), the creditor does not violate Sec.  
1026.19(e)(1)(i) if the creditor refunds the excess to the consumer no 
later than 60 days after consummation, and the creditor does not 
violate Sec.  1026.19(f)(1)(i) if the creditor delivers or places in 
the mail disclosures corrected to reflect the refund of such excess no 
later than 60 days after consummation. For example, assume that at 
consummation the consumer must pay four itemized charges that are 
subject to the good faith determination under Sec.  1026.19(e)(3)(i). 
If the actual amounts paid by the consumer for the four itemized 
charges subject to Sec.  1026.19(e)(3)(i) exceeded their respective 
estimates on the disclosures required under Sec.  1026.19(e)(1)(i) by 
$30, $25, $25, and $10, then there would be a $90 excess amount above 
the limitations prescribed by Sec.  1026.19(e)(3)(i). If, further, the 
amounts paid by the consumer for services that are subject to the good 
faith determination under Sec.  1026.19(e)(3)(ii) totaled $1,190, but 
the respective estimates on the disclosures required under Sec.  
1026.19(e)(1)(i) totaled only $1,000, then there would be a $90 excess 
amount above the limitations prescribed by Sec.  1026.19(e)(3)(ii). The 
creditor does not violate Sec.  1026.19(e)(1)(i) if the creditor 
refunds the excess to the consumer no later than 60 days after 
consummation. The creditor does not violate Sec.  1026.19(f)(1)(i) if 
the creditor delivers or places in the mail corrected disclosures 
reflecting the $180 refund of the excess amount collected no later than 
60 days after consummation. See comment 38(h)(3)-2 for additional 
guidance on disclosing refunds such as these.
    19(f)(3) Charges disclosed.
    19(f)(3)(i) Actual charge.
    1. Requirements. Section 1026.19(f)(3)(i) provides the general rule 
that the amount imposed on the consumer for any settlement service 
shall not exceed the amount actually received by the settlement service 
provider for that service. Except as otherwise provided in Sec.  
1026.19(f)(3)(ii), a creditor violates Sec.  1026.19(f)(3)(i) if the 
amount imposed upon the consumer exceeds the amount actually received 
by the service provider for that service.
    19(f)(3)(ii) Average charge.
    1. Requirements. Average-charge pricing is the exception to the 
rule in Sec.  1026.19(f)(3)(i) that consumers shall not pay more than 
the exact amount charged by a settlement service provider for the 
performance of that service. See comment 19(f)(3)(i)-1. If the creditor 
develops representative samples of specific settlement costs for a 
particular class of transactions, the creditor may charge the average 
cost for that settlement service instead of the actual cost for such 
transactions. An average-charge program may not be used in a way that 
inflates the cost for settlement services overall.
    2. Defining the class of transactions. Section 1026.19(f)(3)(ii)(B) 
requires a creditor to use an appropriate period of time, appropriate 
geographic area, and appropriate type of loan to define a particular 
class of transactions. For purposes of Sec.  1026.19(f)(3)(ii)(B), a 
period of time is appropriate if the sample size is sufficient to 
calculate average costs with reasonable precision, provided that the 
period of time is not less than 30 days and not more than six months. 
For purposes of Sec.  1026.19(f)(3)(ii)(B), a geographic area and loan 
type are appropriate if the sample size is sufficient to calculate 
average costs with reasonable precision, provided that the area and 
loan type are not defined in a way that pools costs between dissimilar 
populations. For example:
    i. Assume a creditor defines a geographic area that contains two 
subdivisions, one with a median appraisal cost of $200, and the other 
with a median appraisal cost of $1,000. This geographic area would not 
satisfy the requirements of Sec.  1026.19(f)(3)(ii) because the cost 
characteristics of the two populations are dissimilar. However, a 
geographic area would be appropriately defined if both subdivisions had 
a relatively normal distribution of appraisal costs, even if the 
distribution for each subdivision ranges from below $200 to above 
$1,000.
    ii. Assume a creditor defines a type of loan that includes two 
distinct rate

[[Page 80327]]

products. The median recording fee for one product is $80, while the 
median recording fee for the other product is $130. This definition of 
loan type would not satisfy the requirements of Sec.  1026.19(f)(3)(ii) 
because the cost characteristics of the two products are dissimilar. 
However, a type of loan would be appropriately defined if both products 
had a relatively normal distribution of recording fees, even if the 
distribution for each product ranges from below $80 to above $130.
    3. Uniform use. If a creditor chooses to use an average charge for 
a settlement service for a particular loan within a class, Sec.  
1026.19(f)(3)(ii)(C) requires the creditor to use that average charge 
for that service on all loans within the class. For example:
    i. Assume a creditor elects to use an average charge for appraisal 
fees. The creditor defines a class of transactions as all fixed rate 
loans originated between January 1 and April 30 secured by real 
property located within a particular metropolitan statistical area. The 
creditor must then charge the average appraisal charge to all consumers 
obtaining fixed rate loans originated between May 1 and August 30 
secured by real property located within the same metropolitan 
statistical area.
    ii. The example in paragraph i of this comment assumes that a 
consumer would not be required to pay the average appraisal charge 
unless an appraisal was required on that particular loan. Using the 
example above, if a consumer applies for a loan within the defined 
class, but already has an appraisal report acceptable to the creditor 
from a prior loan application, the creditor may not charge the consumer 
the average appraisal fee because an acceptable appraisal report has 
already been obtained for the consumer's application. Similarly, 
although the creditor defined the class broadly to include all fixed 
rate loans, the creditor may not require the consumer to pay the 
average appraisal charge if the particular fixed rate loan program the 
consumer applied for does not require an appraisal.
    4. Average amount paid. The average charge must correspond to the 
average amount paid by or imposed on consumers and sellers during the 
prior defined time period. For example, assume a creditor calculates an 
average tax certification fee based on four-month periods starting 
January 1 of each year. The tax certification fees charged to a 
consumer on May 20 may not exceed the average tax certification fee 
paid from January 1 through April 30. A creditor may delay the period 
by a reasonable amount of time if such delay is needed to perform the 
necessary analysis and update the affected systems, provided that each 
subsequent period is scheduled accordingly. For example, a creditor may 
define a four-month period from January 1 to April 30 and begin using 
the average charge from that period on May 15, provided the average 
charge is used until September 15, at which time the average charge for 
the period from May 1 to August 31 becomes effective.
    5. Adjustments based on retrospective analysis required. Creditors 
using average charges must ensure that the total amount paid by or 
imposed on consumers for a service does not exceed the total amount 
paid to the providers of that service for the particular class of 
transactions. A creditor may find that, even though it developed an 
average-cost pricing program in accordance with the requirements of 
Sec.  1026.19(f)(3)(ii), over time it has collected more from consumers 
than it has paid to settlement service providers. For example, assume a 
creditor defines a class of transactions and uses that class to develop 
an average charge of $135 for pest inspections. The creditor then 
charges $135 per transaction for 100 transactions from January 1 
through April 30, but the actual average cost to the creditor of pest 
inspections during this period is $115. The creditor then decreases the 
average charge for the May to August period to account for the lower 
average cost during the January to April period. At this point, the 
creditor has collected $2,000 more than it has paid to settlement 
service providers for pest inspections. The creditor then charges $115 
per transaction for 70 transactions from May 1 to August 30, but the 
actual average cost to the creditor of pest inspections during this 
period is $125. Based on the average cost to the creditor from the May 
to August period, the average charge to the consumer for the September 
to December period should be $125. However, while the creditor spent 
$700 more than it collected during the May to August period, it 
collected $1,300 more than it spent from January to August. In cases 
such as these, the creditor remains responsible for ensuring that the 
amount collected from consumers does not exceed the total amounts paid 
for the corresponding settlement services over time. The creditor may 
develop a variety of methods that achieve this outcome. For example, 
the creditor may choose to refund the proportional overage paid to the 
affected consumers. Or the creditor may choose to factor in the excess 
amount collected to decrease the average charge for an upcoming period. 
Although any method may comply with this requirement, a creditor is 
deemed to have complied if it defines a six-month time period and 
establishes a rolling monthly period of reevaluation. For example, 
assume a creditor defines a six-month time period from January 1 to 
June 30 and the creditor uses the average charge starting July 1. If, 
at the end of July, the creditor recalculates the average cost from 
February 1 to July 31, and then uses the recalculated average cost for 
transactions starting August 1, the creditor complies with the 
requirements of Sec.  1026.19(f)(3)(ii), even if the creditor actually 
collected more from consumers than was paid to providers over time.
    6. Adjustments based on prospective analysis permitted, but not 
required. A creditor may prospectively adjust average charges if it 
develops a statistically reliable and accurate method for doing so. For 
example, assume a creditor calculates average charges based on two time 
periods: winter (October 1 to March 31), and summer (April 1 to 
September 30). If the creditor can demonstrate that the average cost of 
a particular settlement service is always at least 15 percent more 
expensive during the winter period than the summer period, the creditor 
may increase the average charge for the next winter period by 15 
percent over the average cost for the current summer period, provided, 
however, that the creditor performs retrospective periodic adjustments, 
as explained in comment 19(f)(3)(ii)-5.
    7. Charges that vary with loan amount or property value. An average 
charge may not be used for any charge that varies according to the loan 
amount or property value. For example, an average charge may not be 
used for a transfer tax if the transfer tax is calculated as a 
percentage of the loan amount or property value. Average charges also 
may not be used for any insurance premium. For example, average charges 
may not be used for title insurance or for either the upfront premium 
or initial escrow deposit for hazard insurance.
    8. Prohibited by law. An average charge may not be used where 
prohibited by any applicable State or local law. For example, a 
creditor may not impose an average charge for an appraisal if 
applicable law prohibits creditors from collecting any amount in excess 
of the actual cost of the appraisal.
    9. Documentation required. To comply with Sec.  1026.25, a creditor 
must retain all documentation used to calculate the average charge for 
a particular class of transactions for at

[[Page 80328]]

least three years after any settlement for which that average charge 
was used. The documentation must support the components and methods of 
calculation. For example, if a creditor calculates an average charge 
for a particular county recording fee by simply averaging all of the 
relevant fees paid in the prior month, the creditor need only retain 
the receipts for the individual recording fees, a ledger demonstrating 
that the total amount received did not exceed the total amount paid 
over time, and a document detailing the calculation. However, if a 
creditor develops complex algorithms for determining averages, not only 
must the creditor maintain the underlying receipts and ledgers, but the 
creditor must maintain documentation sufficiently detailed to allow an 
examiner to verify the accuracy of the calculations.
    19(f)(4) Transactions involving a seller.
    19(f)(4)(i) Provision to seller.
    1. Requirement. Section 1026.19(f)(4)(i) provides that, in a 
closed-end consumer credit transaction secured by real property that 
involves a seller, other than a reverse mortgage subject to Sec.  
1026.33, the settlement agent shall provide the seller with the 
disclosures in Sec.  1026.38 that relate to the seller's transaction 
reflecting the actual terms of the seller's transaction. The settlement 
agent complies with this provision by providing a copy of the Closing 
Disclosure provided to the consumer, if it also contains the 
information under Sec.  1026.38 relating to the seller's transaction, 
or alternatively providing the disclosures under Sec.  1026.38(t)(5)(v) 
or (vi), as applicable.
    19(f)(4)(ii) Timing.
    1. Requirement. Section 1026.19(f)(4)(ii) provides that the 
settlement agent shall provide the disclosures required under Sec.  
1026.19(f)(4)(i) no later than the day of consummation. If during the 
30-day period following consummation, an event in connection with the 
settlement of the transaction occurs that causes such disclosures to 
become inaccurate and such inaccuracy results in a change to the amount 
actually paid by the seller from that amount disclosed under Sec.  
1026.19(f)(4)(i), the settlement agent shall deliver or place in the 
mail corrected disclosures not later than 30 days after receiving 
information sufficient to establish that such event has occurred. 
Section 1026.19(f)(4)(i) requires disclosure of the items that relate 
to the seller's transaction. Thus, the settlement agent need only 
redisclose if an item related to the seller's transaction becomes 
inaccurate and such inaccuracy results in a change to the amount 
actually paid by the seller. For example, assume a transaction where 
the seller pays the transfer tax, the consummation occurs on Monday, 
and the security instrument is recorded on Tuesday, the day after 
consummation. If the settlement agent receives information on Tuesday 
sufficient to establish that transfer taxes owed to the State differ 
from those disclosed pursuant to Sec.  1026.19(f)(4)(i), the settlement 
agent complies with Sec.  1026.19(f)(4)(ii) by revising the disclosures 
accordingly and delivering or placing them in the mail not later than 
30 days after Tuesday. See comment 19(e)(4)(i)-1 for guidance on when 
sufficient information has been received to establish an event has 
occurred. See also comment 19(f)(2)(iii)-1.iii for another example in 
which corrected disclosures must be provided to the seller.
    19(g) Special information booklet at time of application.
    19(g)(1) Creditor to provide special information booklet.
    1. Revision of booklet. The Bureau may, from time to time, issue 
revised or alternative versions of the special information booklet that 
addresses transactions subject to Sec.  1026.19(g) by publishing a 
notice in the Federal Register. The Bureau also may choose to permit 
the forms or booklets of other Federal agencies to be used by 
creditors. In such an event, the availability of the booklet or 
alternate materials for these transactions will be set forth in a 
notice in the Federal Register. The current version of the booklet can 
be accessed on the Bureau's Web site, www.consumerfinance.gov/learnmore.
    2. Multiple applicants. When two or more persons apply together for 
a loan, the creditor complies with Sec.  1026.19(g) if the creditor 
provides a copy of the booklet to one of the persons applying.
    3. Consumer's application. Section 1026.19(g)(1)(i) requires that 
the creditor deliver or place in the mail the special information 
booklet not later than three business days after the consumer's 
application is received. ``Application'' is defined in Sec.  
1026.2(a)(3)(ii). The creditor need not provide the booklet under Sec.  
1026.19(g)(1)(i) when it denies an application or if the consumer 
withdraws the application before the end of the three-business-day 
period under Sec.  1026.19(e)(1)(iii)(A). See comment 19(e)(1)(iii)-3 
for additional guidance on denied or withdrawn applications.
    19(g)(2) Permissible changes.
    1. Reproduction. The special information booklet may be reproduced 
in any form, provided that no changes are made, except as otherwise 
provided under Sec.  1026.19(g)(2). See also comment 19(g)(2)-3. 
Provision of the special information booklet as a part of a larger 
document does not satisfy the requirements of Sec.  1026.19(g). Any 
color, size and quality of paper, type of print, and method of 
reproduction may be used so long as the booklet is clearly legible.
    2. Other permissible changes. The special information booklet may 
be translated into languages other than English. Changes to the booklet 
other than those specified in Sec.  1026.19(g)(2)(i) through (iv) and 
comment 19(g)(2)-3 do not comply with Sec.  1026.19(g).
    3. Permissible changes to title of booklets in use before August 1, 
2015. Section 1026.19(g)(2)(iv) provides that the title appearing on 
the cover of the booklet shall not be changed. Comment 19(g)(1)-1 
states that the Bureau may, from time to time, issue revised or 
alternative versions of the special information booklet that address 
transactions subject to Sec.  1026.19(g) by publishing a notice in the 
Federal Register. Until the Bureau issues a version of the special 
information booklet relating to the Loan Estimate and Closing 
Disclosure under Sec. Sec.  1026.37 and 1026.38, for applications that 
are received on or after August 1, 2015, a creditor may change the 
title appearing on the cover of the version of the special information 
booklet in use before August 1, 2015, provided the words ``settlement 
costs'' are used in the title. See comment 1(d)(5)-1 for guidance 
regarding compliance with Sec.  1026.19(g) for applications received on 
or after August 1, 2015.

Section 1026.20--Disclosure Requirements Regarding Post-Consummation 
Events

* * * * *
    20(e) Escrow account cancellation notice for certain mortgage 
transactions.
    20(e)(1) Scope.
    1. Real property or dwelling. For purposes of Sec.  1026.20(e)(1), 
the term ``real property'' includes vacant and unimproved land. The 
term ``dwelling'' includes vacation and second homes and mobile homes, 
boats, and trailers used as residences. See Sec.  1026.2(a)(19) and 
related commentary for additional guidance regarding the term 
``dwelling.''
    2. Escrow account established in connection with the consumer's 
delinquency or default. Neither creditors nor servicers are required to 
provide the disclosures required by Sec.  1026.20(e)(2) when an escrow 
account that was established solely in connection with the consumer's 
delinquency or default on the

[[Page 80329]]

underlying debt obligation will be cancelled.
    3. Termination of the underlying debt obligation. Neither creditors 
nor servicers are required to provide disclosures required by Sec.  
1026.20(e)(2) when the underlying debt obligation for which an escrow 
account was established is terminated, including by repayment, 
refinancing, rescission, and foreclosure.
    20(e)(2) Content requirements.
    1. Clear and conspicuous standard. The clear and conspicuous 
standard generally requires that disclosures be in a reasonably 
understandable form and readily noticeable to the consumer.
    Paragraph 20(e)(2)(i).
    1. Escrow closing fee. Section 1026.20(e)(2)(i) requires the 
creditor to itemize the amount of any fee the creditor or servicer 
imposes on the consumer in connection with the closure of the 
consumer's escrow account, labeled ``Escrow Closing Fee.'' If the 
creditor or servicer independently decides to cancel the escrow 
account, rather than agreeing to close it at the request of the 
consumer, and does not charge a fee in connection with the 
cancellation, the creditor or service complies with Sec.  1026.20(e)(2) 
by leaving the disclosure blank on the front-side of the one-page 
document described in Sec.  1026.20(e)(4).
    20(e)(3) Optional information.
    1. Optional information permitted. Section 1026.20(e)(3) lists 
information that the creditor or servicer may, at its option, include 
on the notice required by Sec.  1026.20(e). To comply with Sec.  
1026.20(e)(3), the creditor or servicer may place the information 
required by Sec.  1026.20(e)(3), other than the name and logo of the 
creditor or servicer, between the heading required by Sec.  
1026.20(e)(2) and the disclosures required by Sec.  1026.20(e)(2)(i) 
and (ii). The name and logo may be placed above the heading required 
Sec.  1026.20(e)(2).
    20(e)(4) Form of disclosures.
    1. Grouped and separate. The disclosures required by Sec.  
1026.20(e)(2) must be grouped together on the front side of a separate 
one-page document that contains no other material.
    2. Notice must be in writing in a form that the consumer may keep. 
The notice containing the disclosures required by Sec.  1026.20(e)(2) 
must be in writing in a form that the consumer may keep. See also Sec.  
1026.17(a) and related commentary for additional guidance on the form 
requirements applicable to the disclosures required by Sec.  
1026.20(e)(2).
    20(e)(5) Timing.
    20(e)(5)(i) Cancellation upon consumer's request.
    1. Timing requirements Section 1026.20(e)(5)(i) provides that if 
the creditor or servicer cancels the escrow account at the consumer's 
request, the creditor or servicer shall ensure that the consumer 
receives the disclosures required by Sec.  1026.20(e)(2) no later than 
three business days before closure of the consumer's escrow account. 
For example, for closure to occur on Thursday, the consumer must 
receive the disclosures on or before Monday, assuming each weekday is a 
business day. For purposes of Sec.  1026.20(e)(5), the term ``business 
day'' means all calendar days except Sundays and legal public holidays 
referred to in Sec.  1026.2(a)(6). See comment 2(a)(6)-2.
    20(e)(5)(iii) Receipt of disclosure.
    1. Timing of receipt. Section 1026.20(e)(5)(iii) provides that if 
the disclosures required under Sec.  1026.20(e)(2) are not provided to 
the consumer in person, the consumer is considered to have received the 
disclosures three business days after they are delivered or placed in 
the mail. If the creditor or servicer provides the disclosures required 
by Sec.  1026.20(e)(2) by mail, the consumer is considered to have 
received them three business days after they are placed in the mail for 
purposes of determining when the waiting periods required by Sec.  
1026.20(e)(5)(i) and (ii) begins. Creditors and servicers that use 
electronic mail or a courier to provide disclosures may also follow 
this approach. If, however, the creditor or servicer delivers the 
disclosures required by Sec.  1026.20(e)(2) to the consumer in person, 
the escrow account may be closed any time on the third or 30th business 
day following the date of delivery, as applicable. Whatever method is 
used to provide disclosures, creditors and servicers may rely on 
documentation of receipt in determining when the waiting periods 
required by Sec.  1026.20(e)(5)(i) and (ii) begin.
* * * * *

Section 1026.22--Determination of Annual Percentage Rate

    22(a) Accuracy of annual percentage rate.
* * * * *
    22(a)(4) Mortgage loans.
    1. Example. If a creditor improperly omits a $75 fee from the 
finance charge on a regular transaction, the understated finance charge 
is considered accurate under Sec.  1026.18(d)(1) or Sec.  
1026.38(o)(2), as applicable, and the annual percentage rate 
corresponding to that understated finance charge also is considered 
accurate even if it falls outside the tolerance of \1/8\ of 1 
percentage point provided under Sec.  1026.22(a)(2). Because a $75 
error was made, an annual percentage rate corresponding to a $100 
understatement of the finance charge would not be considered accurate.
* * * * *

Section 1026.24--Advertising

* * * * *
    24(d) Advertisement of terms that require additional disclosures.
* * * * *
    24(d)(2) Additional terms.
* * * * *
    2. Disclosure of repayment terms. The phrase ``terms of repayment'' 
generally has the same meaning as the ``payment schedule'' required to 
be disclosed under Sec.  1026.18(g), the interest rate and payment 
summary table required to be disclosed pursuant to Sec.  1026.18(s), or 
the projected payments table required to be disclosed pursuant to 
Sec. Sec.  1026.37(c) and 1026.38(c), as applicable. Section 
1026.24(d)(2)(ii) provides flexibility to creditors in making this 
disclosure for advertising purposes. Repayment terms may be expressed 
in a variety of ways in addition to an exact repayment schedule; this 
is particularly true for advertisements that do not contemplate a 
single specific transaction. Repayment terms, however, must reflect the 
consumer's repayment obligations over the full term of the loan, 
including any balloon payment, see comment 24(d)(2)-3, not just the 
repayment terms that will apply for a limited period of time. For 
example:
    i. A creditor may use a unit-cost approach in making the required 
disclosure, such as ``48 monthly payments of $27.83 per $1,000 
borrowed.''
    ii. In an advertisement for credit secured by a dwelling, when any 
series of payments varies because of the inclusion of mortgage 
insurance premiums, a creditor may state the number and timing of 
payments, the fact that payments do not include amounts for mortgage 
insurance premiums, and that the actual payment obligation will be 
higher.
    iii. In an advertisement for credit secured by a dwelling, when one 
series of monthly payments will apply for a limited period of time 
followed by a series of higher monthly payments for the remaining term 
of the loan, the advertisement must state the number and time period of 
each series of payments, and the amounts of each of those payments. For 
this purpose, the creditor must assume that the consumer makes the 
lower series of payments for the maximum allowable period of time.
* * * * *

[[Page 80330]]

Subpart D--Miscellaneous

Section 1026.25--Record Retention

* * * * *
    25(c) Records related to certain requirements for mortgage loans.
    25(c)(1) Records related to requirements for loans secured by real 
property.
    1. Evidence of required actions. The creditor must retain evidence 
that it performed the required actions as well as made the required 
disclosures. This includes, for example, evidence that the creditor 
properly differentiated between affiliated and independent third party 
settlement service providers for determining good faith under Sec.  
1026.19(e)(3); evidence that the creditor properly documented the 
reason for revisions under Sec.  1026.19(e)(3)(iv); or evidence that 
the creditor properly calculated average cost under Sec.  
1026.19(f)(3)(ii).
    2. Mortgage brokers. See Sec.  1026.19(e)(1)(ii)(B) for the 
responsibilities of mortgage brokers to comply with the requirements of 
Sec.  1026.25(c).
* * * * *

Section 1026.28--Effect on State Laws

    28(a) Inconsistent disclosure requirements.
    1. General. There are three sets of preemption criteria: One 
applies to the general disclosure and advertising rules of the 
regulation, and two apply to the credit billing provisions. Section 
1026.28 also provides for Bureau determinations of preemption. For 
purposes of determining whether a State law is inconsistent with the 
requirements of sections 4 and 5 of RESPA (other than the RESPA section 
5(c) requirements regarding provision of a list of certified 
homeownership counselors) and Sec. Sec.  1026.19(e) and (f), 1026.37, 
and 1026.38 under Sec.  1026.28, any reference to ``creditor'' in Sec.  
1026.28 or this commentary includes a creditor, a mortgage broker, or a 
settlement agent, as applicable.
* * * * *

Section 1026.29--State Exemptions

    29(a) General rule.
* * * * *
    2. Substantial similarity. The ``substantially similar'' standard 
requires that State statutory or regulatory provisions and State 
interpretations of those provisions be generally the same as the 
Federal Act and Regulation Z. This includes the requirement that State 
provisions for reimbursement to consumers for overcharges be at least 
equivalent to those required in section 108 of the Act. A State will be 
eligible for an exemption even if its law covers classes of 
transactions not covered by the Federal law. For example, if a State's 
law covers agricultural credit, this will not prevent the Bureau from 
granting an exemption for consumer credit, even though agricultural 
credit is not covered by the Federal law. For transactions subject to 
Sec.  1026.19(e) and (f), Sec.  1026.29(a)(1) requires that the State 
statutory or regulatory provisions and State interpretations of those 
provisions require disclosures that are generally the same as the 
disclosures required by Sec.  1026.19(e) and (f), with form and content 
as prescribed by Sec. Sec.  1026.37 and 1026.38.
* * * * *
    4. Exemptions granted. i. The Bureau recognizes exemptions granted 
by the Board of Governors of the Federal Reserve System prior to July 
21, 2011, until and unless the Bureau makes and publishes any contrary 
determination. Effective October 1, 1982, the Board of Governors 
granted the following exemptions from portions of the revised Truth in 
Lending Act:
    A. Maine. Credit or lease transactions subject to the Maine 
Consumer Credit Code and its implementing regulations are exempt from 
chapters 2, 4 and 5 of the Federal Act. (The exemption does not apply 
to transactions in which a Federally chartered institution is a 
creditor or lessor.)
    B. Connecticut. Credit transactions subject to the Connecticut 
Truth in Lending Act are exempt from chapters 2 and 4 of the Federal 
Act. (The exemption does not apply to transactions in which a Federally 
chartered institution is a creditor.)
    C. Massachusetts. Credit transactions subject to the Massachusetts 
Truth in Lending Act are exempt from chapters 2 and 4 of the Federal 
Act. (The exemption does not apply to transactions in which a Federally 
chartered institution is a creditor.)
    D. Oklahoma. Credit or lease transactions subject to the Oklahoma 
Consumer Credit Code are exempt from chapters 2 and 5 of the Federal 
Act. (The exemption does not apply to sections 132 through 135 of the 
Federal Act, nor does it apply to transactions in which a Federally 
chartered institution is a creditor or lessor.)
    E. Wyoming. Credit transactions subject to the Wyoming Consumer 
Credit Code are exempt from chapter 2 of the Federal Act. (The 
exemption does not apply to transactions in which a Federally chartered 
institution is a creditor.)
    ii. Although RESPA and its implementing Regulation X do not provide 
procedures for granting State exemptions, for transactions subject to 
Sec.  1026.19(e) and (f), compliance with the requirements of 
Sec. Sec.  1026.19(e) and (f), 1026.37, and 1026.38 satisfies the 
requirements of sections 4 and 5 of RESPA (other than the RESPA section 
5(c) requirements regarding provision of a list of certified 
homeownership counselors). If such a transaction is subject to one of 
the State exemptions previously granted by the Board of Governors and 
noted in comment 29(a)-4.i above, however, then compliance with the 
requirements of any State laws and regulations incorporating the 
requirements of Sec. Sec.  1026.19(e) and (f), 1026.37, and 1026.38 
likewise satisfies the requirements of sections 4 and 5 of RESPA (other 
than the RESPA section 5(c) requirements regarding provision of a list 
of certified homeownership counselors) and the provisions of Regulation 
X (12 CFR part 1024) implementing those sections of RESPA.
* * * * *

Subpart E--Special Rules for Certain Home Mortgage Transactions

* * * * *

Section 1026.37--Content of Disclosures for Certain Mortgage 
Transactions (Loan Estimate)

    1. Disclosures not applicable. The disclosures required by Sec.  
1026.37 are required to reflect the terms of the legal obligation 
between the parties, and if any information necessary for an accurate 
disclosure is unknown to the creditor, the creditor shall make the 
disclosure in good faith, based on the best information reasonably 
available to the creditor pursuant to Sec. Sec.  1026.17(c) and 
1026.19(e). See comments 17(c)(1)-1, 17(c)(2)(i)-1 and -2, and 
19(e)(1)(i)-1. Where a disclosure is not applicable to a particular 
transaction, unless otherwise provided by Sec.  1026.37, form H-24 of 
appendix H to this part may not be modified to delete the disclosure 
from form H-24, or to state ``not applicable'' or ``N/A'' in place of 
such disclosure. The portion of the form pertaining to the inapplicable 
disclosure may be left blank, unless otherwise provided by Sec.  
1026.37. For example, in a transaction for which the consumer does not 
pay points to the creditor to reduce the interest rate, the amounts 
required to be disclosed by Sec.  1026.37(f)(1)(i) may be left blank on 
form H-24. As provided in Sec.  1026.37(i) and (j), however, the 
adjustable payment and adjustable interest rate tables required by 
those paragraphs may be

[[Page 80331]]

included only if those disclosures are applicable to the transaction 
and otherwise must be excluded.
    2. Format. See Sec.  1026.37(o) and its commentary for guidance on 
the proper format to be used in making the disclosures, as well as 
permissible modifications.
    37(a) General information.
    37(a)(3) Creditor.
    1. Multiple creditors. For transactions with multiple creditors, 
see Sec.  1026.17(d) and comment 17(d)-1 for further guidance. The 
creditor making the disclosures, however, must be identified as the 
creditor for purposes of Sec.  1026.37(a)(3).
    2. Mortgage broker as loan originator. In transactions involving a 
mortgage broker, the name and address of the creditor must be 
disclosed, if known, even if the mortgage broker provides the 
disclosures to the consumer under Sec.  1026.19(e)(1)(ii). As required 
by Sec.  1026.19(e)(1)(i), the mortgage broker must make a good faith 
effort to disclose the name and address of the creditor, but if the 
name of the creditor is not yet known, the disclosure required by Sec.  
1026.37(a)(3) may be left blank. See comment 37-1.
    37(a)(4) Date issued.
    1. Applicable date. Section 1026.37(a)(4) requires disclosure of 
the date the creditor mails or delivers the Loan Estimate to the 
consumer. The creditor's method of delivery does not affect the date 
issued. For example, if the creditor hand delivers the Loan Estimate to 
the consumer on August 14, or if the creditor places the Loan Estimate 
in the mail on August 14, the date disclosed under Sec.  1026.37(a)(4) 
is August 14.
    2. Mortgage broker as loan originator. In transactions involving a 
mortgage broker, the date disclosed is the date the mortgage broker 
mails or delivers the Loan Estimate to the consumer, because pursuant 
to Sec.  1026.19(e)(1)(ii), the mortgage broker is required to comply 
with all relevant requirements of Sec.  1026.19(e).
    37(a)(5) Applicants.
    1. Multiple consumers. If there is more than one consumer applying 
for the credit, Sec.  1026.37(a)(5) requires disclosure of the name and 
the mailing address of each consumer to whom the Loan Estimate will be 
delivered. If the names and mailing addresses of all consumers applying 
for the credit do not fit in the space allocated on the Loan Estimate, 
an additional page with that information may be appended to the end of 
the form. For additional information on permissible changes, see Sec.  
1026.37(o)(5) and its commentary.
    37(a)(6) Property.
    1. Alternate property address. Section 1026.37(a)(6) requires 
disclosure of the address including the zip code of the property that 
secures or will secure the transaction. A creditor complies with Sec.  
1026.37(a)(6) by disclosing a complete address for purposes of the U.S. 
Postal Service. If the address is unavailable, a creditor complies with 
Sec.  1026.37(a)(6) by disclosing the location of such property 
including a zip code, which is required in all instances. Location of 
the property under Sec.  1026.37(a)(6) includes location information, 
such as a lot number. The disclosure of multiple zip codes is permitted 
if the consumer is investigating home purchase opportunities in 
multiple zip codes.
    2. Personal property. Where personal property also secures the 
credit transaction, a description of that property may be disclosed, at 
the creditor's option pursuant to Sec.  1026.37(a)(6), if a description 
fits in the space provided on form H-24 for the disclosure required by 
Sec.  1026.37(a)(6). An additional page may not be appended to the form 
to disclose a description of personal property.
    3. Multiple properties. Where more than one property secures the 
credit transaction, Sec.  1026.37(a)(6) requires disclosure of all 
properties. If the addresses of all properties securing the transaction 
do not fit in the space allocated on the Loan Estimate, an additional 
page with that information with respect to real properties may be 
appended to the end of the form.
    37(a)(7) Sale price.
    1. Estimated property value. In transactions where there is no 
seller, such as in a refinancing, Sec.  1026.37(a)(7)(ii) requires the 
creditor to disclose the estimated value of the property identified in 
Sec.  1026.37(a)(6) at the time the disclosure is issued to the 
consumer. The creditor may use the estimate provided by the consumer at 
application, or if it has performed its own estimate of the property 
value by the time the disclosure is provided to the consumer, use that 
estimate. If the creditor has obtained any appraisals or valuations of 
the property for the application at the time the disclosure is issued 
to the consumer, the value determined by the appraisal or valuation to 
be used during underwriting for the application is disclosed as the 
estimated property value. If the creditor has obtained multiple 
appraisals or valuations and has not yet determined which one will be 
used during underwriting, it may disclose the value from any appraisal 
or valuation it reasonably believes it may use in underwriting the 
transaction. In a transaction that involves a seller, if the sale price 
is not yet known, the creditor complies with Sec.  1026.37(a)(7) if it 
discloses the estimated value of the property that it used as the basis 
for the disclosures in the Loan Estimate.
    2. Personal property. In transactions involving personal property 
that is separately valued from real property, only the value of the 
real property is disclosed pursuant to Sec.  1026.37(a)(7). Where 
personal property is included in the sale price of the real property 
(for example, if the consumer is purchasing the furniture inside the 
dwelling), however, Sec.  1026.37(a)(7) permits disclosure of the 
aggregate price without any reduction for the appraised or estimated 
value of the personal property.
    37(a)(8) Loan term.
    1. Partial years.
    i. Terms to maturity of 24 months or more. Section 1026.37(a)(8) 
requires disclosure of the term to maturity in years, or months, or 
both, as applicable. Where the term exceeds 24 months and equals a 
whole number of years, a creditor complies with Sec.  1026.37(a)(8) by 
disclosing the number of years, followed by the designation ``years.'' 
Where the term exceeds 24 months but does not equal a whole number of 
years, a creditor complies with Sec.  1026.37(a)(8) by disclosing the 
term to maturity as the number of years followed by the designation 
``yr.'' and the remaining number of months, followed by the designation 
``mo.'' For example, if the term to maturity of the transaction is 185 
months, the correct disclosure would be ``15 yr. 5 mo.''
    ii. Terms to maturity of less than 24 months. If the term to 
maturity is less than 24 months and does not equal a whole number of 
years, a creditor complies with Sec.  1026.37(a)(8) by disclosing the 
number of months only, followed by the designation ``mo.'' For example, 
if the term to maturity of a transaction is six months or 16 months, it 
would be disclosed as ``6 mo.'' or ``16 mo.,'' respectively. If the 
term to maturity is 12 months, however it would be disclosed simply as 
``1 year.''
    2. Adjustable loan term. Section 1026.37(a)(8) requires disclosure 
of the term to maturity of the credit transaction. If the term to 
maturity is adjustable, i.e., it is not known with certainty at 
consummation, the creditor complies with Sec.  1026.37(a)(8), if it 
discloses the possible range of the loan term, including the maximum 
number of years possible under the terms of the legal obligation. For 
example, if the loan term depends on the value of interest rate 
adjustments during the term of the loan, to calculate the maximum loan 
term, the creditor assumes that the

[[Page 80332]]

interest rate rises as rapidly as possible after consummation, taking 
into account the terms of the legal obligation, including any 
applicable caps on interest rate adjustments and lifetime interest rate 
cap.
    37(a)(9) Purpose.
    1. General. Section 1026.37(a)(9) requires disclosure of the 
consumer's intended use of the credit. In ascertaining the consumer's 
intended use, Sec.  1026.37(a)(9) requires the creditor to consider all 
relevant information known to the creditor at the time of the 
disclosure. If the purpose is not known, the creditor may rely on the 
consumer's stated purpose. The following examples illustrate when each 
of the permissible purposes should be disclosed:
    i. Purchase. The consumer intends to use the proceeds from the 
transaction to purchase the property that will secure the extension of 
credit.
    ii. Refinance. The consumer refinances an existing obligation 
already secured by the consumer's dwelling to change the rate, term, or 
other loan features and may or may not receive cash from the 
transaction. For example, in a refinance with no cash provided, the new 
amount financed does not exceed the unpaid principal balance, any 
earned unpaid finance charge on the existing debt, and amounts 
attributed solely to the costs of the refinancing. Conversely, in a 
refinance with cash provided, the consumer refinances an existing 
mortgage obligation and receives money from the transaction that is in 
addition to the funds used to pay the unpaid principal balance, any 
earned unpaid finance charge on the existing debt, and amounts 
attributed solely to the costs of the refinancing. In such a 
transaction, the consumer may, for example, use the newly-extended 
credit to pay off the balance of the existing mortgage and other 
consumer debt, such as a credit card balance.
    iii. Construction. Section 1026.37(a)(9)(iii) requires the creditor 
to disclose that the loan is for construction in transactions where the 
creditor extends credit to finance only the cost of initial 
construction (construction-only loan), not renovations to existing 
dwellings, and in transactions where a multiple advance loan may be 
permanently financed by the same creditor (construction-to-permanent 
loan). In a construction-only loan, the borrower may be required to 
make interest only payments during the loan term with the balance 
commonly due at the end of the construction project. For additional 
guidance on disclosing construction-to-permanent loans, see Sec.  
1026.17(c)(6)(ii), comments 17(c)(6)-2 and -3, and appendix D to this 
part.
    iv. Home equity loan. The creditor is required to disclose that the 
credit is for a ``home equity loan'' if the creditor intends to extend 
credit for any purpose other than a purchase, refinancing, or 
construction. This disclosure applies whether the loan is secured by a 
first or subordinate lien.
    2. Refinance coverage. The disclosure requirements under Sec.  
1026.37(a)(9)(ii) apply to credit transactions that meet the definition 
of a refinancing under Sec.  1026.20(a) but without regard to whether 
they are made by a creditor, holder, or servicer of the existing 
obligation. Section 1026.20(a) applies only to refinancings undertaken 
by the original creditor or a holder or servicer of the original debt. 
See comment 20(a)-5.
    37(a)(10) Product.
    1. No features. If the loan product disclosed pursuant to Sec.  
1026.37(a)(10) does not include any of the features described in Sec.  
1026.37(a)(10)(ii), only the product type and introductory and first 
adjustment periods, if applicable, are disclosed. For example:
    i. Adjustable rate. When disclosing an adjustable rate product, the 
disclosure of the loan product must be preceded by the length of the 
introductory period and the frequency of the first adjustment period 
thereafter. Thus, for example, if the loan product is an adjustable 
rate with an introductory rate that is fixed for the first five years 
of the loan term and then adjusts every three years starting in year 
six, the disclosure required by Sec.  1026.37(a)(10) is ``5/3 
Adjustable Rate.'' If the first adjustment period is not the period for 
all adjustments under the terms of the legal obligation, the creditor 
should still disclose the initial adjustment period and should not 
disclose other adjustment periods. For example, if the loan product is 
an adjustable rate with an introductory rate that is fixed for the 
first five years of the loan term and then adjusts every three years 
starting in year six, and then annually starting in year fifteen, the 
disclosure required by Sec.  1026.37(a)(10) would still be ``5/3 
Adjustable Rate.''
    A. No introductory period. If the loan product is an adjustable 
rate with no introductory rate, the creditor should disclose ``0'' 
where the introductory rate period would ordinarily be disclosed. For 
example, if the loan product is an adjustable rate that adjusts every 
three years with no introductory period, the disclosure required by 
Sec.  1026.37(a)(10) is ``0/3 Adjustable Rate.''
    B. Introductory period not yet known. If the loan product is an 
adjustable rate with an introductory period that is not yet known at 
the time of delivery of the Loan Estimate, the creditor should disclose 
the shortest potential introductory period for the particular loan 
product offered. For example, if the loan product is an adjustable rate 
with an introductory period that may be between 36 and 48 months and 
the rate would then adjust every year, the disclosure required by Sec.  
1026.37(a)(10) is ``3/1 Adjustable Rate.''
    ii. Step rate. If the loan product is a step rate with an 
introductory interest rate that lasts for ten years and adjusts every 
year thereafter for the next five years, and then adjusts every three 
years for the next 15 years, the disclosure required by Sec.  
1026.37(a)(10) is ``10/1 Step Rate.'' If the loan product is a step 
rate with no introductory rate, the creditor should disclose ``0'' 
where the introductory rate period would ordinarily be disclosed.
    iii. Fixed rate. If the loan product is not an adjustable rate or a 
step rate, as described in Sec.  1026.37(a)(10)(i)(A) and (B), even if 
an additional feature described in Sec.  1026.37(a)(10)(ii) may change 
the consumer's periodic payment, the disclosure required by Sec.  
1026.37(a)(10)(i) is ``Fixed Rate.''
    2. Additional features. When disclosing a loan product with at 
least one of the features described in Sec.  1026.37(a)(10)(ii), Sec.  
1026.37(a)(10)(iii) and (iv) require the disclosure of only the first 
applicable feature in the order of Sec.  1026.37(a)(10)(ii) and that it 
be preceded by the time period or the length of the introductory period 
and the frequency of the first adjustment period, as applicable, 
followed by a description of the loan product and its time period as 
provided for in Sec.  1026.37(a)(10)(i). For example:
    i. Negative amortization. Some loan products, such as ``payment 
option'' loans, permit the borrower to make payments that are 
insufficient to cover all of the interest accrued, and the unpaid 
interest is added to the principal balance. Where the loan product 
includes a loan feature that may cause the loan balance to increase, 
the disclosure required by Sec.  1026.37(a)(10)(ii)(A) is preceded by 
the time period that the borrower is permitted to make payments that 
result in negative amortization (e.g., ``2 Year Negative 
Amortization''), followed by the loan product type. Thus, a fixed rate 
product with a step-payment feature for the first two years of the 
legal obligation that may negatively amortize is disclosed as ``2 Year 
Negative Amortization, Fixed Rate.''
    ii. Interest only. When disclosing an ``Interest Only'' feature, as 
that term is

[[Page 80333]]

defined in Sec.  1026.18(s)(7)(iv), the applicable time period must 
precede the label ``Interest Only.'' Thus, a fixed rate loan with only 
interest due for the first five years of the loan term is disclosed as 
``5 Year Interest Only, Fixed Rate.'' If the interest only feature 
fails to cover the total interest due then, as required by Sec.  
1026.37(a)(10)(iii), the disclosure must reference the negative 
amortization feature and not the interest only feature (i.e., ``5 Year 
Negative Amortization, Fixed Rate'').
    iii. Step payment. When disclosing a step payment feature (which is 
sometimes referred to instead as a graduated payment), the period of 
time at the end of which the scheduled payments will change must 
precede the label ``Step Payment'' (e.g., ``5 Year Step Payment'') 
followed by the name of the loan product. Thus, a fixed rate mortgage 
subject to a 5-year step payment plan is disclosed as a ``5 Year Step 
Payment, Fixed Rate.''
    iv. Balloon payment. If a loan product includes a ``balloon 
payment,'' as that term is defined in Sec.  1026.37(b)(5), the 
disclosure of the balloon payment feature, including the year the 
payment is due, precedes the disclosure of the loan product. Thus, if 
the loan product is a step rate with an introductory rate that lasts 
for three years and adjusts each year thereafter until the balloon 
payment is due in the seventh year of the loan term, the disclosure 
required is ``Year 7 Balloon Payment, 3/1 Step Rate.'' If the loan 
product includes more than one balloon payment, only the earliest year 
that a balloon payment is due shall be disclosed.
    v. Seasonal payment. If a loan product includes a seasonal payment 
feature, Sec.  1026.37(a)(10)(ii)(E) requires that the creditor 
disclose the feature. The feature is not, however, required to be 
disclosed with any preceding time period. Disclosure of the label 
``Seasonal Payment'' without any preceding number of years satisfies 
this requirement.
    3. Periods not in whole years.
    i. Terms of 24 months or more. For product types and features that 
have introductory periods or adjustment periods that do not equate to a 
number of whole years, if the period is a number of months that is 24 
or greater and does not equate to a whole number of years, Sec.  
1026.37(a)(10) requires disclosure of the whole number of years 
followed by a decimal point with the remaining months rounded to two 
places. For example, if the loan product is an adjustable rate with an 
introductory period of 30 months that adjusts every year thereafter, 
the creditor would be required to disclose ``2.5/1 Adjustable Rate.'' 
If the introductory period were 31 months, the required disclosure 
would be 2.58/1 Adjustable Rate.''
    ii. Terms of less than 24 months. For product types and features 
that have introductory periods or adjustment periods that do not equate 
to a number of whole years, if the period is less than 24 months, Sec.  
1026.37(a)(10) requires disclosure of the number of months, followed by 
the designation ``mo.'' For example, if the product type is an 
adjustable rate with an 18-month introductory period that adjusts every 
18 months starting in the 19th month, the required disclosure would be 
``18 mo./18mo. Adjustable Rate.''
    iii. Adjustments more frequent than monthly. For adjustment periods 
that change more frequently than monthly, Sec.  1026.37(a)(10) requires 
disclosure of the applicable unit-period, such as daily, weekly, or bi-
weekly. For example, for an adjustable rate construction loan with no 
introductory fixed rate period where the interest rate adjusts every 
seven days, the disclosure required by Sec.  1026.37(a)(10) is ``0/
Weekly Adjustable Rate.''
    37(a)(11) Loan type.
    1. Other. If the transaction is a type other than a conventional, 
FHA, or VA loan, Sec.  1026.37(a)(11)(iv) requires the creditor to 
disclose the loan type as ``Other'' and provide a name or brief 
description of the loan type. For example, a loan that is guaranteed or 
funded by the Federal government under the Rural Housing Service (RHS) 
of the U.S. Department of Agriculture is required to be disclosed under 
the subcategory ``Other.'' Section 1026.37(a)(11)(iv) requires a brief 
description of the loan type (e.g., ``RHS''). A loan that is insured or 
guaranteed by a State agency must also be disclosed as ``Other.''
    37(a)(12) Loan identification number (Loan ID # ).
    1. Unique identifier. Section 1026.37(a)(12) requires that the 
creditor disclose a loan identification number that may be used by the 
creditor, consumer, and other parties to identify the transaction, 
labeled as ``Loan ID  .'' The loan identification number is 
determined by the creditor, which number may contain any alpha-numeric 
characters. Because the number must allow for the identification of the 
particular credit transaction under Sec.  1026.37(a)(12), a creditor 
must use a unique loan identification number, i.e., the creditor may 
not use the same loan identification number for different, but related, 
loan transactions (such as different loans to the same borrower). Where 
a creditor issues a revised Loan Estimate for a transaction, the loan 
identification number must be sufficient to enable identification of 
the transaction pursuant to Sec.  1026.37(a)(12).
    37(a)(13) Rate lock.
    1. Interest rate. For purposes of Sec.  1026.37(a)(13), the 
interest rate is locked for a specific period of time if the creditor 
has agreed to extend credit to the consumer at a given rate, subject to 
contingencies that are described in any rate lock agreement between the 
creditor and consumer.
    2. Expiration date. The disclosure required by Sec.  
1026.37(a)(13)(ii) related to estimated closing costs is required 
regardless of whether the interest rate is locked for a specific period 
of time or whether the terms and costs are otherwise accepted or 
extended.
    3. Time zone. The disclosure required by Sec.  1026.37(a)(13) 
requires the applicable time zone for all times provided, as determined 
by the creditor. For example, if the creditor is located in New York 
and determines that the Loan Estimate will expire at 5:00 p.m. in the 
time zone applicable to its location, while standard time is in effect, 
the disclosure must include a reference to the Eastern time zone (i.e., 
5:00 p.m. EST).
    37(b) Loan terms.
    1. Legal obligation. The disclosures required by Sec.  1026.37 must 
reflect good faith estimates of the credit terms to which the parties 
will be legally bound for the transaction. Accordingly, if certain 
terms of the transaction are known or reasonably available to the 
creditor, based on information such as the consumer's selection of a 
product type or other information in the consumer's application, Sec.  
1026.37 requires the creditor to disclose those credit terms. For 
example, if the consumer selects a product type with a prepayment 
penalty, Sec.  1026.37(b)(4) requires disclosure of the maximum amount 
of the prepayment penalty and period in which the prepayment penalty 
may be charged as known to the creditor at the time the disclosures are 
provided.
    37(b)(2) Interest rate.
    1. Interest rate at consummation not known. Where the interest rate 
that will apply at consummation is not known at the time the creditor 
must deliver the disclosures required by Sec.  1026.19(e), Sec.  
1026.37(b)(2) requires disclosure of the fully-indexed rate, defined as 
the index plus the margin at consummation. Although Sec.  1026.37(b)(2) 
refers to the index plus margin ``at consummation,'' if the index value 
that will be in effect at consummation is unknown at the time the 
disclosures are provided pursuant to Sec.  1026.19(e)(1)(iii), i.e., 
within three business days after receipt of a consumer's application, 
the fully-

[[Page 80334]]

indexed rate disclosed under Sec.  1026.37(b)(2) may be based on the 
index in effect at the time the disclosure is delivered. The index in 
effect at consummation (or the time the disclosure is delivered 
pursuant to Sec.  1026.19(e)) need not be used if the contract provides 
for a delay in the implementation of changes in an index value. For 
example, if the contract specifies that rate changes are based on the 
index value in effect 45 days before the change date, creditors may use 
any index value in effect during the 45 days before consummation (or 
any earlier date of disclosure) in calculating the fully-indexed rate 
to be disclosed.
    37(b)(3) Principal and interest payment.
    1. Frequency of principal and interest payment. Pursuant to Sec.  
1026.37(o)(5)(i), if the contract provides for a unit-period, as 
defined in appendix J to this part, of a month, such as a monthly 
payment schedule, the payment disclosed under Sec.  1026.37(b)(3) 
should be labeled ``Monthly Principal & Interest.'' If the contract 
requires bi-weekly payments of principal or interest, the payment 
should be labeled ``Bi-Weekly Principal & Interest.'' If a creditor 
voluntarily permits a payment schedule not provided for in the 
contract, such as an informal principal-reduction arrangement, the 
disclosure should reflect only the payment frequency provided for in 
the contract. See Sec.  1026.17(c)(1).
    2. Initial periodic payment if not known. Pursuant to Sec.  
1026.37(b)(3), the initial periodic payment amount that will be due 
under the terms of the legal obligation must be disclosed. If the 
initial periodic payment is not known because it will be based on an 
interest rate at consummation that is not known at the time the 
disclosures required by Sec.  1026.19(e) must be provided, for example 
if it is based on an external index that may fluctuate before 
consummation, Sec.  1026.37(b)(3) requires that the disclosure be based 
on the fully-indexed rate disclosed under Sec.  1026.37(b)(2). See 
comment 37(b)(2)-1 for guidance regarding calculating the fully-indexed 
rate.
    37(b)(4) Prepayment penalty.
    1. Transaction includes a prepayment penalty. Section 1026.37(b)(4) 
requires disclosure of a statement of whether the transaction includes 
a prepayment penalty. If the transaction includes a prepayment penalty, 
Sec.  1026.37(b)(7) sets forth the information that must be disclosed 
under Sec.  1026.37(b)(4) (i.e., the maximum amount of the prepayment 
penalty that may be imposed under the terms of the loan contract and 
the date on which the penalty will no longer be imposed). For an 
example of such disclosure, see form H-24 of appendix H to this part. 
The disclosure under Sec.  1026.37(b)(4) applies to transactions where 
the terms of the loan contract provide for a prepayment penalty, even 
though the creditor does not know at the time of the disclosure whether 
the consumer will, in fact, make a payment to the creditor that would 
cause imposition of the penalty. For example, if the monthly interest 
accrual amortization method described in comment 37(b)(4)-2.i is used 
such that interest is assessed on the balance for a full month even if 
the consumer makes a full prepayment before the end of the month, the 
transaction includes a prepayment penalty that must be disclosed 
pursuant to Sec.  1026.37(b)(4).
    2. Examples of prepayment penalties. For purposes of Sec.  
1026.37(b)(4), the following are examples of prepayment penalties:
    i. A charge determined by treating the loan balance as outstanding 
for a period of time after prepayment in full and applying the interest 
rate to such ``balance,'' even if the charge results from interest 
accrual amortization used for other payments in the transaction under 
the terms of the loan contract. ``Interest accrual amortization'' 
refers to the method by which the amount of interest due for each 
period (e.g., month) in a transaction's term is determined. For 
example, ``monthly interest accrual amortization'' treats each payment 
as made on the scheduled, monthly due date even if it is actually paid 
early or late (until the expiration of any grace period). Thus, under 
the terms of a loan contract providing for monthly interest accrual 
amortization, if the amount of interest due on May 1 for the preceding 
month of April is $3,000, the loan contract will require payment of 
$3,000 in interest for the month of April whether the payment is made 
on April 20, on May 1, or on May 10. In this example, if the consumer 
prepays the loan in full on April 20 and if the accrued interest as of 
that date is $2,000, then assessment of a charge of $3,000 constitutes 
a prepayment penalty of $1,000 because the amount of interest actually 
earned through April 20 is only $2,000.
    ii. A fee, such as an origination or other loan closing cost, that 
is waived by the creditor on the condition that the consumer does not 
prepay the loan. See comment 37(b)(4)-3.iii below for additional 
guidance regarding waived bona fide third-party charges imposed by the 
creditor if the consumer pays all of a covered transaction's principal 
before the date on which the principal is due sooner than 36 months 
after consummation.
    iii. A minimum finance charge in a simple interest transaction.
    iv. Computing a refund of unearned interest by a method that is 
less favorable to the consumer than the actuarial method, as defined by 
section 933(d) of the Housing and Community Development Act of 1992, 15 
U.S.C. 1615(d). For purposes of computing a refund of unearned 
interest, if using the actuarial method defined by applicable State law 
results in a refund that is greater than the refund calculated by using 
the method described in section 933(d) of the Housing and Community 
Development Act of 1992, creditors should use the State law definition 
in determining if a refund is a prepayment penalty.
    3. Fees that are not prepayment penalties. For purposes of Sec.  
1026.37(b)(4), fees that are not prepayment penalties include, for 
example:
    i. Fees imposed for preparing and providing documents when a loan 
is paid in full, if such fees are imposed whether or not the loan is 
prepaid. Examples include a loan payoff statement, a reconveyance 
document, or another document releasing the creditor's security 
interest in the dwelling that secures the loan.
    ii. Loan guarantee fees.
    iii. A waived bona fide third-party charge imposed by the creditor 
if the consumer pays all of a covered transaction's principal before 
the date on which the principal is due sooner than 36 months after 
consummation. For example, assume that at consummation, the creditor 
waives $3,000 in closing costs to cover bona fide third-party charges 
but the terms of the loan agreement provide that the creditor may 
recoup the $3,000 in waived charges if the consumer repays the entire 
loan balance sooner than 36 months after consummation. The $3,000 
charge is not a prepayment penalty. In contrast, for example, assume 
that at consummation, the creditor waives $3,000 in closing costs to 
cover bona fide third-party charges but the terms of the loan agreement 
provide that the creditor may recoup $4,500 in part to recoup waived 
charges, if the consumer repays the entire loan balance sooner than 36 
months after consummation. The $3,000 that the creditor may impose to 
cover the waived bona fide third-party charges is not a prepayment 
penalty, but the additional $1,500 charge is a prepayment penalty and 
must be disclosed pursuant to Sec.  1026.37(b)(4).

[[Page 80335]]

    4. Rebate of finance charge. For an obligation that includes a 
finance charge that does not take into account each reduction in the 
principal balance of the obligation, the disclosure under Sec.  
1026.37(b)(4) reflects whether or not the consumer is entitled to a 
rebate of any finance charge if the obligation is prepaid in full or 
part. Finance charges that do not take into account each reduction in 
the principal balance of an obligation may include precomputed finance 
charges. If any portion of an unearned precomputed finance charge will 
not be provided as a rebate upon full prepayment, the disclosure 
required by Sec.  1026.37(b)(4) will be an affirmative answer, indicate 
the maximum amount of such precomputed finance charge that may not be 
provided as a rebate to the consumer upon any prepayment, and state 
when the period during which a full rebate would not be provided 
terminates, as required by Sec.  1026.37(b)(7). If, instead, there will 
be a full rebate of the precomputed finance charge and no other 
prepayment penalty imposed on the consumer, to comply with the 
requirements of Sec.  1026.37(b)(4) and (7), the creditor states a 
negative answer only. If the transaction involves both a precomputed 
finance charge and a finance charge computed by application of a rate 
to an unpaid balance, disclosure about both the entitlement to any 
rebate of the finance charge upon prepayment and any other prepayment 
penalty are made as one disclosure under Sec.  1026.37(b)(4), stating 
one affirmative or negative answer and an aggregated amount and time 
period for the information required by Sec.  1026.37(b)(7). For 
example, if in such a transaction, a portion of the precomputed finance 
charge will not be provided as a rebate and the loan contract also 
provides for a prepayment penalty based on the amount prepaid, both 
disclosures are made under Sec.  1026.37(b)(4) as one aggregate amount, 
stating the maximum amount and time period under Sec.  1026.37(b)(7). 
If the transaction instead provides a rebate of the precomputed finance 
charge upon prepayment, but imposes a prepayment penalty based on the 
amount prepaid, to comply with Sec.  1026.37(b)(4), the creditor states 
an affirmative answer and the information about the prepayment penalty, 
as required by Sec.  1026.37(b)(7). For further guidance and examples 
of these types of charges, see comment 18(k)(2)-1. For analogous 
guidance, see comment 18(k)-2. For further guidance on prepaid finance 
charges generally, see comment 18(k)-3.
    5. Additional guidance. For additional guidance generally on 
disclosure of prepayment penalties, see comment 18(k)-1.
    37(b)(5) Balloon payment.
    1. Regular periodic payment. If a payment is not itself a regular 
periodic payment and is more than two times any one regular periodic 
payment during the loan term, then it is disclosed as a balloon payment 
under Sec.  1026.37(b)(5). The regular periodic payments used to 
determine whether a payment is a balloon payment under Sec.  
1026.37(b)(5) are the payments of principal and interest (or interest 
only, depending on the loan features) specified under the terms of the 
loan contract that are due from the consumer for two or more unit-
periods in succession. All regular periodic payments during the loan 
term are used to determine whether a particular payment is a balloon 
payment, regardless of whether the regular periodic payments have 
changed during the loan term due to rate adjustments or other payment 
changes permitted or required under the loan contract.
    i. For example, assume that, under a 15-year step rate mortgage, 
the loan contract provides for scheduled monthly payments of $300 each 
during the years one through three and scheduled monthly payments of 
$700 each during years four through 15. If an irregular payment of 
$1,000 is scheduled during the final month of year 15, that payment is 
disclosed as a balloon payment under Sec.  1026.37(b)(5), because it is 
more than two times the regular periodic payment amount of $300 during 
years one through three. This is the case even though the irregular 
payment is not more than two times the regular periodic payment of $700 
per month during years four through fifteen. The $700 monthly payments 
during years four through fifteen are not balloon payments even though 
they are more than two times the regular periodic payments during years 
one through three, because they are regular periodic payments.
    ii. If the loan has an adjustable rate under which the regular 
periodic payments may increase after consummation, but the amounts of 
such payment increases (if any) are unknown at the time of 
consummation, then the regular periodic payments are based on the 
fully-indexed rate, except as otherwise determined by any premium or 
discounted rates, the application of any interest rate adjustment caps, 
or any other known, scheduled rates under the terms specified in the 
loan contract. For analogous guidance, see comments 17(c)(1)-8 and -10. 
Similarly, if a loan has an adjustable interest rate which does not 
adjust the regular periodic payment but would, if the rate increased, 
increase only the final payment, the amount of the final payment for 
purposes of the balloon payment determination is based on the fully-
indexed rate, except as otherwise determined by any premium or 
discounted rate caps, or any other known, scheduled rates under the 
terms specified in the loan contract. For example, assume that, under a 
30-year adjustable rate mortgage, (1) the loan contract requires 
monthly payments of $300 during years one through five, (2) the loan 
contract permits interest rate increases every three years starting in 
the sixth year up to the fully-indexed rate, subject to caps on 
interest rate adjustments specified in the loan contract, (3) based on 
the application of the interest rate adjustment caps, the interest rate 
may increase to the fully-indexed rate starting in year nine, and (4) 
the monthly payment based on the fully-indexed rate is $700. The 
regular periodic payments during years one through five are $300 per 
month, because they are known and scheduled. The regular periodic 
payments during years six through eight are up to $700 per month, based 
on the fully-indexed rate but subject to the application of interest 
rate adjustment caps specified under the loan contract. The regular 
periodic payments during years nine through thirty are $700, based on 
the fully-indexed rate. Therefore, if an irregular payment of $1,000 is 
scheduled during the final month of year 30, that payment is disclosed 
as a balloon payment under Sec.  1026.37(b)(5), because it is more than 
two times the regular periodic payment amount of $300 during years one 
through five. This is the case even though the irregular payment is not 
more than two times the regular periodic payment during years nine 
through thirty (i.e., based on the fully-indexed rate). However, the 
regular periodic payments during years six through thirty themselves 
are not balloon payments, even though they may be more than two times 
the regular periodic payments during years one through five.
    iii. For a loan with a negative amortization feature, the regular 
periodic payment does not take into account the possibility that the 
consumer may exercise an option to make a payment greater than the 
scheduled periodic payment specified under the terms of the loan 
contract, if any.
    iv. A final payment that differs from other regular periodic 
payments because of rounding to account for payment amounts including 
fractions of cents is still a regular periodic payment and

[[Page 80336]]

need not be disclosed as a balloon payment under Sec.  1026.37(b)(5).
    v. The disclosure of balloon payments in the ``Projected Payments'' 
table under Sec.  1026.37(c) is governed by that section and its 
commentary, rather than Sec.  1026.37(b)(5), except that the 
determination, as a threshold matter, of whether a payment disclosed 
under Sec.  1026.37(c) is a balloon payment is made in accordance with 
Sec.  1026.37(b)(5) and its commentary.
    2. Single and double payment transactions. The definition of a 
``balloon payment'' under Sec.  1026.37(b)(5) includes the payments 
under transactions that require only one or two payments during the 
loan term, even though a single payment transaction does not require 
regular periodic payments, and a transaction with only two scheduled 
payments during the loan term may not require regular periodic 
payments.
    37(b)(6) Adjustments after consummation.
    1. Periods not in whole years. For guidance on how to disclose 
increases after consummation that occur after a period that does not 
equate to a number of whole years in compliance with Sec.  
1026.37(b)(6), see comment 37(a)(10)-3.
    37(b)(6)(i) Adjustment in loan amount.
    1. Additional information regarding adjustment in loan amount. A 
creditor complies with the requirement under Sec.  1026.37(b)(6)(i) to 
disclose additional information indicating whether the maximum 
principal balance is potential or is scheduled to occur under the terms 
of the legal obligation by using the phrase ``Can go as high as'' or 
``Goes as high as,'' respectively. A creditor complies with the 
requirement under Sec.  1026.37(b)(6)(i) to disclose additional 
information indicating the due date of the last payment that may cause 
the principal balance to increase by using the phrase ``Increases 
until.'' See form H-24 of appendix H to this part for the required 
format of such phrases, which is required for federally related 
mortgage loans under Sec.  1026.37(o)(3).
    37(b)(6)(ii) Adjustment in interest rate.
    1. Additional information regarding adjustment in interest rate. A 
creditor complies with the requirement under Sec.  1026.37(b)(6)(ii) to 
disclose additional information indicating the frequency of adjustments 
to the interest rate and date when the interest rate may first adjust 
by using the phrases ``Adjusts every'' and ``starting in.'' A creditor 
complies with the requirement under Sec.  1026.37(b)(6)(ii) to disclose 
additional information indicating the maximum interest rate, and the 
first date when the interest rate can reach the maximum interest rate 
using the phrase ``Can go as high as'' and then indicating the date at 
the end of that phrase or for a scheduled maximum interest rate under a 
step rate loan, ``Goes as high as.'' If the loan term may increase 
based on an interest rate adjustment, the disclosure shall indicate the 
maximum possible loan term using the phrase ``Can increase loan term 
to.'' See form H-24 of appendix H to this part for the required format 
of such phrases, which is required for federally related mortgage loans 
under Sec.  1026.37(o)(3).
    2. Interest rates that adjust at multiple intervals. If the terms 
of the legal obligation provide for more than one adjustment period, 
Sec.  1026.37(b)(6)(ii) requires disclosure of only the frequency of 
the first interest rate adjustment. For example, if the interest rate 
is fixed for five years, then adjusts every two years starting in year 
six, then adjusts every year starting in year 10, the disclosure 
required is ``Adjusts every 2 years starting in year 6.''
    37(b)(6)(iii) Increase in periodic payment.
    1. Additional information regarding increase in periodic payment. A 
creditor complies with the requirement under Sec.  1026.37(b)(6)(iii) 
to disclose additional information indicating the scheduled frequency 
of adjustments to the periodic principal and interest payment by using 
the phrases ``Adjusts every'' and ``starting in.'' A creditor complies 
with the requirement under Sec.  1026.37(b)(6)(iii) to disclose 
additional information indicating the maximum possible periodic 
principal and interest payment, and the date when the periodic 
principal and interest payment may first equal the maximum principal 
and interest payment by using the phrase ``Can go as high as'' and then 
indicating the date at the end of that phrase or for a scheduled 
maximum amount, such as under a step payment loan, ``Goes as high as.'' 
A creditor complies with the requirement under Sec.  1026.37(b)(6)(iii) 
to indicate that there is a period during which only interest is 
required to be paid and the due date of the last periodic payment of 
such period using the phrase ``Includes only interest and no principal 
until.'' See form H-24 of appendix H to this part for the required 
format of such phrases, which is required for federally related 
mortgage loans under Sec.  1026.37(o)(3).
    2. Periodic principal and interest payments that adjust at multiple 
intervals. If there are multiple periods of adjustment under the terms 
of the legal obligation, Sec.  1026.37(b)(6)(iii) requires disclosure 
of the frequency of only the first adjustment to the periodic principal 
and interest payment, regardless of the basis for the adjustment. 
Accordingly, where the periodic principal and interest payment may 
change because of more than one factor and such adjustments are on 
different schedules, the frequency disclosed is the adjustment of 
whichever factor adjusts first. For example, where the interest rate 
for a transaction is fixed until year six and then adjusts every three 
years but the transaction also has a negative amortization feature that 
ends in year seven, Sec.  1026.37(b)(6)(iii) requires disclosure that 
the interest rate will adjust every three years starting in year six 
because the periodic principal and interest payment adjusts based on 
the interest rate before it adjusts based on the end of the negative 
amortization period.
    37(b)(7) Details about prepayment penalty and balloon payment.
    Paragraph 37(b)(7)(i).
    1. Maximum prepayment penalty. Section 1026.37(b)(7)(i) requires 
disclosure of the maximum amount of the prepayment penalty that may be 
imposed under the terms of the legal obligation. The creditor complies 
with Sec.  1026.37(b)(7)(i) when it assumes that the consumer prepays 
at a time when the prepayment penalty may be charged and that the 
consumer makes all payments prior to the prepayment on a timely basis 
and in the amount required by the terms of the legal obligation. The 
creditor must determine the maximum of each amount used in calculating 
the prepayment penalty. For example, if a transaction is fully 
amortizing and the prepayment penalty is two percent of the loan 
balance at the time of prepayment, the prepayment penalty amount should 
be determined by using the highest loan balance possible during the 
period in which the penalty may be imposed. If more than one type of 
prepayment penalty applies, the creditor must aggregate the maximum 
amount of each type of prepayment penalty in the maximum penalty 
disclosed.
    2. Additional information regarding prepayment penalty. A creditor 
complies with the requirement under Sec.  1026.37(b)(7)(i) to disclose 
additional information indicating the maximum amount of the prepayment 
penalty that may be imposed and the date when the period during which 
the penalty may be imposed terminates using the phrases ``As high as'' 
and ``if you pay off the loan during.'' See form H-24 of appendix H to 
this part for the required format of such phrases, which is

[[Page 80337]]

required for federally related mortgage loans under Sec.  
1026.37(o)(3).
    Paragraph 37(b)(7)(ii).
    1. Additional information regarding balloon payment. A creditor 
complies with the requirement under Sec.  1026.37(b)(7)(ii) to disclose 
additional information indicating the maximum amount of the balloon 
payment and the due date of such payment using the phrases ``You will 
have to pay'' and ``at the end of.'' See form H-24 of appendix H to 
this part for the required format of such phrases, which is required 
for federally related mortgage loans under Sec.  1026.37(o)(3). If the 
transaction includes more than one balloon payment, a creditor complies 
with Sec.  1026.37(b)(7)(ii) by disclosing the highest of the balloon 
payments and the due date of that payment.
    37(b)(8) Timing.
    1. Whole years. For adjustments that occur after a period of whole 
years, the timing of information required by Sec.  1026.37(b)(8) starts 
with year number ``1,'' counting from the date that interest for the 
first scheduled periodic payment begins to accrue for Sec.  
1026.37(b)(8)(i), or from the due date of the first periodic payment 
for Sec.  1026.37(b)(8)(ii), or from the date of consummation for Sec.  
1026.37(b)(8)(iii). For example, an interest rate that is fixed for 
five years and can first adjust at the beginning of the 61st month from 
the date that interest for the regularly scheduled periodic payment 
began to accrue would be disclosed as beginning to adjust in ``year 
6.'' A monthly periodic payment that adjusts starting with the 61st 
scheduled payment likewise would be disclosed as adjusting in ``year 
6.''
    2. Periods not in whole years. For adjustments that occur after a 
number of months less than 24 that do not equate to a number of whole 
years or within a number of days less than a week, see the guidance 
provided in comment 37(a)(10)-3.
    37(c) Projected payments.
    1. Definitions. For purposes of Sec.  1026.37(c), the terms 
``adjustable rate,'' ``fixed rate,'' ``negative amortization,'' and 
``interest only'' have the meanings in Sec.  1026.37(a)(10).
    37(c)(1) Periodic payment or range of payments.
    Paragraph 37(c)(1)(i).
    1. Periodic payments. For purposes of Sec.  1026.37(c)(1)(i), the 
periodic payment is the regularly scheduled payment of principal and 
interest, mortgage insurance premiums, and escrow payments described in 
Sec.  1026.37(c)(2) without regard to any final payment that differs 
from other payments because of rounding to account for payment amounts 
including fractions of cents.
    2. Initial periodic payment or range of payments. Section 
1026.37(c)(1)(i) requires the creditor to disclose the initial periodic 
payment or range of payments. The disclosure required is of the actual 
periodic payment or range of payments that corresponds to the interest 
rate that will apply at consummation, including any initial discounted 
or premium interest rate. For examples of discounted and premium rate 
transactions, see comment 17(c)(1)-10.v. For guidance regarding whether 
the disclosure should reflect a buydown, see comments 17(c)(1)-3 
through -5. If the initial periodic payment or range of payments may 
vary based on an adjustment to an index value that applies at 
consummation, Sec.  1026.37(c)(1)(i) requires that the disclosure of 
the initial periodic payment or range of payments be based on the 
fully-indexed rate disclosed under Sec.  1026.37(b)(2). See comment 
37(b)(2)-1 for guidance regarding calculating the fully-indexed rate.
    Paragraph 37(c)(1)(i)(A).
    1. Periodic principal and interest payments. For purposes of Sec.  
1026.37(c)(1)(i)(A), periodic principal and interest payments may 
change when the interest rate, applicable interest rate caps, required 
periodic principal and interest payments, or ranges of such payments 
may change. Minor payment variations resulting solely from the fact 
that months have different numbers of days are not changes to periodic 
principal and interest payments.
    2. Negative amortization. In a loan that contains a negative 
amortization feature, periodic principal and interest payments or the 
range of such payments may change for purposes of Sec.  
1026.37(c)(1)(i)(A) at the time the negative amortization period ends 
under the terms of the legal obligation, meaning the consumer must 
begin making payments that do not result in an increase of the 
principal balance. The occurrence of an event requiring disclosure of 
additional separate periodic payments or ranges of payments should be 
based on the assumption that the consumer will make payments as 
scheduled or, if applicable, elect to make the periodic payments that 
would extend the negative amortization period to the latest time 
permitted under the terms of the legal obligation. The occurrence of 
all subsequent events requiring disclosure of additional separate 
periodic payments or ranges of payments should be based on this 
assumption. The table required by Sec.  1026.37(c) should also reflect 
any balloon payment that would result from such scheduled payments or 
election. See Sec.  1026.37(c)(1)(ii)(A) for special rules regarding 
disclosure of balloon payments.
    3. Interest only. In a loan that contains an interest only feature, 
periodic principal and interest payments may change for purposes of 
Sec.  1026.37(c)(1)(i)(A) when the interest only period ends, meaning 
the consumer must begin making payments that do not defer repayment of 
principal.
    Paragraph 37(c)(1)(i)(B).
    1. Balloon payment. For purposes of Sec.  1026.37(c)(1)(i)(B), 
whether a balloon payment occurs is determined pursuant to Sec.  
1026.37(b)(5) and its commentary. For guidance on the amount of a 
balloon payment disclosed on the table required by Sec.  1026.37(c), 
see comment 37(c)(2)(i)-3.
    Paragraph 37(c)(1)(i)(C).
    1. General. ``Mortgage insurance or any functional equivalent'' 
means the amounts identified in Sec.  1026.4(b)(5). For purposes of 
Sec.  1026.37(c), ``mortgage insurance or any functional equivalent'' 
includes any mortgage guarantee that provides coverage similar to 
mortgage insurance (such as a United States Department of Veterans 
Affairs or United States Department of Agriculture guarantee), even if 
not technically considered insurance under State or other applicable 
law. The fees for such a guarantee are included in ``mortgage insurance 
premiums.''
    2. Calculation of mortgage insurance termination. For purposes of 
Sec.  1026.37(c)(1)(i)(C), mortgage insurance premiums should be 
calculated based on the declining principal balance that will occur as 
a result of changes to the interest rate and payment amounts, applying 
the interest rates applicable to the transaction. Such calculation 
should take into account any initial discounted or premium interest 
rate. For example, for an adjustable rate transaction that has a 
discounted interest rate during an initial five-year period, the 
creditor makes the calculation using a composite rate based on the rate 
in effect during the initial five-year period and, thereafter, the 
fully-indexed rate, unless otherwise required by applicable law. For 
guidance on calculation of the amount of mortgage insurance premiums to 
disclose on the table required by Sec.  1026.37(c), see Sec.  
1026.37(c)(2)(ii) and its commentary. See comment 37(b)(2)-1 for 
guidance regarding calculating the fully-indexed rate.
    3. Disclosure of mortgage insurance termination. The table required 
by Sec.  1026.37(c) should reflect the consumer's mortgage insurance

[[Page 80338]]

premiums until the date on which the creditor must automatically 
terminate coverage under applicable law, even though the consumer may 
have a right to request that the insurance be cancelled earlier. Unlike 
termination of mortgage insurance, a subsequent decline in the 
consumer's mortgage insurance premiums is not, by itself, an event that 
requires the disclosure of additional separate periodic payments or 
ranges of payments in the table required by Sec.  1026.37(c). For 
example, some mortgage insurance programs annually adjust premiums 
based on the declining loan balance. Such annual adjustment to the 
amount of premiums would not require a separate disclosure of a 
periodic payment or range payments.
    Paragraph 37(c)(1)(i)(D).
    1. Anniversary of the due date of initial periodic payment. Section 
1026.37(c)(1)(i)(D) provides that the anniversary of the due date of 
the initial periodic payment or range of payments that immediately 
follows the occurrence of multiple events described in Sec.  
1026.37(c)(1)(i)(A) during a single year is an event that requires 
disclosure of additional periodic payments or ranges of payments. 
Section 1026.37(c)(1)(i)(A) provides that a potential change in the 
periodic principal and interest payment is an event requiring 
disclosure of additional separate periodic payments. See comment 
37(c)(1)(iii)(B)-1 for an example of the application of Sec.  
1026.37(c)(1)(i)(D).
    Paragraph 37(c)(1)(ii).
    Paragraph 37(c)(1)(ii)(A).
    1. Special rule regarding balloon payments that are final payments. 
Section 1026.37(c)(1)(ii)(A) is an exception to the general rule in 
Sec.  1026.37(c)(1)(ii), and requires that a balloon payment that is 
scheduled as a final payment under the terms of the legal obligation is 
always disclosed as a separate periodic payment or range of payments, 
in which case the creditor discloses as a single range of payments all 
events requiring disclosure of additional separate periodic payments or 
ranges of payments described in Sec.  1026.37(c)(1)(i)(A) through (D), 
other than the final balloon payment, occurring after the second 
separate periodic payment or range of payments disclosed. Balloon 
payments that are not scheduled as final payments under the terms of 
the legal obligation, such as a balloon payment due at the scheduled 
recast of a loan that permits negative amortization, are disclosed 
pursuant to the general rule in Sec.  1026.37(c)(1)(ii). A balloon 
payment that is a final payment is disclosed as a single payment, and 
not combined with other changes to periodic principal and interest 
payments and disclosed as a range.
    2. Example. Assume a loan with a term of seven years, where the 
interest rate adjusts each year for the first three years and is fixed 
thereafter, that provides for a balloon payment as the final payment, 
where no mortgage insurance is required, and no escrow account will be 
established for the payment of charges described in Sec.  
1026.37(c)(4)(ii). The creditor discloses on the table required by 
Sec.  1026.37(c) in the first column the initial periodic payment or 
range of payments, in the second column the periodic payment or range 
of payments that would apply after the first interest rate adjustment, 
in the third column the periodic payments or ranges of payments that 
would apply after the second interest rate adjustment until the final 
balloon payment (disclosed as a single range of payments), and in the 
fourth column the final balloon payment. Although the balloon payment 
that is scheduled as the final payment under the terms of the legal 
obligation occurs after the third separate periodic payment or range of 
payments, the creditor discloses the final balloon payment as a 
separate event requiring disclosure of additional periodic payments or 
range of payments due to the special rule in Sec.  
1026.37(c)(1)(ii)(A).
    Paragraph 37(c)(1)(ii)(B).
    1. Special rule regarding disclosure of the automatic termination 
of mortgage insurance. Section 1026.37(c)(1)(ii)(B) is an exception to 
the general rule in Sec.  1026.37(c)(1)(ii), and requires that the 
automatic termination of mortgage insurance or any functional 
equivalent under applicable law is disclosed as a separate periodic 
payment or range of payments only if the total number of separate 
periodic payments or ranges of payments otherwise disclosed does not 
exceed three. This means that the automatic termination of mortgage 
insurance or any functional equivalent under applicable law is 
disclosed as its own event only if there is a column in which to 
disclose it, i.e., there are only three other separate periodic 
payments or ranges of payments that are required to be disclosed. Where 
the automatic termination of mortgage insurance or any functional 
equivalent under applicable law is not disclosed as a separate periodic 
payment or range of payments, the absence of a required mortgage 
insurance payment is disclosed with the next disclosed event requiring 
disclosure of additional separate periodic payments or ranges of 
payments, as applicable.
    2. Examples of special rule regarding disclosure of the automatic 
termination of mortgage insurance. i. Assume a step-rate loan with a 
30-year term with an introductory interest rate that lasts for five 
years, a different interest rate that applies for the next five-year 
period, a final interest rate adjustment after 10 years, where mortgage 
insurance would terminate for purposes of Sec.  1026.37(c)(1)(i)(C) in 
the third year, and where no escrow account would be established for 
the payment of charges described in Sec.  1026.37(c)(4)(ii). The 
creditor would disclose on the table required by Sec.  1026.37(c) the 
initial periodic payment for years one through three (reflecting the 
principal and interest payment corresponding to the introductory 
interest rate and payments for mortgage insurance premiums), an 
additional separate periodic payment for years four and five 
(reflecting the principal and interest payment corresponding to the 
introductory rate and no payments for mortgage insurance premiums), an 
additional separate periodic payment or range of payments for years six 
through 10 (reflecting the principal and interest payment corresponding 
to the interest rate that would apply after the introductory rate), and 
an additional separate periodic payment or range of payments for years 
11 through 30 (reflecting the principal and interest payment 
corresponding to the interest rate that would apply after the second 
interest rate adjustment until the end of the loan term). In this 
example, the automatic termination of mortgage insurance would be 
separately disclosed on the table required by Sec.  1026.37(c) because 
the total number of separate periodic payments or ranges of payments 
otherwise disclosed pursuant to Sec.  1026.37(c)(1) does not exceed 
three.
    ii. Assume the same loan as above, except that the terms of the 
legal obligation also provide for a third interest rate adjustment that 
would occur after 15 years. The creditor would disclose on the table 
required by Sec.  1026.37(c) the initial periodic payment for years one 
through five (reflecting the principal and interest payment 
corresponding to the introductory interest rate and payments for 
mortgage insurance premiums), an additional separate periodic payment 
or range of payments for years six through 10 (reflecting the principal 
and interest payment corresponding to the interest rate that would 
apply after the first interest rate adjustment and no payments for 
mortgage insurance premiums), an additional separate periodic payment 
or range of payments for years 11 through 15 (reflecting the principal 
and interest payment corresponding to the interest rate that

[[Page 80339]]

would apply after the second interest rate adjustment), and an 
additional separate periodic payment or range of payments for years 16 
through 30 (reflecting the principal and interest payment corresponding 
to the interest rate that would apply after the third interest rate 
adjustment until the end of the loan term). In this example, the 
automatic termination of mortgage insurance would not be separately 
disclosed on the table required by Sec.  1026.37(c) because the total 
number of separate periodic payments or ranges of payments otherwise 
disclosed pursuant to Sec.  1026.37(c)(1) exceeds three. However, the 
creditor would disclose the termination of mortgage insurance beginning 
with the periodic payment or range of payments for years six through 
10, which is the next disclosed event requiring disclosure of 
additional separate periodic payments or ranges of payments.
    Paragraph 37(c)(1)(iii).
    1. Ranges of payments. When a range of payments is required to be 
disclosed under Sec.  1026.37(c)(1), Sec.  1026.37(c)(1)(iii) requires 
the creditor to disclose the minimum and maximum amount for both the 
principal and interest payment under Sec.  1026.37(c)(2)(i) and the 
total periodic payment under Sec.  1026.37(c)(2)(iv). The amount 
required to be disclosed for mortgage insurance premiums pursuant to 
Sec.  1026.37(c)(2)(ii) and the amount payable into an escrow account 
pursuant to Sec.  1026.37(c)(2)(iii) shall not be disclosed as a range.
    Paragraph 37(c)(1)(iii)(B).
    1. Multiple events occurring in a single year. If changes to 
periodic principal and interest payments would result in more than one 
separate periodic payment or range of payments in a single year, Sec.  
1026.37(c)(1)(iii)(B) requires the creditor to disclose the range of 
payments that would apply during the year in which the events occur. 
For example, assume a loan with a 30-year term with a payment that 
adjusts every month for the first 12 months and is fixed thereafter, 
where mortgage insurance is not required, and where no escrow account 
would be established for the payment of charges described in Sec.  
1026.37(c)(4)(ii). The creditor discloses as a single range of payments 
the initial periodic payment and the periodic payment that would apply 
after each payment adjustment during the first 12 months and would also 
disclose, as an additional separate periodic payment or range of 
payments, the periodic principal and interest payment or range of 
payments that would apply after the payment becomes fixed. Assume 
instead a loan with a 30-year term with a payment that adjusts upward 
at three months and at six months and is fixed thereafter, where 
mortgage insurance is not required, and where no escrow account would 
be established for the payment of charges described in Sec.  
1026.37(c)(4)(ii). The creditor discloses as a single range of payments 
the initial periodic payment, the periodic payment that would apply 
after the payment adjustment that occurs at three months, and the 
periodic payment that would apply after the payment adjustment that 
occurs at six months, which single range represents the minimum payment 
and maximum payment, respectively, which would apply during the first 
year of the loan. Pursuant to Sec.  1026.37(c)(1)(i)(D), the creditor 
also discloses as an additional separate periodic payment or range of 
payments, the principal and interest payment that would apply on the 
one-year anniversary of the due date of the initial periodic payment or 
range of payments, because that is the anniversary that immediately 
follows the occurrence of the multiple payments or ranges of payments 
that occurred during the first year of the loan. Assume that the same 
loan has a payment that, instead of becoming fixed after the adjustment 
at six months, adjusts once more at 18 months and becomes fixed 
thereafter. The creditor would disclose the same single range of 
payments for year one. Pursuant to Sec.  1026.37(c)(1)(iii)(B), the 
creditor also discloses the principal and interest payment that would 
apply on the one-year anniversary of the due date of the initial 
periodic payment (as required by Sec.  1026.37(c)(1)(i)(D)) and the 
periodic payment that would apply after the payment adjustment that 
occurs at 18 months as a single range of payments in year two. Pursuant 
to Sec.  1026.37(c)(1)(i)(D), the creditor also discloses as an 
additional separate periodic payment or range of payments, the 
principal and interest payment that would apply on the two-year 
anniversary of the due date of the initial periodic payment or range of 
payments, because that is the anniversary that immediately follows the 
occurrence of the multiple payments or ranges of payments that occurred 
during the second year of the loan.
    Paragraph 37(c)(1)(iii)(C).
    1. Adjustable rate mortgages. For an adjustable rate loan, the 
periodic principal and interest payment at each time the interest rate 
may change will depend on the rate that applies at the time of the 
adjustment, which is not known at the time the disclosure is provided. 
As a result, the creditor discloses the minimum and maximum periodic 
principal and interest payment that could apply during each period 
disclosed pursuant to Sec.  1026.37(c)(1) after the first period.
    37(c)(2) Itemization.
    Paragraph 37(c)(2)(i).
    1. General rule for adjustable rate loans. For an adjustable rate 
loan, in disclosing the maximum possible payment for principal and 
interest under Sec.  1026.37(c), the creditor assumes that the interest 
rate will rise as rapidly as possible after consummation, taking into 
account the terms of the legal obligation, including any applicable 
caps on interest rate adjustments and lifetime interest rate cap. For a 
loan with no lifetime interest rate cap, the maximum rate is determined 
by reference to other applicable laws, such as State usury law. In 
disclosing the minimum payment for purposes of Sec.  1026.37(c), the 
creditor assumes that the interest rate will decrease as rapidly as 
possible after consummation, taking into account any introductory 
rates, caps on interest rate adjustments, and lifetime interest rate 
floor. For an adjustable rate loan based on an index that has no 
lifetime interest rate floor, the minimum interest rate is equal to the 
margin.
    2. Special rule for adjustable rate loans with negative 
amortization features. Section 1026.37(c)(2)(i)(B) provides a special 
rule for calculation of the maximum principal and interest payment in 
an adjustable rate loan that contains a negative amortization feature. 
That section provides that the maximum amounts payable for principal 
and interest after the negative amortization period ends are calculated 
using the maximum principal amount permitted under the terms of the 
legal obligation at the end of the negative amortization period. See 
section Sec.  1026.37(c)(1)(i)(A) and associated commentary for 
guidance regarding when the negative amortization period ends for 
purposes of Sec.  1026.37(c)(2). For example, if the maximum principal 
balance for the last payment in the negative amortization period is 
achieved at an interest rate that is not the maximum interest rate 
permitted under the terms of the legal obligation before the negative 
amortization period ends, future events requiring disclosure of 
additional, separate periodic payments or ranges of payments assume 
that the interest rate in effect at the end of the negative 
amortization period was such interest rate, and not the maximum 
possible interest rate. After the end of the negative amortization 
period, the general rule under Sec.  1026.37(c)(2)(i)(A) regarding 
assumptions of interest rate changes for the maximum principal and 
interest payment to be disclosed applies

[[Page 80340]]

from such interest rate. The minimum payment in an adjustable rate loan 
that contains a negative amortization feature is determined pursuant to 
the general rule under Sec.  1026.37(c)(2)(i)(A).
    3. Disclosure of balloon payment amounts. Although the existence of 
a balloon payment is determined pursuant to Sec.  1026.37(b)(5) and its 
commentary (see comment 37(c)(1)(i)(B)-1), balloon payment amounts to 
be disclosed under Sec.  1026.37(c) are calculated in the same manner 
as periodic principal and interest payments under Sec.  
1026.37(c)(2)(i). For example, for a balloon payment amount that can 
change depending on previous interest rate adjustments that are based 
on the value of an index at the time of the adjustment, the balloon 
payment amounts are calculated using the assumptions for minimum and 
maximum interest rates described in Sec.  1026.37(c)(2)(i) and its 
commentary, and should be disclosed as a range of payments.
    Paragraph 37(c)(2)(ii).
    1. Mortgage insurance disclosure. Mortgage insurance premiums 
should be reflected on the disclosure required by Sec.  1026.37(c) even 
if no escrow account is established for the payment of mortgage 
insurance premiums. If the consumer is not required to purchase 
mortgage insurance or any functional equivalent, the creditor discloses 
the mortgage insurance premium amount as ``0.'' If the creditor is 
disclosing the automatic termination or the absence of mortgage 
insurance or any functional equivalent under applicable law or the 
absence of mortgage insurance or any functional equivalent after 
coverage has terminated, the creditor discloses the mortgage insurance 
premium as ``-.''
    2. Relationship to principal and interest disclosure. The creditor 
discloses mortgage insurance premiums pursuant to Sec.  
1026.37(c)(2)(ii) on the same periodic basis that payments for 
principal and interest are disclosed pursuant to Sec.  
1026.37(c)(2)(i), even if mortgage insurance premiums are actually paid 
on some other periodic basis. If no escrow account for the payment of 
some or all such charges will be established, the creditor discloses 
the mortgage insurance premium as ``0.''
    Paragraph 37(c)(2)(iii).
    1. Escrow disclosure. The disclosure described in Sec.  
1026.37(c)(2)(iii) is required only if the creditor will establish an 
escrow account for the payment of some or all of the charges described 
in Sec.  1026.37(c)(4)(ii).
    37(c)(3) Subheadings.
    Paragraph 37(c)(3)(ii).
    1. Years. Section 1026.37(c)(3)(ii) requires that each separate 
periodic payment or range of payments be disclosed under a subheading 
that states the years during which that payment or range of payments 
will apply and that such subheadings be stated in a sequence of whole 
years from the due date of the initial periodic payment. Therefore, for 
purposes of Sec.  1026.37(c), ``year'' is defined as the twelve-month 
interval beginning on the due date of the initial periodic payment, and 
the next whole year begins each anniversary thereafter. If an event 
requiring the disclosure of an additional separate periodic payment or 
range of payments occurs on a date other than the anniversary of the 
due date of the initial periodic payment, and no other events occur 
during that single year requiring disclosure of multiple events under 
Sec.  1026.37(c)(1)(iii)(B), such event is disclosed beginning in the 
next year in the sequence, because the separate periodic payment or 
range of payments that applied during the previous year will also apply 
during a portion of that year. For example:
    i. Assume a fixed rate loan with a term of 124 months (10 years, 
four months). The creditor would label the disclosure of periodic 
payments as ``Years 1-11.''
    ii. Assume a loan with a 30-year term that does not require 
mortgage insurance and requires interest only payments for the first 60 
months from the due date of the initial periodic payment, then requires 
fixed, fully amortizing payments of principal and interest beginning at 
the 61st month for the duration of the loan, the creditor would label 
the first disclosure of periodic payments as ``Years 1-5'' (including 
the term ``only interest'' pursuant to Sec.  1026.37(c)(2)(i)) and the 
second disclosure of periodic payments or range of payments as ``Years 
6-30.'' If that loan requires interest only payments for the first 54 
months from the due date of the initial periodic payment, then requires 
fixed, fully amortizing payments of principal and interest for the 
duration of the loan, because the change in the periodic payment occurs 
on a date other than the anniversary of the due date of the initial 
periodic payment and the previous payment applies during that year, the 
creditor would likewise label the first disclosure of periodic payments 
as ``Years 1-5'' (including the term ``only interest'' pursuant to 
Sec.  1026.37(c)(2)(i)) and the second disclosure of periodic payments 
or range of payments as ``Years 6-30.'' If the loan that requires 
interest only payments for the first 54 months also requires mortgage 
insurance that would automatically terminate under applicable law after 
the 100th month from the due date of the initial periodic payment, the 
creditor would label the first disclosure of periodic payments as 
``Years 1-5'' (including the term ``only interest'' pursuant to Sec.  
1026.37(c)(2)(i)), the second disclosure of periodic payments or range 
of payments as ``Years 6-9,'' and the third disclosure of periodic 
payments or range of payments as ``Years 10-30.''
    2. Loans with variable terms. If the loan term may increase based 
on an adjustment of the interest rate, the creditor must disclose the 
maximum loan term possible under the legal obligation. To calculate the 
maximum loan term, the creditor assumes that the interest rate rises as 
rapidly as possible, taking into account the terms of the legal 
obligation, including any applicable caps on interest rate adjustments 
and lifetime interest rate cap. See comment 37(a)(8)-2.
    37(c)(4) Taxes, insurance, and assessments.
    Paragraph 37(c)(4)(ii).
    1. Definition of taxes, insurance, and assessments. See the 
commentary under Sec.  1026.43(b)(8) for guidance on the charges that 
are included in taxes, insurance, and assessments for purposes of Sec.  
1026.37(c)(4)(ii), except that the portion of that commentary related 
to amounts identified in Sec.  1026.4(b)(5) is inapplicable to the 
disclosure required by Sec.  1026.37(c)(4)(ii).
    Paragraph 37(c)(4)(iv).
    1. Description of other amounts. Section 1026.37(c)(4)(iv) requires 
the creditor to disclose a statement of whether the amount disclosed 
pursuant to Sec.  1026.37(c)(4)(ii) includes payments for property 
taxes, amounts identified in Sec.  1026.4(b)(8) (homeowner's insurance 
premiums), and other amounts described in Sec.  1026.37(c)(4)(ii), 
along with a description of any such other amounts. If the amount 
disclosed pursuant to Sec.  1026.37(c)(4)(ii) requires the creditor to 
disclose a description of more than one amount other than amounts for 
payment of property taxes or homeowner's insurance premiums, the 
creditor may disclose a descriptive statement of one such amount along 
with an indication that additional amounts are also included, such as 
by using the phrase ``and additional costs.''
    2. Amounts paid by the creditor using escrow account funds. Section 
1026.37(c)(4)(iv) requires the creditor to disclose an indication of 
whether the amounts disclosed pursuant to Sec.  1026.37(c)(4)(ii) will 
be paid by the creditor using escrow account funds. If the amount 
disclosed pursuant to

[[Page 80341]]

Sec.  1026.37(c)(4)(ii) requires the creditor to disclose a description 
of more than one amount other than amounts for payments of property 
taxes or homeowner's insurance and only some of those amounts will be 
paid by the creditor using escrow account funds, the creditor may 
indicate that only some of those amounts will be paid using escrow 
account funds, such as by using the word ``some.''
    37(d) Costs at closing.
    37(d)(2) Optional alternative table for transactions without a 
seller.
    1. Optional use. The optional disclosure of the estimated cash to 
close provided for in Sec.  1026.37(d)(2) only may be used by a 
creditor in a transaction without a seller. The use of this alternative 
estimated cash to close disclosure for transactions without a seller is 
optional, but only may be used in conjunction with the alternative 
disclosure under Sec.  1026.37(h)(2).
    2. Method of indication. The indication of whether the estimated 
cash is either due from or payable to the consumer can be made by the 
use of check boxes as shown in form H-24(D) of appendix H to this part.
    37(f) Closing cost details; loan costs.
    1. General description. The items disclosed under Sec.  1026.37(f) 
include services that the creditor or mortgage broker require for 
consummation, such as underwriting, appraisal, and title services.
    2. Mortgage broker. Commentary under Sec.  1026.19(e)(1)(ii) 
discusses the requirements and responsibilities of mortgage brokers 
that provide the disclosures required by Sec.  1026.19(e), which 
include the disclosures set forth in Sec.  1026.37(f).
    37(f)(1) Origination charges.
    1. Origination charges. Charges included under the subheading 
``Origination Charges'' pursuant to Sec.  1026.37(f)(1) are those 
charges paid by the consumer to each creditor and loan originator for 
originating and extending the credit, regardless of how such fees are 
denominated. In accordance with Sec.  1026.37(o)(4), the dollar amounts 
disclosed under Sec.  1026.37(f)(1) must be rounded to the nearest 
whole dollar and the percentage amounts must be disclosed as an exact 
number up to two or three decimal places, except that decimal places 
shall not be disclosed if the percentage is a whole number. See comment 
19(e)(3)(i)-3 for a discussion of when a fee is considered to be ``paid 
to'' a person. See Sec.  1026.36(a) and associated commentary for a 
discussion of the meaning of ``loan originator'' in connection with 
limits on compensation in a consumer credit transaction secured by a 
dwelling.
    2. Indirect loan originator compensation. Only charges paid 
directly by the consumer to compensate a loan originator are included 
in the amounts listed under Sec.  1026.37(f)(1). Compensation of a loan 
originator paid indirectly by the creditor through the interest rate is 
not itemized on the Loan Estimate required by Sec.  1026.19(e). 
However, pursuant to Sec.  1026.38(f)(1), such compensation is itemized 
on the Closing Disclosure required by Sec.  1026.19(f).
    3. Description of charges. Other than for points charged in 
connection with the transaction to reduce the interest rate, for which 
specific language must be used, the creditor may use a general label 
that uses terminology that, under Sec.  1026.37(f)(5), is consistent 
with Sec.  1026.17(a)(1), clearly and conspicuously describes the 
service that is disclosed as an origination charge pursuant to Sec.  
1026.37(f)(1). Items that are listed under the subheading ``Origination 
Charges'' may include, for example, application fee, origination fee, 
underwriting fee, processing fee, verification fee, and rate-lock fee.
    4. Points. If there are no points charged in connection with the 
transaction to reduce the interest rate, the creditor leaves blank the 
percentage of points used in the label and the dollar amount disclosed 
under Sec.  1026.37(f)(1)(i).
    5. Itemization. Creditors determine the level of itemization of 
``Origination Charges'' that is appropriate under Sec.  1026.37(f)(1) 
in relation to charges paid by the consumer to the creditor, subject to 
the limitations in Sec.  1026.37(f)(1)(ii). For example, the following 
charges should be itemized separately: compensation paid directly by a 
consumer to a loan originator that is not also the creditor; or a 
charge imposed to pay for a loan level pricing adjustment assessed on 
the creditor, which the creditor passes onto the consumer as a charge 
at consummation and not as an adjustment to the interest rate.
    37(f)(2) Services you cannot shop for.
    1. Services disclosed. Items included under the subheading 
``Services You Cannot Shop For'' pursuant to Sec.  1026.37(f)(2) are 
for those services that the creditor requires in connection with the 
transaction that would be provided by persons other than the creditor 
or mortgage broker and for which the creditor does not permit the 
consumer to shop in accordance with Sec.  1026.19(e)(1)(vi). Comment 
19(e)(1)(vi)-1 clarifies that a consumer is not permitted to shop if 
the consumer must choose a provider from a list provided by the 
creditor. Comment 19(e)(3)(i)-1 addresses determining good faith in 
providing estimates under Sec.  1026.19(e), including estimates for 
services for which the consumer cannot shop. Comments 19(e)(3)(iv)-1 
through -3 discuss limits and requirements applicable to providing 
revised estimates for services for which the consumer cannot shop.
    2. Examples of charges. Examples of the services and amounts to be 
disclosed pursuant to Sec.  1026.37(f)(2) might include an appraisal 
fee, appraisal management company fee, credit report fee, flood 
determination fee, government funding fee, homeowner's association 
certification fee, lender's attorney fee, tax status research fee, 
third-party subordination fee, title--closing protection letter fee, 
title--lender's title insurance policy, and an upfront mortgage 
insurance fee, provided that the fee is charged at consummation and is 
not a prepayment of future premiums over a specific future time period 
or a payment into an escrow account. Government funding fees include a 
United States Department of Veterans Affairs or United States 
Department of Agriculture guarantee fee, or any other fee paid to a 
government entity as part of a governmental loan program, that is paid 
at consummation.
    3. Title insurance services. The services required to be labeled 
beginning with ``Title -'' pursuant to Sec.  1026.37(f)(2) or (3) are 
those required for the issuance of title insurance policies to the 
creditor in connection with the consummation of the transaction or for 
conducting the closing. These services may include, for example:
    i. Examination and evaluation, based on relevant law and title 
insurance underwriting principles and guidelines, of the title evidence 
to determine the insurability of the title being examined and what 
items to include or exclude in any title commitment and policy to be 
issued;
    ii. Preparation and issuance of the title commitment or other 
document that discloses the status of the title as it is proposed to be 
insured, identifies the conditions that must be met before the policy 
will be issued, and obligates the insurer to issue a policy of title 
insurance if such conditions are met;
    iii. Resolution of underwriting issues and taking the steps needed 
to satisfy any conditions for the issuance of the policies;
    iv. Preparation and issuance of the policy or policies of title 
insurance; and
    v. Premiums for any title insurance coverage for the benefit of the 
creditor.

[[Page 80342]]

    4. Lender's title insurance policy. Section 1026.37(f)(2) and (3) 
requires disclosure of the amount the consumer will pay for the 
lender's title insurance policy. However, an owner's title insurance 
policy that covers the consumer and is not required to be purchased by 
the creditor is only disclosed pursuant to Sec.  1026.37(g). 
Accordingly, the creditor must quote the amount of the lender's title 
insurance coverage pursuant to Sec.  1026.37(f)(2) or (3) as applicable 
based on the type of lender's title insurance policy required by its 
underwriting standards for that loan. The amount disclosed for the 
lender's title insurance policy pursuant to Sec.  1026.37(f)(2) or (3) 
is the amount of the premium without any adjustment that might be made 
for the simultaneous purchase of an owner's title insurance policy. 
This amount may be disclosed as ``Title --Premium for Lender's 
Coverage,'' or in any similar manner that clearly indicates the amount 
of the premium disclosed pursuant to Sec.  1026.37(f)(2) is for the 
lender's title insurance coverage. See comment 37(g)(4)-1 for a 
discussion of the disclosure of the premium for an owner's title 
insurance policy that covers the consumer.
    37(f)(3) Services you can shop for.
    1. Services disclosed. Items included under the subheading 
``Services You Can Shop For'' pursuant to Sec.  1026.37(f)(3) are for 
those services: That the creditor requires in connection with its 
decision to make the loan; that would be provided by persons other than 
the creditor or mortgage broker; and for which the creditor allows the 
consumer to shop in accordance with Sec.  1026.19(e)(1)(vi). Comments 
19(e)(3)(ii)-1 through -3, and -5 address the determination of good 
faith in providing estimates of charges for services for which the 
consumer can shop. Comment 19(e)(3)(iii)-2 discusses the determination 
of good faith when the consumer chooses a provider that is not on the 
list the creditor provides to the consumer when the consumer is 
permitted to shop consistent with Sec.  1026.19(e)(1)(vi). Comments 
19(e)(3)(iv)-1 through -3 discuss limits and requirements applicable to 
providing revised estimates for services for which the consumer can 
shop.
    2. Example of charges. Examples of the services to be listed under 
this subheading pursuant to Sec.  1026.37(f)(3) might include a pest 
inspection fee, survey fee, title--closing agent fee, and title--
closing protection letter fee.
    3. Title insurance. See comments 37(f)(2)-3 and -4 for guidance on 
services that are to be labeled beginning with ``Title --'' and on 
calculating and labeling the amount disclosed for lender's title 
insurance pursuant to Sec.  1026.37(f)(3). See comment 37(g)(4)-1 for a 
discussion of the disclosure of the premium for owner's title insurance 
coverage.
    37(f)(5) Item descriptions and ordering.
    1. Clear and conspicuous standard. Section 1026.37(f)(5) requires 
creditors to label the loan costs disclosed pursuant Sec.  1026.37(f) 
using terminology that describes each item. A creditor complies with 
this requirement if it uses terminology that is clear and conspicuous, 
consistent with Sec.  1026.17(a)(1), and describes the service or 
administrative function that the charge pays for in a manner that is 
reasonably understood by consumers within the space provided in form H-
24 of appendix H to this part. For example, if a creditor imposes a fee 
on a consumer to cover the costs associated with underwriting the 
transaction, the creditor would comply with Sec.  1026.37(f)(5) if it 
labeled the cost ``Underwriting Fee.'' A label that uses abbreviations 
or acronyms that are not reasonably understood by consumers would not 
comply with Sec.  1026.37(f)(5).
    37(f)(6) Use of addenda.
    1. State law disclosures. If a creditor is required by State law to 
make additional disclosures that, pursuant to Sec.  1026.37(f)(6)(i), 
cannot be included in the disclosures required under Sec.  1026.37(f), 
the creditor may make those additional State law disclosures on a 
document whose pages are separate from, and are not presented as part 
of, the disclosures prescribed in Sec.  1026.37, for example, as an 
addendum to the Loan Estimate. See comment 37(o)(1)-1.
    2. Reference to addendum. If an addendum is used as permitted under 
Sec.  1026.37(f)(6)(ii), an example of a label that complies with the 
requirement for an appropriate reference on the last line is: ``See 
attached page for additional items you can shop for.''
    37(g) Closing cost details; other costs.
    1. General description. The items listed under the heading of 
``Other Costs'' pursuant to Sec.  1026.37(g) include services that are 
ancillary to the creditor's decision to evaluate the collateral and the 
consumer for the loan. The amounts disclosed for these items are: 
Established by government action; determined by standard calculations 
applied to ongoing fixed costs; or based on an obligation incurred by 
the consumer independently of any requirement imposed by the creditor. 
Except for prepaid interest under Sec.  1026.37(g)(2)(iii), or charges 
for optional credit insurance provided by the creditor, the creditor 
does not retain any of the amounts or portions of the amounts disclosed 
as other costs.
    2. Charges pursuant to property contract. The creditor is required 
to disclose charges that are described in Sec.  1026.37(g)(1) through 
(3). Other charges that are required to be paid at or before closing 
pursuant to the property contract for sale between the consumer and 
seller are disclosed on the Loan Estimate to the extent the creditor 
has knowledge of those charges when it issues the Loan Estimate, 
consistent with the good faith standard under Sec.  1026.19(e). A 
creditor has knowledge of those charges where, for example, it has the 
real estate purchase and sale contract. See also Sec.  1026.37(g)(4) 
and comment 37(g)(4)-3.
    37(g)(1) Taxes and other government fees.
    1. Recording fees. Recording fees listed under Sec.  1026.37(g)(1) 
are fees assessed by a government authority to record and index the 
loan and title documents as required under State or local law. 
Recording fees are assessed based on the type of document to be 
recorded or its physical characteristics, such as the number of pages. 
Unlike transfer taxes, recording fees are not based on the sale price 
of the property or loan amount. For example, a fee for recording a 
subordination agreement that is $20, plus $3 for each page over three 
pages, is a recording fee, but a fee of $1,250 based on 0.5 percent of 
the loan amount is a transfer tax, and not a recording fee.
    2. Other government charges. Any charges or fees imposed by a State 
or local government that are not transfer taxes are aggregated with 
recording fees and disclosed under Sec.  1026.37(g)(1)(i).
    3. Transfer taxes--terminology. In general, transfer taxes listed 
under Sec.  1026.37(g)(1) are State and local government fees on 
mortgages and home sales that are based on the loan amount or sales 
price, while recording fees are State and local government fees for 
recording the loan and title documents. The name that is used under 
State or local law to refer to these amounts is not determinative of 
whether they are disclosed as transfer taxes or as recording fees and 
other taxes under Sec.  1026.37(g)(1).
    4. Transfer taxes--consumer. Only transfer taxes paid by the 
consumer are disclosed on the Loan Estimate pursuant to Sec.  
1026.37(g)(1). State and local government transfer taxes are governed 
by State or local law, which determines if the seller or consumer is 
ultimately responsible for paying the transfer taxes. For example, if 
State law indicates a lien can attach to the consumer's acquired 
property if the transfer tax is

[[Page 80343]]

not paid, the transfer tax is disclosed. If State or local law is 
unclear or does not specifically attribute transfer taxes to the seller 
or the consumer, the creditor is in compliance with requirements of 
Sec.  1026.37(g)(1) if the amount of the transfer tax disclosed is not 
less than the amount apportioned to the consumer using common practice 
in the locality of the property.
    5. Transfer taxes--seller. Transfer taxes paid by the seller in a 
purchase transaction are not disclosed on the Loan Estimate under Sec.  
1026.37(g)(1), but are disclosed on the Closing Disclosure pursuant to 
Sec.  1026.38(g)(1)(ii).
    6. Deletion and addition of items. The lines and labels required by 
Sec.  1026.37(g)(1) may not be deleted, even if recording fees or 
transfer taxes are not charged to the consumer. No additional items may 
be listed under the subheading in Sec.  1026.37(g)(1).
    37(g)(2) Prepaids.
    1. Examples. Prepaid items required to be disclosed pursuant to 
Sec.  1026.37(g)(2) include the interest due at consummation for the 
period of time before interest begins to accrue for the first scheduled 
periodic payment and certain periodic charges that are required by the 
creditor to be paid at consummation. Each periodic charge listed as a 
prepaid item indicates, as applicable, the time period that the charge 
will cover, the daily amount, the percentage rate of interest used to 
calculate the charge, and the total dollar amount of the charge. 
Examples of periodic charges that are disclosed pursuant to Sec.  
1026.37(g)(2) include:
    i. Real estate property taxes due within 60 days after consummation 
of the transaction;
    ii. Past-due real estate property taxes;
    iii. Mortgage insurance premiums;
    iv. Flood insurance premiums; and
    v. Homeowner's insurance premiums.
    2. Interest rate. The interest rate disclosed pursuant to Sec.  
1026.37(g)(2)(iii) is the same interest rate disclosed pursuant to 
Sec.  1026.37(b)(2).
    3. Terminology. For purposes of Sec.  1026.37(g)(2), the term 
``property taxes'' has the same meaning as in Sec.  1026.43(b)(8) and 
further described in comment 43(b)(8)-2; the term ``homeowner's 
insurance'' means the amounts identified in Sec.  1026.4(b)(8); and the 
term ``mortgage insurance'' has the same meaning as ``mortgage 
insurance or any functional equivalent'' in Sec.  1026.37(c), which 
means the amounts identified in Sec.  1026.4(b)(5).
    4. Deletion of items. The lines and labels required by Sec.  
1026.37(g)(2) may not be deleted, even if amounts for those labeled 
items are not charged to the consumer. If an amount for a labeled item 
is not charged to the consumer, the time period, daily amount, and 
percentage used in the labels are left blank.
    37(g)(3) Initial escrow payment at closing.
    1. Listed item not charged. Pursuant to Sec.  1026.37(g)(3), each 
periodic charge to be included in the escrow or reserve account must be 
itemized under the ``Initial Escrow Payment at Closing'' subheading, 
with a relevant label, monthly payment amount, and number of months 
expected to be collected at consummation. If an item described in Sec.  
1026.37(g)(3)(i) through (iii) is not charged to the consumer, the 
monthly payment amount and time period used in the labels are left 
blank.
    2. Aggregate escrow account calculation. The aggregate escrow 
account adjustment required under Sec.  1026.38(g)(3) and 12 CFR 
1024.17(d)(2) is not included on the Loan Estimate under Sec.  
1026.37(g)(3).
    3. Terminology. As used in Sec.  1026.37(g)(3), the term ``property 
taxes'' has the same meaning as in Sec.  1026.43(b)(8) and further 
described in comment 43(b)(8)-2; the term ``homeowner's insurance'' 
means the amounts identified in Sec.  1026.4(b)(8); and the term 
``mortgage insurance'' has the same meaning as ``mortgage insurance or 
any functional equivalent'' in Sec.  1026.37(c).
    4. Deletion of items. The lines and labels required by Sec.  
1026.37(g)(3) may not be deleted, even if amounts for those labeled 
items are not charged to the consumer.
    5. Escrowed tax payments for different time frames. Payments for 
property taxes that are paid at different time periods can be itemized 
separately when done in accordance with 12 CFR 1024.17, as applicable. 
For example, a general property tax covering a fiscal year from January 
1 to December 31 can be listed as a property tax under Sec.  
1026.37(g)(3)(i); and a separate property tax to fund schools that 
cover a fiscal year from November 1 to October 31 can be added as a 
separate item under Sec.  1026.37(g)(3)(v).
    37(g)(4) Other.
    1. Owner's title insurance policy rate. The amount disclosed for an 
owner's title insurance premium pursuant to Sec.  1026.37(g)(4) is 
based on a basic owner's policy rate, and not on an ``enhanced'' title 
insurance policy premium, except that the creditor may instead disclose 
the premium for an ``enhanced'' policy when the ``enhanced'' title 
insurance policy is required by the real estate sales contract, if such 
requirement is known to the creditor when issuing the Loan Estimate. 
This amount should be disclosed as ``Title--Owner's Title Policy 
(optional),'' or in any similar manner that includes the introductory 
description ``Title -'' at the beginning of the label for the item, the 
parenthetical description ``(optional)'' at the end of the label, and 
clearly indicates the amount of the premium disclosed pursuant to Sec.  
1026.37(g)(4) is for the owner's title insurance coverage. See comment 
37(f)(2)-4 for a discussion of the disclosure of the premium for 
lender's title insurance coverage.
    2. Simultaneous title insurance premium rate in purchase 
transactions. The premium for an owner's title insurance policy for 
which a special rate may be available based on the simultaneous 
issuance of a lender's and an owner's policy is calculated and 
disclosed pursuant to Sec.  1026.37(g)(4) as follows:
    i. The title insurance premium for a lender's title policy is based 
on the full premium rate, consistent with Sec.  1026.37(f)(2) or 
(f)(3).
    ii. The owner's title insurance premium is calculated by taking the 
full owner's title insurance premium, adding the simultaneous issuance 
premium for the lender's coverage, and then deducting the full premium 
for lender's coverage.
    3. Designation of optional items. Products disclosed under Sec.  
1026.37(g)(4) for which the parenthetical description ``(optional)'' is 
included at the end of the label for the item include only items that 
are separate from any item disclosed on the Loan Estimate under 
paragraphs other than Sec.  1026.37(g)(4). For example, such items may 
include optional owner's title insurance, credit life insurance, debt 
suspension coverage, debt cancellation coverage, warranties of home 
appliances and systems, and similar products, when coverage is written 
in connection with a credit transaction that is subject to Sec.  
1026.19(e). However, because the requirement in Sec.  1026.37(g)(4)(ii) 
applies to separate products only, additional coverage and endorsements 
on insurance otherwise required by the lender are not disclosed under 
Sec.  1026.37(g)(4). See comments 4(b)(7) and (b)(8)-1 through -3 and 
comments 4(b)(10)-1 and -2 for guidance on determining when credit life 
insurance, debt suspension coverage, debt cancellation coverage, and 
similar coverage is written in connection with a transaction subject to 
Sec.  1026.19(e).
    4. Examples. Examples of other items that are disclosed under Sec.  
1026.37(g)(4) if the creditor is aware of those items when it issues 
the Loan Estimate include commissions of real estate

[[Page 80344]]

brokers or agents, additional payments to the seller to purchase 
personal property pursuant to the property contract, homeowner's 
association and condominium charges associated with the transfer of 
ownership, and fees for inspections not required by the creditor but 
paid by the consumer pursuant to the property contract. Although the 
consumer is obligated for these costs, they are not imposed upon the 
consumer by the creditor or loan originator. Therefore, they are not 
disclosed with the parenthetical description ``(optional)'' at the end 
of the label for the item, and they are disclosed pursuant to Sec.  
1026.37(g) rather than Sec.  1026.37(f). Even if such items are not 
required to be disclosed on the Loan Estimate under Sec.  
1026.37(g)(4), however, they may be required to be disclosed on the 
Closing Disclosure pursuant to Sec.  1026.38. Comment 19(e)(3)(iii)-3 
discusses application of the good faith requirement for services chosen 
by the consumer that are not required by the creditor.
    37(g)(6) Total closing costs.
    Paragraph 37(g)(6)(ii).
    1. Lender credits. Section 1026.19(e)(1)(i) requires disclosure of 
lender credits as provided in Sec.  1026.37(g)(6)(ii). Comment 
19(e)(3)(i)-5 describes such lender credits as payments from the 
creditor to the consumer that do not pay for a particular fee on the 
disclosures provided under Sec.  1026.37.
    2. Credits or rebates from the creditor to offset a portion or all 
of the closing costs. For loans where a portion or all of the closing 
costs are offset by a credit or rebate provided by the creditor 
(sometimes referred to as ``no-cost'' loans), whether all or a defined 
portion of the closing costs disclosed under Sec.  1026.37(f) or (g) 
will be paid by a credit or rebate from the creditor, the creditor 
discloses such credit or rebate as a lender credit under Sec.  
1026.37(g)(6)(ii). The creditor should ensure that the lender credit 
disclosed under Sec.  1026.37(g)(6)(ii) is sufficient to cover the 
estimated costs the creditor represented to the consumer as not being 
required to be paid by the consumer at consummation, regardless of 
whether such representations pertained to specific items.
    37(g)(7) Item descriptions and ordering.
    1. Clear and conspicuous standard. See comment 37(f)(5)-1 for 
guidance regarding the requirement to label items using terminology 
that describes each item.
    37(g)(8) Use of addenda.
    1. State law disclosures. If a creditor is required by State law to 
make additional disclosures that, pursuant to Sec.  1026.37(g)(8), 
cannot be included in the disclosures required under Sec.  1026.37(g), 
the creditor may make those additional State law disclosures on a 
separate document whose pages are physically separate from, and are not 
presented as part of, the disclosures prescribed in Sec.  1026.37. See 
comment 37(o)(1)-1.
    37(h) Calculating cash to close.
    37(h)(1) For all transactions.
    1. Labels for amounts disclosed. Section 1026.37(h)(1) describes 
the amounts that are used to calculate the estimated amount of cash or 
other funds that the consumer must provide at consummation. The labels 
that are to be used under Sec.  1026.37(h)(1) are illustrated by form 
H-24(A) of appendix H to this part.
    37(h)(1)(ii) Closing costs financed.
    1. Calculating amount. The amount of closing costs financed 
disclosed under Sec.  1026.37(h)(1)(ii) is determined by subtracting 
the estimated total amount of payments to third parties not otherwise 
disclosed pursuant to Sec.  1026.37(f) and Sec.  1026.37(g) from the 
total loan amount disclosed pursuant to Sec.  1026.37(b)(1). If the 
result of the calculation is a positive number, that amount is 
disclosed as a negative number under Sec.  1026.37(h)(1)(ii), but only 
to the extent that it does not exceed the total amount of lender 
credits disclosed under Sec.  1026.37(g)(6)(ii). If the result of the 
calculation is zero or negative, the amount of $0 is disclosed under 
Sec.  1026.37(h)(1)(ii).
    37(h)(1)(iii) Downpayment and other funds from borrower.
    1. No downpayment or funds from borrower. When the loan amount 
exceeds the purchase price of the property (other than a construction 
loan), the amount of $0 is disclosed under Sec.  1026.37(h)(1)(iii).
    37(h)(1)(iv) Deposit.
    1. Section 1026.37(h)(1)(iv)(A) requires disclosure of a deposit in 
a purchase transaction. The deposit to be disclosed under Sec.  
1026.37(h)(1)(iv)(A) is any amount that the consumer has agreed to pay 
to a party identified in the real estate purchase and sale agreement to 
be held until consummation of the transaction, which is often referred 
to as an earnest money deposit. In a purchase transaction in which no 
such deposit is paid in connection with the transaction, Sec.  
1026.37(h)(1)(iv)(A) requires the creditor to disclose $0. In any other 
type of transaction, Sec.  1026.37(h)(1)(iv)(B) requires disclosure of 
the deposit amount as $0.
    37(h)(1)(v) Funds for borrower.
    1. Use of calculation--non-purchase transactions. The calculation 
described in Sec.  1026.37(h)(1)(v) is only used to determine the 
amounts disclosed under Sec.  1026.37(h)(1)(iii) and (h)(1)(v) in a 
transaction that is not described as a purchase transaction under Sec.  
1026.37(a)(9)(i), in accordance with the provisions of Sec.  
1026.37(h)(1)(iii)(A). In a purchase transaction (other than a 
construction loan), the amount disclosed under Sec.  1026.37(h)(1)(v) 
will be $0, in accordance with Sec.  1026.37(h)(1)(v)(A).
    37(h)(1)(vi) Seller credits.
    1. Credits to be disclosed. The seller credits known to the 
creditor at the time of delivery of the Loan Estimate are disclosed 
under Sec.  1026.37(h)(1)(vi). For example, a creditor may know the 
amount of seller credits that will be paid in the transaction from 
information obtained verbally from the consumer, from a review of the 
purchase and sale contract, or from information obtained from a real 
estate agent in the transaction.
    2. Seller credits for specific charges. To the extent known by the 
creditor at the time of delivery of the Loan Estimate, seller credits 
for specific items disclosed under Sec.  1026.37(f) and (g) are 
represented by the total amount disclosed for those items.
    37(h)(1)(vii) Adjustments and other credits.
    1. Other credits known at the time the Loan Estimate is issued. 
Amounts expected to be paid by third parties not involved in the 
transaction, such as gifts from family members and not otherwise 
identified under Sec.  1026.37(h)(1), are included in the amount 
disclosed pursuant to Sec.  1026.37(h)(1)(vii).
    2. Persons that may make payments causing adjustment and other 
credits. Persons, as defined under Sec.  1026.2(a)(22), means natural 
persons or organizations. Accordingly, persons that may pay amounts 
disclosed under Sec.  1026.37(h)(1)(vii) include, for example, any 
individual family members providing gifts or a developer or home 
builder organization providing a credit in the transaction.
    3. Credits. Only credits from persons other than the creditor or 
seller can be disclosed pursuant to Sec.  1026.37(h)(1)(vii). Seller 
credits and credits from the creditor are disclosed pursuant to Sec.  
1026.37(h)(1)(vi) and Sec.  1026.37(g)(6)(ii), respectively.
    4. Other credits to be disclosed. Credits other than those from the 
creditor or seller are disclosed under Sec.  1026.37(h)(1)(vii). 
Disclosure of other credits is, like other disclosures under Sec.  
1026.37, subject to the good faith requirement under Sec.  
1026.19(e)(1)(i). See Sec.  1026.19(e)(1)(i) and comments 17(c)(2)(i)-1 
and 19(e)(1)(i)-1. The

[[Page 80345]]

creditor may obtain information regarding items to be disclosed under 
Sec.  1026.37(h)(1)(vii), for example, verbally from the consumer, from 
a review of the purchase and sale contract, or from information 
obtained from a real estate agent in the transaction.
    5. Proceeds from subordinate financing or other source. Funds that 
are provided to the consumer from the proceeds of subordinate 
financing, local or State housing assistance grants, or other similar 
sources are included in the amount disclosed under Sec.  
1026.37(h)(1)(vii).
    6. Reduction in amounts for adjustments. Adjustments that require 
additional funds from the consumer pursuant to the real estate purchase 
and sale contract, such as for additional personal property that will 
be disclosed on the Closing Disclosure under Sec.  1026.38(j)(1)(iii) 
or adjustments that will be disclosed on the Closing Disclosure under 
Sec.  1026.38(j)(1)(v) can be included in the amount disclosed under 
Sec.  1026.37(h)(1)(vii), and because the amount disclosed is a sum of 
adjustments and other credits, such amount would reduce the total 
amount disclosed. Additional examples of such adjustments for 
additional funds from the consumer include prorations for property 
taxes and homeowner's association dues.
    37(h)(1)(viii) Estimated cash to close.
    1. Result of cash to close calculation. The sum of the amounts 
disclosed pursuant to Sec.  1026.37(h)(1)(i) through (vii) is disclosed 
under Sec.  1026.37(h)(1)(viii) as either a positive number, a negative 
number, or zero. A positive number indicates the amount that the 
consumer will pay at consummation. A negative number indicates the 
amount that the consumer will receive at consummation. A result of zero 
indicates that the consumer will neither pay nor receive any amount at 
consummation.
    37(h)(2) Optional alternative calculating cash to close table for 
transactions without a seller.
    1. Optional use. The optional disclosure of the calculating cash to 
close table in Sec.  1026.37(h)(2) may only be provided by a creditor 
in a transaction without a seller. The use of this alternative table 
for transactions without a seller is optional, but must be used in 
conjunction with the disclosure under Sec.  1026.37(d)(2).
    37(h)(2)(iii) Payoffs and payments.
    1. Examples. Examples of the amounts incorporated in the total 
amount disclosed under Sec.  1026.37(h)(2)(iii) include, but are not 
limited to: payoffs of existing liens secured by the property 
identified under Sec.  1026.37(a)(6) such as existing mortgages, deeds 
of trust, judgments that have attached to the real property, mechanics' 
and materialmans' liens, and local, State and Federal tax liens; 
payments of unsecured outstanding debts of the consumer; and payments 
to other third parties for outstanding debts of the consumer (but not 
for settlement services) as required to be paid as a condition for the 
extension of credit.
    37(h)(2)(iv) Cash to or from consumer.
    1. Method of indication. The indication of whether the estimated 
cash to close is either due from or payable to the consumer is made by 
the use of check boxes, which is illustrated by form H-24(D) of 
appendix H to this part.
    37(h)(2)(v) Closing costs financed.
    1. Limitation on amount disclosed. The amount disclosed under Sec.  
1026.37(h)(2)(v) is limited to the total amount of closing costs 
disclosed under Sec.  1026.37(g)(6), even if the difference between 
Sec.  1026.37(h)(2)(i) and Sec.  1026.37(h)(2)(iii) is greater than the 
amount disclosed under Sec.  1026.37(g)(6).
    37(i) Adjustable payment table.
    1. When table is not permitted to be disclosed. The disclosure 
described in Sec.  1026.37(i) is required only if the periodic 
principal and interest payment may change after consummation based on a 
loan term other than a change to the interest rate, or the transaction 
contains a seasonal payment product feature as described in Sec.  
1026.37(a)(10)(ii)(E). If the transaction does not contain such loan 
terms, this table shall not appear on the Loan Estimate.
    2. Periods to be disclosed. Section 1026.37(i)(1) through (4) 
requires disclosure of the periods during which interest only, optional 
payment, step payment, and seasonal payment product features will be in 
effect. The periods required to be disclosed should be disclosed by 
describing the number of payments counting from the first periodic 
payment due after consummation. The period of seasonal payments 
required to be disclosed by Sec.  1026.37(i)(4), to be clear and 
conspicuous, should be disclosed with a noun that identifies the unit-
period, because such feature may apply on a regular basis during the 
loan term that does not depend on when regular periodic payments begin. 
The disclosures required by Sec.  1026.37(i)(1) through (4) may include 
abbreviations to fit in the space provided for the information on form 
H-24, provided the information is disclosed in a clear and conspicuous 
manner. For example:
    i. Period from date of consummation. If a loan has an interest only 
period for the first 60 regular periodic payments due after 
consummation, the disclosure states ``for your first 60 payments.''
    ii. Period during middle of loan term. If the loan has an interest 
only period between the 61st and 85th payments, the disclosure states 
``from your 61st to 85th payment.''
    iii. Multiple successive periods. If there are multiple periods 
during which a certain adjustable payment term applies, such as a 
period of step payments that occurs from the first through 12th 
payments, does not occur from the 13th through 24th payments, and 
occurs again from the 25th through 36th payments, the period disclosed 
is the entire span of all such periods. Accordingly, such period is 
disclosed as ``for your first 36 payments.''
    iv. Seasonal payments. For a seasonal payment product with a unit-
period of a month that does not require periodic payments for the 
months of June, July, and August each year during the loan term, 
because such feature depends on calendar months and not on when regular 
periodic payments begin, the period is disclosed as ``from June to 
August.'' For a transaction with a quarterly unit-period that does not 
require a periodic payment every third quarter during the loan term and 
does not depend on calendar months, the period is disclosed as ``every 
third payment.'' In the same transaction, if the seasonal payment 
feature ends after the 20th quarter, the period is disclosed as ``every 
quarter until the 20th quarter.'' As described above in this comment 
37(i)-2, the creditor may abbreviate ``quarter'' to ``quart.'' or 
``Q.''
    37(i)(5) Principal and interest payments.
    1. Statement of periodic payment frequency. The subheading required 
by Sec.  1026.37(i)(5) must include the unit-period of the transaction, 
such as ``quarterly,'' ``bi-weekly,'' or ``annual.'' This unit-period 
should be the same as disclosed under Sec.  1026.37(b)(3). See Sec.  
1026.37(o)(5)(i).
    2. Initial payment adjustment unknown. The disclosure required by 
Sec.  1026.37(i)(5) must state the number of the first payment for 
which the regular periodic principal and interest payment may change. 
This payment is typically set forth in the legal obligation. However, 
if the exact payment number of the first adjustment is not known at the 
time the creditor provides the Loan Estimate, the creditor must 
disclose the earliest possible payment that may change under the terms 
of the legal obligation, based on the information

[[Page 80346]]

available to the creditor at the time, as the initial payment number 
and amount.
    3. Subsequent changes. The disclosure required by Sec.  
1026.37(i)(5) must state the frequency of adjustments to the regular 
periodic principal and interest payment after the initial adjustment, 
if any, expressed in years, except if adjustments are more frequent 
than once every year, in which case the disclosure should be expressed 
as payments. If there is only one adjustment of the periodic payment 
under the terms of the legal obligation (for example, if the loan has 
an interest only period for the first 60 payments and there are no 
adjustments to the payment after the end of the interest only period), 
the disclosure should state: ``No subsequent changes.'' If the loan has 
graduated increases in the regular periodic payment every 12th payment, 
the disclosure should state: ``Every year.'' If the frequency of 
adjustments to the periodic payment may change under the terms of the 
legal obligation, the disclosure should state the smallest period of 
adjustments that may occur. For example, if an increase in the periodic 
payment is scheduled every sixth payment for 36 payments, and then 
every 12th payment for the next 24 payments, the disclosure should 
state: ``Every 6th payment.''
    4. Maximum payment. The disclosure required by Sec.  1026.37(i)(5) 
must state the larger of the maximum scheduled or maximum potential 
amount of a regular periodic principal and interest payment under the 
terms of the legal obligation, as well as the payment number of the 
first periodic principal and interest payment that can reach such 
amount. If the disclosed payment is scheduled, Sec.  1026.37(i)(5) 
requires that the disclosure state the payment number when such payment 
is reached with the preceding text, ``starting at.'' If the disclosed 
payment is only potential, as may be the case for a loan that permits 
optional payments, the disclosure states the earliest payment number 
when such payment can be reached with the preceding text, ``as early 
as.'' Section 1026.37(i)(5) requires that the first possible periodic 
principal and interest payment that can reach the maximum be disclosed. 
For example, for a fixed interest rate optional-payment loan with 
scheduled payments that result in negative amortization under the terms 
of the legal obligation, the maximum periodic payment disclosed should 
be based on the consumer having elected to make the periodic payments 
that would increase the principal balance to the maximum amount at the 
latest time possible before the loan begins to fully amortize, which 
would cause the periodic principal and interest payment to be the 
maximum possible. For example, if the earliest payment that could reach 
the maximum principal balance was the 41st payment at which time the 
loan would begin to amortize and the periodic principal and interest 
payment would be recalculated, but the last payment that permitted the 
principal balance to increase was the 60th payment, the disclosure 
required by Sec.  1026.37(i)(5) must assume the consumer only reaches 
the maximum principal balance at the 60th payment because this would 
result in the maximum possible principal and interest payment under the 
terms of the legal obligation. The disclosure must state the maximum 
periodic principal and interest payment based on this assumption and 
state ``as early as the 61st payment.''
    5. Payments that do not pay principal. Although the label of the 
disclosure required by Sec.  1026.37(i)(5) is ``Principal and Interest 
Payments,'' and the section refers to periodic principal and interest 
payments, it includes a scheduled periodic payment that only covers 
some or all of the interest that is due and not any principal (i.e., an 
interest only or negatively amortizing payment).
    37(j) Adjustable interest rate table.
    1. When table is not permitted to be disclosed. The disclosure 
described in Sec.  1026.37(j) is required only if the interest rate may 
increase after consummation, either based on changes to an index or 
scheduled changes to the interest rate. If the legal obligation does 
not permit the interest rate to adjust after consummation, such as for 
a ``Fixed Rate'' product under Sec.  1026.37(a)(10), this table is not 
permitted to appear on the Loan Estimate. The creditor may not disclose 
a blank table or a table with ``N/A'' inserted within each row.
    37(j)(1) Index and margin.
    1. Index and margin. The index disclosed pursuant to Sec.  
1026.37(j)(1) must be stated such that a consumer reasonably can 
identify it. A common abbreviation or acronym of the name of the index 
may be disclosed in place of the proper name of the index, if it is a 
commonly used public method of identifying the index. For example, 
``LIBOR'' may be disclosed instead of London Interbank Offered Rate. 
The margin should be disclosed as a percentage. For example, if the 
contract determines the interest rate by adding 4.25 percentage points 
to the index, the margin should be disclosed as ``4.25%.''
    37(j)(2) Increases in interest rate.
    1. Adjustments not based on an index. If the legal obligation 
includes both adjustments to the interest rate based on an external 
index and scheduled and pre-determined adjustments to the interest 
rate, such as for a ``Step Rate'' product under Sec.  1026.37(a)(10), 
the disclosure required by Sec.  1026.37(j)(1), and not Sec.  
1026.37(j)(2), must be provided pursuant to Sec.  1026.37(j)(2). The 
disclosure described in Sec.  1026.37(j)(2) is stated only if the 
product type does not permit the interest rate to adjust based on an 
external index.
    37(j)(3) Initial interest rate.
    1. Interest rate at consummation. In all cases, the interest rate 
in effect at consummation must be disclosed as the initial interest 
rate, even if it will apply only for a short period, such as one month.
    37(j)(4) Minimum and maximum interest rate.
    1. Minimum interest rate. The minimum interest rate required to be 
disclosed by Sec.  1026.37(j)(4) is the minimum interest rate that may 
occur at any time during the term of the transaction, after any 
introductory or ``teaser'' interest rate expires, under the terms of 
the legal obligation, such as an interest rate ``floor.'' If the terms 
of the legal obligation do not state a minimum interest rate, the 
minimum interest rate that applies to the transaction under applicable 
law must be disclosed. If the terms of the legal obligation do not 
state a minimum interest rate, and no other minimum interest rate 
applies to the transaction under applicable law, the amount of the 
margin is disclosed.
    2. Maximum interest rate. The maximum interest rate required to be 
disclosed pursuant to Sec.  1026.37(j)(4) is the maximum interest rate 
permitted under the terms of the legal obligation, such as an interest 
rate ``cap.'' If the terms of the legal obligation do not specify a 
maximum interest rate, the maximum interest rate permitted by 
applicable law, such as State usury law, must be disclosed.
    37(j)(5) Frequency of adjustments.
    1. Exact month unknown. The disclosure required by Sec.  
1026.37(j)(5) must state the first month for which the interest rate 
may change. This month is typically scheduled in the terms of the legal 
obligation. However, if the exact month is not known at the time the 
creditor provides the Loan Estimate, the creditor must disclose the 
earliest possible month under the terms of the legal obligation, based 
on the best information available to the creditor at the time.
    37(j)(6) Limits on interest rate changes.
    1. Different limits on subsequent interest rate adjustments. If 
more than one limit applies to the amount of

[[Page 80347]]

adjustments to the interest rate after the initial adjustment, the 
greatest limit on subsequent adjustments must be disclosed. For 
example, if the initial interest rate adjustment is capped at two 
percent, the second adjustment is capped at two and a half percent, and 
all subsequent adjustments are capped at three percent, the disclosure 
required by Sec.  1026.37(j)(6)(ii) states ``3%.''
    37(k) Contact information.
    1. NMLSR ID. Section 1026.37(k) requires the disclosure of an 
Nationwide Mortgage Licensing System and Registry (NMLSR ID) number for 
each creditor, mortgage broker, and loan officer identified on the Loan 
Estimate. The NMLSR ID is a unique number or other identifier generally 
assigned to individuals registered or licensed through NMLSR to provide 
loan originating services. For more information, see the Secure and 
Fair Enforcement for Mortgage Licensing Act of 2008 (SAFE Act) sections 
1503(3) and (12) and 1504 (12 U.S.C. 5102(3) and (12) and 5103), and 
its implementing regulations (i.e., 12 CFR 1007.103(a) and 
1008.103(a)(2)). An entity may also have an NMLSR ID. Thus, if the 
creditor, mortgage broker, or loan officer has obtained an NMLSR ID, 
the NMLSR IDs must be provided in the disclosures required by Sec.  
1026.37(k)(1) and (2).
    2. License number or unique identifier. Section 1026.37(k)(1) and 
(2) requires the disclosure of a license number or unique identifier 
for the creditor, mortgage broker, and loan officer if such entity or 
individual has not obtained an NMLSR ID. In such event, if the 
applicable State, locality, or other regulatory body with 
responsibility for licensing and/or registering such entity's or 
individual's business activities has issued a license number or other 
unique identifier to such entity or individual, that number is 
disclosed. In addition, Sec.  1026.37(k)(1) and (2) require the 
abbreviation of the State of the jurisdiction or regulatory body that 
issued such license or registration is required to be included before 
the word ``License'' in the label required by Sec.  1026.37(k)(1) and 
(2). If no such license or registration is required to be disclosed, 
such as if an NMLSR number is disclosed, the space provided for such an 
abbreviation in form H-24 of appendix H to this part may be left blank. 
A U.S. Postal Service State abbreviation complies with Sec.  
1026.37(k)(1) and (2), if applicable.
    3. Contact. Section 1026.37(k)(2) requires the disclosure of the 
name and NMLSR ID of the person who is the primary contact for the 
consumer, labeled ``Loan Officer.'' The loan officer is generally the 
natural person employed by the creditor or mortgage broker disclosed 
under Sec.  1026.37(k)(1) who interacts most frequently with the 
consumer and who has an NMLSR ID or, if none, a license number or other 
unique identifier to be disclosed under Sec.  1026.38(k)(2), as 
applicable.
    4. Email address and phone number. Section 1026.37(k)(3) requires 
disclosure of the loan officer's email address and phone number. 
Disclosure of a general number or email address for the loan officer's 
lender or mortgage broker, as applicable, satisfies this requirement if 
no such information is generally available for such person.
    37(l) Comparisons.
    37(l)(1) In five years.
    1. Loans with terms of less than five years. In transactions with a 
scheduled loan term of less than 60 months, to comply with Sec.  
1026.37(l)(1), the creditor discloses the amounts paid through the end 
of the loan term.
    Paragraph 37(l)(1)(i).
    1. Calculation of total payments in five years. The amount 
disclosed pursuant to Sec.  1026.37(l)(1)(i) is the sum of principal, 
interest, mortgage insurance, and loan costs scheduled to be paid 
through the end of the 60th month after the due date of the first 
periodic payment. For guidance on how to calculate interest for 
mortgage loans that are Adjustable Rate products under Sec.  
1026.37(a)(10)(i)(A) for purposes of Sec.  1026.37(l)(1)(i), see 
comment 17(c)(1)-10. In addition, for purposes of Sec.  
1026.37(l)(1)(i), the creditor should assume that the consumer makes 
payments as scheduled and on time. For purposes of Sec.  
1026.37(l)(1)(i), mortgage insurance means ``mortgage insurance or any 
fractional equivalent'' as defined pursuant to comment 37(c)(1)(i)(C)-1 
and includes prepaid or escrowed mortgage insurance. Loan costs are 
those costs disclosed pursuant to Sec.  1026.37(f).
    2. Negative amortization loans. For loans that have a negative 
amortization feature under Sec.  1026.37(a)(10)(ii)(A), the creditor 
calculates the total payments in five years using the scheduled 
payments, even if it is a negatively amortizing payment amount, until 
the consumer must begin making fully amortizing payments under the 
terms of the legal obligation.
    Paragraph 37(l)(1)(ii).
    1. Calculation of principal paid in five years. The disclosure 
required by Sec.  1026.37(l)(1)(ii) is calculated in the same manner as 
the disclosure required by Sec.  1026.37(l)(1)(i), except that the 
disclosed amount reflects only the total payments to principal through 
the end of the 60th month after the due date of the first periodic 
payment.
    37(l)(3) Total interest percentage.
    1. General. When calculating the total interest percentage, the 
creditor assumes that the consumer will make each payment in full and 
on time, and will not make any additional payments.
    2. Adjustable rate and step rate mortgages. For Adjustable Rate 
products under Sec.  1026.37(a)(10)(i)(A), Sec.  1026.37(l)(3) requires 
that the creditor compute the total interest percentage in accordance 
with comment 17(c)(1)-10. For Step Rate products under Sec.  
1026.37(a)(10)(i)(B), Sec.  1026.37(l)(3) requires that the creditor 
compute the total interest percentage in accordance with Sec.  
1026.17(c)(1) and its associated commentary.
    3. Negative amortization loans. For loans that have a negative 
amortization feature under Sec.  1026.37(a)(10)(ii)(A), Sec.  
1026.37(l)(3) requires that the creditor compute the total interest 
percentage using the scheduled payment, even if it is a negatively 
amortizing payment amount, until the consumer must begin making fully 
amortizing payments under the terms of the legal obligation.
    37(m) Other considerations.
    37(m)(1) Appraisal.
    1. Applicability. The disclosure required by Sec.  1026.37(m)(1) is 
only applicable to transactions subject to Sec.  1026.19(e) that are 
also subject either to 15 U.S.C. 1639h or 1691(e) or both, as 
implemented by this part or Regulation B, 12 CFR part 1002, 
respectively. Accordingly, if a transaction is not also subject to 
either or both of these provisions, as implemented by this part or 
Regulation B, respectively, the disclosure required by Sec.  
1026.37(m)(1) may be omitted from the Loan Estimate as described by 
comment 37-1 as illustrated by form H-24 of appendix H to this part. 
For transactions subject to section 1639h but not section 1691(e), the 
creditor may delete the word ``promptly'' from the disclosure required 
by Sec.  1026.37(m)(1)(ii).
    2. Consummation. Section 1026.37(m)(1) requires the creditor to 
disclose that it will provide a copy of any appraisal, even if the 
transaction is not consummated. On form H-24, the disclosure required 
by Sec.  1026.37(m)(1) states that the creditor will provide an 
appraisal, even if the ``loan does not close.'' Pursuant to Sec.  
1026.37(o)(3), the disclosure required by Sec.  1026.37(m)(1) is that 
illustrated by form H-24.
    37(m)(2) Assumption.
    1. Disclosure. Section 1026.37(m)(2) requires the creditor to 
disclose whether or not a third party may be allowed to assume the loan 
on its original terms if the property is sold or transferred by the

[[Page 80348]]

consumer. In many cases, the creditor cannot determine, at the time the 
disclosure is made, whether a loan may be assumable at a future date on 
its original terms. For example, the assumption clause commonly used in 
mortgages sold to the Federal National Mortgage Association and the 
Federal Home Loan Mortgage Corporation conditions an assumption on a 
variety of factors, such as the creditworthiness of the subsequent 
borrower, the potential for impairment of the creditor's security, and 
the execution of an assumption agreement by the subsequent borrower. If 
the creditor can determine that such assumption is not permitted, the 
creditor complies with Sec.  1026.37(m)(2) by disclosing that the loan 
is not assumable. In all other situations, including where assumption 
of a loan is permitted or is dependent on certain conditions or 
factors, or uncertainty exists as to the future assumability of a 
mortgage loan, the creditor complies with Sec.  1026.37(m)(2) by 
disclosing that, under certain conditions, the creditor may allow a 
third party to assume the loan on its original terms.
    2. Original terms. For purposes of Sec.  1026.37(m)(2), the 
imposition of an assumption fee is not a departure from the original 
terms of the obligation but a modification of the legal obligation, 
such as a change in the contract interest rate, represents a departure 
from the original terms.
    37(m)(3) Homeowner's insurance.
    1. Optional disclosure. Section 1026.37(m)(3) provides that 
creditors may, but are not required to, disclose a statement of whether 
homeowner's insurance is required on the property and whether the 
consumer may choose the insurance provider, labeled ``Homeowner's 
Insurance.''
    2. Relation to the finance charge. Section 1026.4(d)(2) describes 
the conditions under which a creditor may exclude premiums for 
homeowner's insurance from the finance charge. For transactions subject 
to Sec.  1026.19(e), a creditor satisfies Sec.  1026.4(d)(2)(i) by 
disclosing the statement described in Sec.  1026.37(m)(3).
    37(m)(4) Late payment.
    1. Definition. Section 1026.37(m)(4) requires a disclosure if 
charges are added to an individual delinquent installment by a creditor 
that otherwise considers the transaction ongoing on its original terms. 
Late payment charges do not include: (i) The right of acceleration; 
(ii) fees imposed for actual collection costs, such as repossession 
charges or attorney's fees; (iii) referral and extension charges; or 
(iv) the continued accrual of simple interest at the contract rate 
after the payment due date. However, an increase in the interest rate 
on account of a late payment by the consumer is a late payment charge 
to the extent of the increase.
    2. Applicability of State law. Many State laws authorize the 
calculation of late charges as either a percentage of the delinquent 
payment amount or a specified dollar amount, and permit the imposition 
of the lesser or greater of the two calculations. The language provided 
in the disclosure may reflect the requirements and alternatives allowed 
under State law.
    37(m)(6) Servicing.
    1. Creditor's intent. Section 1026.37(m)(6) requires the creditor 
to disclose whether it intends to service the loan directly or transfer 
servicing to another servicer after consummation. A creditor complies 
with Sec.  1026.37(m)(6) if the disclosure reflects the creditor's 
intent at the time the Loan Estimate is issued.
    37(m)(7) Liability after foreclosure.
    1. When statement is not permitted to be disclosed. The disclosure 
described by Sec.  1026.37(m)(7) is required under the condition 
specified by Sec.  1026.37(m)(7), specifically, if the purpose of the 
credit transaction is a refinance under Sec.  1026.37(a)(9)(ii). Under 
any other conditions, this statement is not permitted to appear in the 
Loan Estimate.
    37(n) Signature statement.
    1. Signature line optional. Whether a signature line is provided 
under Sec.  1026.37(n) is determined solely by the creditor. If a 
signature line is provided, however, the disclosure must include the 
statement required by Sec.  1026.37(n)(1).
    2. Multiple consumers. If there is more than one consumer who will 
be obligated in the transaction, the first consumer signs as the 
applicant and each additional consumer signs as a co-applicant. If 
there is not enough space under the heading ``Confirm Receipt'' to 
provide signature lines for every consumer in the transaction, the 
creditor may add additional signature pages, as needed, at the end of 
the form for the remaining consumers' signatures. However, the creditor 
is required to disclose the heading and statement required by Sec.  
1026.37(m)(7) on such additional pages.
    3. Consumer's name. The creditor may insert the consumer's name 
under the signature line, rather than using the designation 
``Applicant'' or ``Co-Applicant'' as illustrated in form H-24 of 
appendix H to this part, but is not required to do so pursuant to Sec.  
1026.37(n)(1).
    37(o) Form of disclosures.
    37(o)(1) General requirements.
    1. Clear and conspicuous; segregation. The clear and conspicuous 
standard requires that the disclosures required by Sec.  1026.37 be 
legible and in a readily understandable form. Section 1026.37(o)(1)(i) 
requires that the disclosures be grouped together and segregated from 
everything else. For example, creditors may not add additional pages in 
between the pages of the Loan Estimate, or attach to the Loan Estimate 
additional pages that are not provided for under Sec.  1026.37 after 
the last page of the Loan Estimate. As required by Sec.  
1026.37(o)(3)(i), the disclosures for any transaction that is a 
federally related mortgage loan under Regulation X, 12 CFR 1024.2, must 
be made using the standard form H-24 of appendix H to this part. 
Accordingly, use of that form constitutes compliance with the clear and 
conspicuous and segregation requirements of Sec.  1026.37(o). In 
addition, Sec.  1026.37(o)(1)(ii) requires creditors to disclose on the 
Loan Estimate only the information required by Sec.  1026.37(a) through 
(n), except as otherwise provided by Sec.  1026.37(o), and in the same 
order, and positioned relative to the master headings, headings, 
subheadings, labels, and similar designations in the same manner, as 
shown in form H-24, set forth in appendix H to this part. For example, 
creditors may not use form H-24, but include in the Loan Terms table 
under the subheading ``Can this amount increase after closing?'' 
information that is not required by Sec.  1026.37(b)(6).
    2. Balloon payment financing with leasing characteristics. In 
certain credit sale or loan transactions, a consumer may reduce the 
dollar amount of the payments to be made during the transaction by 
agreeing to make, at the end of the loan term, a large final payment 
based on the expected residual value of the property. The consumer may 
have a number of options with respect to the final payment, including, 
among other things, retaining the property and making the final 
payment, refinancing the final payment, or transferring the property to 
the creditor in lieu of the final payment. Such transactions may have 
some of the characteristics of lease transactions subject to Regulation 
M (12 CFR part 1013), but are considered credit transactions where the 
consumer assumes the indicia of ownership, including the risks, 
burdens, and benefits of ownership, upon consummation. These 
transactions are governed by the disclosure requirements of this part 
instead of Regulation M. Under Sec.  1026.37(o)(1)(ii), creditors may

[[Page 80349]]

not include any additional information with the disclosures required by 
Sec.  1026.37, except as provided in Sec.  1026.37(o)(5). Thus, the 
disclosures must show the large final payment as a balloon payment in 
the projected payments table required by Sec.  1026.37(c) and should 
not, for example, reflect the other options available to the consumer 
at maturity.
    37(o)(2) Headings and labels.
    1. Estimated amounts. Section 1026.37(o)(2) incorporates the 
``estimated'' designations reflected on form H-24 of appendix H to this 
part into the disclosure requirements of Sec.  1026.37, even if the 
relevant provision of Sec.  1026.37 does not expressly require or 
permit disclosure of the word ``estimate.'' Where form H-24 uses the 
abbreviation ``est.'' in place of the word ``estimated,'' Sec.  
1026.37(o)(2) also incorporates that designation into its requirement. 
For example, Sec.  1026.37(c)(2)(iv) requires disclosure of the total 
periodic payment labeled ``Total Monthly Payment,'' but the label on 
form H-24 contains the designation ``Estimated'' and thus, the label 
required by Sec.  1026.37(c)(2)(iv) must contain the designation 
``Estimated.'' Although many of the disclosures required by Sec.  
1026.38 cross-reference their counterparts in Sec.  1026.37, Sec.  
1026.38(t) incorporates the ``estimated'' designations reflected on 
form H-25, not form H-24.
    37(o)(3) Form.
    1. Non-federally related mortgage loans. For a non-federally 
related mortgage loan, the creditor is not required to use form H-24 of 
appendix H to this part, although its use as a model form for such 
transactions, if properly completed with accurate content, constitutes 
compliance with the clear and conspicuous and segregation requirements 
of Sec.  1026.37(o)(1)(i). Even when the creditor elects not to use the 
model form, Sec.  1026.37(o)(1) requires that the disclosures be 
grouped together and segregated from everything else; contain only the 
information required by Sec.  1026.37(a) through (n); and be provided 
in the same order as they occur in form H-24, using the same relative 
positions of the headings, labels, and similar designations as shown in 
the form. In addition, Sec.  1026.37(o)(2) requires that the creditor 
include the designation of ``estimated'' for all headings, subheading, 
labels, and similar designations required by Sec.  1026.37 for which 
form H-24 contains the ``estimated'' designation in such heading, 
subheading, label, or similar designation. The disclosures required by 
Sec.  1026.37 comply with the requirement to be in a format 
substantially similar to form H-24 when provided on letter size (8.5'' 
x 11'') paper.
    37(o)(4) Rounding.
    1. Rounding. Consistent with Sec.  1026.2(b)(4), except as 
otherwise provided in Sec.  1026.37(o)(4), any amount required to be 
disclosed by Sec.  1026.37 is not permitted to be rounded and is 
disclosed using decimal places where applicable, unless otherwise 
provided.
    2. Calculations. If a dollar amount that is required to be rounded 
by Sec.  1026.37(o)(4)(i) on the Loan Estimate is a total of one or 
more dollar amounts that are not required or permitted to be rounded, 
the total amount must be rounded consistent with Sec.  
1026.37(o)(4)(i), but such component amounts used in the calculation 
must use such unrounded numbers. In addition, if any such unrounded 
component amount is required to be disclosed under Sec.  1026.37, 
consistent with Sec.  1026.2(b)(4), it should be disclosed as an 
unrounded number. If an amount that is required to be rounded by Sec.  
1026.37(o)(4)(i) on the Loan Estimate is a total of one or more 
components that are also required to be rounded by Sec.  
1026.37(o)(4)(i), the total amount must be calculated using such 
rounded amounts. For example, the subtotals required to be disclosed by 
Sec.  1026.37(f)(1), (2), and (3) are calculated using the rounded 
amounts disclosed under those subsections. See also comment 
37(o)(4)(i)(C)-1. However, the amounts required to be disclosed by 
Sec.  1026.37(l) reference actual amounts for their components, rather 
than other amounts disclosed under Sec.  1026.37 and rounded pursuant 
to Sec.  1026.37(o)(4)(i), and thus, they are calculated using 
unrounded numbers.
    37(o)(4)(i) Nearest dollar.
    Paragraph 37(o)(4)(i)(A).
    1. Rounding of dollar amounts. Section 1026.37(o)(4)(i)(A) requires 
that certain dollar amounts be rounded to the nearest whole dollar. For 
example, pursuant to Sec.  1026.37(o)(4)(i)(A), periodic mortgage 
insurance payments of $164.50 are required to be disclosed under Sec.  
1026.37(c)(2)(ii) as $165. However, if the periodic mortgage insurance 
payment equaled $164.49, the creditor would disclose $164.
    Paragraph 37(o)(4)(i)(B).
    1. Rounding of loan amount. Section 1026.37(o)(4)(i)(B) requires 
the loan amount to be disclosed truncated at the decimal place if the 
loan amount is a whole number. For example, if Sec.  1026.37(b)(1) 
requires disclosure of a loan amount of $481,516.23, the creditor 
discloses the amount as $481,516.23. However, if the loan amount 
required to be disclosed were $481,516.00, the creditor would disclose 
$481,516.
    Paragraph 37(o)(4)(i)(C).
    1. Rounding of the total monthly payment. Section 
1026.37(o)(4)(i)(C) requires the total monthly payment amount disclosed 
under Sec.  1026.37(c)(2)(iv) to be rounded if any of its components 
are rounded. For example, if the total monthly payment disclosed under 
Sec.  1026.37(c)(2)(iv) is composed of a $2,000.49 periodic principal 
and interest payment required to be disclosed by Sec.  1026.37(c)(2)(i) 
and a $164.49 periodic mortgage insurance payment required to be 
disclosed by Sec.  1026.37(c)(2)(ii), the creditor would calculate the 
total monthly payment by adding the exact periodic principal and 
interest payment of $2,000.49 and the rounded periodic mortgage 
insurance payment of $164, round the total, and disclose $2,164.
    37(o)(4)(ii) Percentages.
    1. Decimal places. Section 1026.37(o)(4)(ii) requires the 
percentage amounts disclosed to be truncated at the decimal point, if 
the amount is a whole number. For example, a 7.005 percent annual 
percentage rate is disclosed in compliance with Sec.  1026.37(o)(4)(ii) 
as ``7.005%,'' but a 7.000 percent annual percentage rate would be 
disclosed as ``7%.'' If any percentage amounts required to be disclosed 
contain more than three decimal places, they shall be rounded to three 
decimal places.
    37(o)(5) Exceptions.
    1. Permissible changes. The changes required or permitted by Sec.  
1026.37(o)(5) are permitted for federally related mortgage loans for 
which the use of form H-24 is required under Sec.  1026.37(o)(3). For 
non-federally related mortgage loans, the changes required or permitted 
by Sec.  1026.37(o)(5) do not affect the substance, clarity, or 
meaningful sequence of the disclosure and therefore, are permissible. 
Any changes to the disclosure not specified in Sec.  1026.37(o)(5) or 
not permitted by other provisions of Sec.  1026.37 are not permissible 
for federally related mortgage loans. Creditors in non-federally 
related mortgage loans making any changes that affect the substance, 
clarity, or meaningful sequence of the disclosure will lose their 
protection from civil liability under TILA section 130.
    2. Manual completion. Section 1026.37(o) does not require the 
creditor to use a computer, typewriter, or other word processor to 
complete the disclosure form. The information and amounts required to 
be disclosed by Sec.  1026.37 on form H-24 of appendix H to this part 
may be filled in by hand printing or using any other method,

[[Page 80350]]

provided the information is clear and legible and complies with the 
formatting required by form H-24, including replicating bold font where 
required.
    3. Contact information. If a transaction involves more than one 
creditor or mortgage broker, the space provided on form H-24 of 
appendix H to this part for the contact information required by Sec.  
1026.37(m) may be altered to add additional labels to accommodate the 
additional information of such parties, provided that the information 
required by Sec.  1026.37(l), (m), and (n) are disclosed on the same 
page as illustrated by form H-24. If the space provided on form H-24 of 
appendix H to this part does not allow for the disclosure of such 
contact and other information on the same page, an additional page may 
be added to provide the required contact information with an 
appropriate reference to the additional page.
    4. Unit-period. Section 1026.37(o)(5)(i) provides that wherever 
form H-24 or Sec.  1026.37 uses ``monthly'' to describe the frequency 
of any payments or uses ``month'' to describe the applicable unit-
period, the creditor is required to substitute the appropriate term to 
reflect the fact that the transaction's terms provide for other than 
monthly periodic payments, such as bi-weekly or quarterly payments. For 
purposes of Sec.  1026.37, the term ``unit-period'' has the same 
meaning as in appendix J to Regulation Z.
    5. Additional page. Information required or permitted to be 
disclosed by Sec.  1026.37 on a separate page should be formatted 
similarly to form H-24 of appendix H to this part, so as not to affect 
the substance, clarity, or meaningful sequence of the disclosure. In 
addition, information provided on additional pages should be 
consolidated on as few pages as necessary to not affect the substance, 
clarity, or meaningful sequence of the disclosure.
    6. Translation. Section 1026.37(o)(5)(ii) permits the translation 
of form H-24 into languages other than English, consistent with Sec.  
1026.27. Pursuant to Sec.  1026.37(o)(5)(ii) creditors may modify form 
H-24 to the extent that translation prevents the headings, labels, 
designations, and required disclosure items under Sec.  1026.37 from 
fitting in the space provided on form H-24. For example, if the 
translation of a required label does not fit within the line provided 
for such label in form H-24, the label may be disclosed over two lines. 
See form H-28 of appendix H to this part for Spanish translations of 
form H-24.

Section 1026.38--Content of Disclosures for Certain Mortgage 
Transactions (Closing Disclosure)

    1. Disclosures not applicable. Where a disclosure is not applicable 
to a particular transaction, form H-25 of appendix H to this part may 
not be modified to state ``not applicable'' or ``N/A.'' The portion of 
the form pertaining to the inapplicable disclosure may be left blank 
unless otherwise provided by Sec.  1026.38. For example, the disclosure 
required by Sec.  1026.38(r) of the consumer's or seller's real estate 
broker may be left blank for a transaction that does not involve real 
estate brokers, such as a refinance or home equity loan. As provided in 
Sec.  1026.38(m) and (n), however, the adjustable payment and 
adjustable interest rate tables required by those paragraphs may be 
included only if those disclosures are applicable to the transaction 
and otherwise must be excluded.
    2. Format. See Sec.  1026.38(t) and its commentary for guidance on 
the proper format to be used in making the disclosures, as well as 
required and permissible modifications.
    3. Good faith requirement. The disclosures required by Sec.  
1026.38 are required to reflect the actual terms of the legal 
obligation between the parties, and the actual costs associated with 
the settlement of the transaction. Creditors and settlement agents may 
estimate disclosures as provided pursuant to Sec.  1026.19(f)(1)(i) 
when the actual term or cost is unknown at the time the disclosures are 
made. See Sec. Sec.  1026.17(c)(2) and 1026.19(f)(1)(i) and comments 
17(c)(2)(i)-1 and -2, and 19(f)(1)(i)-2.
    38(a) General information.
    38(a)(3) Closing information.
    38(a)(3)(i) Date issued.
    1. Applicable date. For general guidance on identifying the date 
issued for the Closing Disclosure, see the commentary to Sec.  
1026.37(a)(4).
    38(a)(3)(iv) Settlement agent.
    1. Entity name. Section 1026.38(a)(3)(iv) requires the name of the 
entity that employs the settlement agent. The name of the individual 
conducting the closing is not required.
    38(a)(3)(v) File number.
    1. Alpha-numeric characters. The file number required by Sec.  
1026.38(a)(3)(v) may contain any alpha-numeric characters and need not 
be limited to numbers.
    38(a)(3)(vi) Property.
    1. Alternative property. For guidance on disclosing the location of 
a property for which an address is unavailable, see the commentary to 
Sec.  1026.37(a)(6). Where personal property also secures the credit 
transaction, a description of that property may be disclosed, at the 
creditor's option, pursuant to Sec.  1026.38(a)(3)(vi). If the form 
does not provide enough space to disclose a description of personal 
property under Sec.  1026.38(a)(3)(vi), at the creditor's option an 
additional page may be used and appended to the end of the form 
provided that the creditor complies with the requirements of Sec.  
1026.38(t)(3).
    38(a)(3)(vii) Sale price.
    1. No seller. In transactions where there is no seller, such as in 
a refinancing, Sec.  1026.38(a)(3)(vii)(B) requires the creditor to 
disclose the appraised value of the property. To comply with this 
requirement, the creditor discloses the value determined by the 
appraisal or valuation used to determine approval of the credit 
transaction. If the creditor has not obtained an appraisal, the 
creditor may disclose the estimated value of the property. Where an 
estimate is disclosed, rather than an appraisal, the label for the 
disclosure is changed to ``Estimated Prop. Value.'' The creditor may 
use the estimate provided by the consumer at application, or if it has 
performed its own estimate of the property value by the time the 
disclosure is provided to the consumer, disclose that estimate provided 
that it was the estimate the creditor used to determine approval of the 
credit transaction.
    2. Personal property. For guidance on how to disclose the sale 
price of a transaction that includes personal property under Sec.  
1026.38(a)(3)(vii), see comment 37(a)(7)-2.
    38(a)(4) Transaction information.
    1. Multiple borrowers and sellers. The name and address of each 
consumer and seller in the transaction must be provided under the 
heading ``Transaction Information.'' If the form does not provide 
enough space to include the required information for each consumer and 
seller, an additional page may be used and appended to the end of the 
form provided that the creditor complies with the requirements of Sec.  
1026.38(t)(3). For additional guidance on disclosing multiple 
borrowers, see comment 37(a)(5)-1.
    2. No seller. In transactions where there is no seller, such as in 
a refinancing or home equity loan, the disclosure under Sec.  
1026.38(a)(4)(ii) may be left blank. See also Sec.  
1026.38(t)(5)(vii)(A).
    3. Multiple creditors. See comment 37(a)(3)-1 regarding 
identification requirements for multiple creditors.
    38(a)(5) Loan information.

[[Page 80351]]

    1. General. See commentary to Sec.  1026.37(a)(8) through (12) for 
guidance on the general requirements and definitions applicable to 
Sec.  1026.38(a)(5)(i) through (v).
    38(a)(5)(v) Loan identification number.
    1. Same identification number as Loan Estimate. The loan 
identification number disclosed pursuant to Sec.  1026.38(a)(5)(v) must 
be one that enables the creditor, consumer, and other parties to 
identify the transaction as the same transaction disclosed on the Loan 
Estimate. The loan identification number may contain any alpha-numeric 
characters. If a creditor uses the same loan identification number on 
several revised Loan Estimates to the consumer, but adds after such 
number a hyphen and a number to denote the number of revised Loan 
Estimates in sequence, the creditor must disclose the loan 
identification number before such hyphen on the Closing Disclosure to 
identify the transaction as the same for which the initial and revised 
Loan Estimates were provided.
    38(b) Loan terms.
    1. Guidance. See the commentary to Sec.  1026.37(b) for guidance on 
the content of the disclosures required by Sec.  1026.38(b).
    38(c) Projected payments.
    1. In general. For guidance on the disclosure of the projected 
payments table, see Sec.  1026.37(c) and its commentary.
    38(c)(1) Projected payments or range of payments.
    1. Escrow account analysis. The amount of estimated escrow payments 
disclosed on the Closing Disclosure is accurate if it differs from the 
estimated escrow payment disclosed on the Loan Estimate because of the 
escrow account analysis described in Regulation X, 12 CFR 1024.17.
    38(d) Costs at closing.
    38(d)(2) Alternative table for transactions without a seller.
    1. Required use. The disclosure of the cash to close table in Sec.  
1026.38(d)(2) may only be provided by a creditor in a transaction 
without a seller. The use of this alternative table for transactions 
without a seller is required if the Loan Estimate provided to the 
consumer disclosed the optional alternative table pursuant to Sec.  
1026.37(d)(2), and must be used in conjunction with the use of the 
alternative calculating cash to close disclosure under Sec.  
1026.38(e).
    2. Method of indication. The indication of whether the cash is 
either due from or payable to the consumer is made by the use of check 
boxes as shown in form H-25(J) of appendix H to this part. Forms H-
25(E) and H-25(G) of appendix H to this part contain examples of the 
use of these checkboxes.
    38(e) Alternative calculating cash to close table for transactions 
without a seller.
    1. Required use. The disclosure of the table in Sec.  1026.38(e) 
may only be provided by a creditor in a transaction without a seller. 
The use of this alternative calculating cash to close table for 
transactions without a seller is required for transactions in which the 
Loan Estimate provided to the consumer disclosed the optional 
alternative table pursuant to Sec.  1026.37(h)(2), and must be used in 
conjunction with the alternative disclosure under Sec.  1026.38(d)(2).
    2. More prominent disclosures. Section 1026.38(e)(1)(iii), 
(2)(iii), (3)(iii), and (4)(iii) requires that statements are given as 
to whether the ``Final'' amount disclosed under each subparagraph (ii) 
of Sec.  1026.38(e)(1) through (e)(4) is different than or equal to, 
and in some cases whether the amount is greater than or less than, the 
corresponding ``Loan Estimate'' amount disclosed under each 
subparagraph (i) of Sec.  1026.38(e)(1) through (e)(4). These 
statements are more prominent than the other disclosures under Sec.  
1026.38(e). The statement of whether the estimated and final amounts 
are different, stated as a ``Yes'' or ``No'' in capital letters and in 
boldface, under the subheading ``Did this change?,'' as shown on forms 
H-25(E) and H-25(G) of appendix H to this part, complies with the 
requirement to state whether the amounts are different more 
prominently. Such statement of ``No'' satisfies the requirement to 
state that the estimated and final amounts are equal, and these 
sections do not provide for any narrative text to be included with such 
statement. The prominence requirement also requires that, in the event 
an increase or decrease in costs has occurred, certain words within the 
narrative text to be included under the subheading ``Did this change?'' 
for a ``Yes'' answer are displayed more prominently than other 
disclosures. For example, under Sec.  1026.38(e)(2)(iii)(A), this more 
prominent statement could take the form of the phrases ``Total Loan 
Costs (D)'' and ``Total Other Costs (I)'' being shown in boldface, as 
shown on forms H-25(E) and H-25(G) of appendix H to this part. See 
comment 38(e)-4 for further guidance regarding the prominence of such 
statements.
    3. Statements of differences. The dollar amounts disclosed under 
Sec.  1026.38 generally are shown to two decimal places unless 
otherwise required. See comment 38(t)(4)-1. As a result, any ``Final'' 
amount that is disclosed in the alternative ``Calculating Cash to 
Close'' table under Sec.  1026.38(e) is shown to two decimal places 
unless otherwise required. Pursuant to Sec.  1026.38(t)(4)(i)(C), 
however, any ``Loan Estimate'' amount that is disclosed in the 
alternative ``Calculating Cash to Close'' table under Sec.  1026.38(e) 
is shown to the nearest dollar amount, and thus matches the 
corresponding estimated amount disclosed on the Loan Estimate's 
``Calculating Cash to Close'' table under Sec.  1026.37(h), which is 
shown to the nearest whole dollar pursuant to Sec.  
1026.37(o)(4)(i)(A). For this reason, a ``Final'' amount shown to two 
decimal places could be a larger number than its corresponding 
``Estimate'' amount shown to the nearest whole dollar, when, in fact, 
the apparent increase is due solely to rounding. Therefore, for 
purposes of Sec.  1026.38(e)(1)(iii), (2)(iii), (3)(iii), and (4)(iii), 
each statement of a change between the amounts disclosed on the Loan 
Estimate and the Closing Disclosure is based on the actual, non-rounded 
estimate that would have been disclosed on the Loan Estimate under 
Sec.  1026.37(h) if it had been shown to two decimal places rather than 
a whole dollar amount. For example, if the ``Loan Estimate'' amount of 
``Total Closing Costs'' disclosed under Sec.  1026.38(e)(2)(i) is 
$12,500, and the ``Final'' amount of ``Total Closing Costs'' disclosed 
under Sec.  1026.38(e)(2)(ii) is $12,500.35, then even though the table 
would appear to show a $0.35 increase in ``Total Closing Costs,'' no 
statement of such increase is given under Sec.  1026.38(e)(2)(iii) so 
long as the actual, non-rounded estimate (i.e., the estimated amount of 
``Total Closing Costs'' that would have been shown on the Loan Estimate 
to two decimal places) is equal to $12,500.35.
    4. Statements that the consumer should see details. The provisions 
of Sec.  1026.38(e)(2)(iii)(A) and (e)(4)(iii)(A) each require a 
statement that the consumer should see certain details of the closing 
costs disclosed under Sec.  1026.38(f), (g), or (t). Forms H-25(E) and 
H-25(G) of appendix H to this part contain examples of these 
statements. For example, Sec.  1026.38(e)(4)(iii)(A) requires a 
statement that the consumer should see the details disclosed pursuant 
to Sec.  1026.38(t)(5)(vii)(B), and, as shown on forms H-25(E) and H-
25(G) of appendix H to this part, the statement, ``See Payoffs and 
Payments,'' in which the words ``Payoffs and Payments'' are in 
boldface, complies with this provision.
    5. Statement of increase or decrease. Section 1026.38(e)(1)(iii)(A) 
requires a statement of whether the loan amount increased or decreased. 
A creditor

[[Page 80352]]

complies with this requirement by disclosing, ``This amount increased'' 
or ``This amount decreased'' with the words ``increase'' and 
``decrease'' in boldface font.
    38(e)(1) Loan amount.
    Paragraph 38(e)(1)(iii)(A).
    1. Statements of increases or decreases. Section 
1026.38(e)(1)(iii)(A) requires a statement of whether the amount 
increased or decreased from the estimated amount. For Sec.  
1026.38(e)(1)(iii)(A), the statement, ``You increased this amount,'' in 
which the word ``increased'' is in boldface font and is replaced with 
the word ``decreased'' as applicable, complies with this provision.
    38(e)(2) Total closing costs.
    Paragraph 38(e)(2)(i).
    1. Reference to disclosure of total closing costs. Under Sec.  
1026.38(e)(2)(i), the amount disclosed is labeled ``Total Closing 
Costs,'' and such label is accompanied by a reference to the disclosure 
of ``Total Closing Costs'' under Sec.  1026.38(h)(1). This reference 
may take the form, for example, of a cross-reference in parenthesis to 
the row on the table disclosed under Sec.  1026.38(h) that includes the 
itemized amount for ``Total Closing Costs,'' as shown on form H-25 of 
appendix H to this part.
    Paragraph 38(e)(2)(iii)(A).
    1. Statements and references regarding the total loan costs and 
total other costs. Under Sec.  1026.38(e)(2)(iii)(A), the statements 
under the subheading ``Did this change?'' that the consumer should see 
the total loan costs and total other costs subtotals disclosed on the 
Closing Disclosure under Sec.  1026.38(f)(4) and (g)(5) are made only 
if and to the extent the difference in the ``Total Closing Costs'' is 
attributable to differences in itemized charges that are included in 
either or both of such subtotals.
    i. For example, if an increase in the ``Total Closing Costs'' is 
attributable only to an increase in the appraisal fee (which is an 
itemized charge on the Closing Disclosure under the subheading 
``Services Borrower Did Not Shop For,'' itself under the heading ``Loan 
Costs''), then a statement is given under the subheading ``Did this 
change?'' that the consumer should see the total loan costs subtotal 
disclosed on the Closing Disclosure under Sec.  1026.38(f)(4). If the 
increase in ``Total Closing Costs'' is attributable only to an increase 
in recording fees (which is an itemized charge on the Closing 
Disclosure under the subheading ``Taxes and Other Government Fees,'' 
itself under the heading ``Other Costs''), then a statement is given 
under the subheading ``Did this change?'' that the consumer should see 
the total other costs subtotal disclosed on the Closing Disclosure 
under Sec.  1026.38(g)(5). If, however, the increase is attributable in 
part to an increase in the appraisal fee and in part to an increase in 
the recording fee, then a statement is given under the subheading ``Did 
this change?'' that the consumer should see the total loan costs and 
total other costs subtotals disclosed on the Closing Disclosure under 
Sec.  1026.38(f)(4) and (g)(5).
    ii. For guidance regarding the requirement that this statement be 
accompanied by a reference to the disclosures of the total loan costs 
and total other costs under Sec.  1026.38(f)(4) and (g)(5), see comment 
38(e)(2)(i)-1. For an example of such reference, see form H-25 of 
appendix H to this part.
    2. Disclosure of excess amounts above limitations on increases in 
closing costs.
    i. Because certain closing costs, individually, are subject to the 
limitations on increases in closing costs under Sec.  1026.19(e)(3)(i) 
(e.g., fees paid to the creditor, transfer taxes, fees paid to an 
affiliate of the creditor), while other closing costs are collectively 
subject to the limitations on increases in closing costs under Sec.  
1026.19(e)(3)(ii) (e.g., recording fees, fees paid to an unaffiliated 
third party identified by the creditor if the creditor permitted the 
consumer to shop for the service provider), Sec.  1026.38(e)(2)(iii)(A) 
requires the creditor or closing agent to calculate subtotals for each 
type of excess amount, and then add such subtotals together to yield 
the dollar amount to be disclosed in the table. See commentary to Sec.  
1026.19(e)(3) for additional guidance on calculating excess amounts 
above the limitations on increases in closing costs under Sec.  
1026.19(e)(3).
    ii. Under Sec.  1026.38(e)(2)(iii)(A), calculation of the excess 
amounts above the limitations on increases in closing costs takes into 
account that the itemized, estimated closing costs disclosed on the 
Loan Estimate will not result in charges to the consumer if the service 
is not actually provided at or before consummation. For example, if the 
Loan Estimate included under ``Services You Cannot Shop For'' a $30 
charge for a ``title courier fee,'' but the title company elects to 
hand-deliver the title documents package to the creditor at no charge, 
the $30 fee is not factored into the calculation of the ``Total Closing 
Costs'' that are subject to the limitations on increases in closing 
costs. However, if the title courier fee was assessed, but at only $15, 
the charge is factored into the calculation because the third party 
service was actually provided, albeit at a lower amount than estimated. 
For an example, see form H-25 of appendix H to this part.
    iii. Under Sec.  1026.38(e)(2)(iii)(A), calculation of the excess 
amounts above the limitations on increases in closing costs takes into 
account that certain itemized charges listed on the Loan Estimate under 
the subheading ``Services You Can Shop For'' may be subject to 
different limitations depending on the circumstances. Such a charge 
would be subject to the limitations under Sec.  1026.19(e)(3)(i) if the 
consumer decided to use a provider affiliated with the creditor. 
However, the same charge would instead be subject to the limitations 
under Sec.  1026.19(e)(3)(ii) if the consumer selected a third party 
service provider unaffiliated with but identified by the creditor, and 
the creditor permitted the consumer to shop for the service provider. 
See commentary to Sec.  1026.19(e)(3) for additional guidance on 
calculating excess amounts above the limitations on increases in 
closing costs under Sec.  1026.19(e)(3).
    38(e)(3) Closing costs paid before closing.
    Paragraph 38(e)(3)(i).
    1. Estimate of closing costs paid before closing. Under Sec.  
1026.38(e)(3)(i), the ``Loan Estimate'' amount for ``Closing Costs 
Subtotal Paid Before Closing'' is always shown as ``$0,'' because an 
estimate of such amount is not disclosed on the Loan Estimate.
    Paragraph 38(e)(3)(iii)(B).
    1. Equal amount. Under Sec.  1026.38(e)(3)(iii)(B), the creditor or 
settlement agent gives a statement that the ``Final'' amount disclosed 
under Sec.  1026.38(e)(3)(ii) is equal to the ``Loan Estimate'' amount 
disclosed under Sec.  1026.38(e)(3)(i), only if the ``Final'' amount is 
$0, because the ``Loan Estimate'' amount is always disclosed as $0 
pursuant to Sec.  1026.38(e)(3)(i). See comment 38(e)(3)(i)-1.
    38(f) Closing cost details; loan costs.
    1. Lender-paid charges and specific lender credits. Charges that 
are designated as paid by others under Sec.  1026.38(f) and (g), below, 
may include the letter ``L'' in parentheses, i.e. ``(L),'' to the left 
of the amount in the column to designate those charges paid by the 
creditor pursuant to the legal obligation between the creditor and 
consumer.
    38(f)(1) Origination charges.
    1. Guidance in other comments. For a description of origination 
charges and discount points, see comments 37(f)(1)-1, -2, and -3.
    2. Loan originator compensation. All compensation paid to a loan 
originator, as defined by Sec.  1026.36(a)(1), that is a third-party 
associated with the

[[Page 80353]]

transaction, regardless of the party that pays the compensation, must 
be disclosed pursuant to Sec.  1026.38(f)(1). Compensation from the 
consumer to a third-party loan originator is designated as borrower-
paid at or before closing, as applicable, on the Closing Disclosure. 
Compensation from the creditor to a third-party loan originator is 
designated as paid by others on the Closing Disclosure. Compensation to 
a third-party loan originator from both the consumer and the creditor 
in the transaction is prohibited under Sec.  1026.36(d)(2).
    3. Calculating compensation to a loan originator from the creditor. 
The amount disclosed as paid from the creditor to a third-party loan 
originator under Sec.  1026.38(f)(1) is the dollar value of salaries, 
commissions, and any financial or similar compensation provided to a 
third-party loan originator by the creditor that are considered to be 
points and fees under Sec.  1026.32(b)(1)(ii). For additional guidance 
and examples on the calculation of compensation paid to the third-party 
loan originator from the creditor, see comments 32(b)(1)(ii)-1, --2, -
3, and -4.
    38(f)(2) Services borrower did not shop for.
    1. Guidance in other comments. For examples of services, costs, and 
their descriptions disclosed under Sec.  1026.38(f)(2), see comments 
37(f)(2)-1, -2, -3, and -4.
    38(f)(3) Services borrower did shop for.
    1. Provider on written list. Items that were disclosed pursuant to 
Sec.  1026.37(f)(3) cannot be disclosed under Sec.  1026.38(f)(3) when 
the consumer selected a provider contained on the written list provided 
under Sec.  1026.19(e)(1)(vi)(C). Instead, such costs are disclosed 
pursuant to Sec.  1026.38(f)(2).
    38(f)(5) Subtotal of loan costs.
    1. Charges subtotaled. The only charges that are loan costs that 
are subtotaled pursuant to Sec.  1026.38(f)(5) are those costs 
designated borrower-paid at or before closing. Charges which are loan 
costs designated seller-paid at or before closing, or paid by others, 
are not subtotaled pursuant to Sec.  1026.38(f)(5). The subtotal of 
charges that are seller-paid at or before closing or paid by others is 
disclosed under Sec.  1026.38(h)(2).
    38(g) Closing costs details; other costs.
    38(g)(1) Taxes and other government fees.
    1. Guidance. For additional guidance on taxes and other government 
fees, see comments 37(g)(1)-1, -2, -3, and -4.
    2. Transfer taxes--itemization. The creditor may itemize the 
transfer taxes paid on as many lines as necessary pursuant to Sec.  
1026.38(g)(1) in order to disclose all of the transfer taxes paid as 
part of the transaction. The taxes should be allocated in the 
applicable columns as borrower-paid at or before closing, seller-paid 
at or before closing, or paid by others, as provided by State or local 
law, the terms of the legal obligation, or the real estate purchase 
contract.
    38(g)(2) Prepaids.
    1. Guidance. For additional guidance on prepaids, see comments 
37(g)(2)-1 and -2.
    2. Negative prepaid interest. The prepaid interest amount is 
disclosed as a negative number if the calculation of prepaid interest 
results in a negative number.
    3. No prepaid interest. If interest is not collected for a portion 
of a month or other period between closing and the date from which 
interest will be collected with the first monthly payment, then $0 must 
be disclosed under Sec.  1026.38(g)(2).
    4. Interest rate for prepaid interest. The interest rate disclosed 
pursuant to Sec.  1026.38(g)(2) is the interest rate disclosed under 
Sec.  1026.38(b), as required by Sec.  1026.37(b)(2).
    5. Property taxes. For a description of items that constitute 
property taxes, see comment 43(b)(8)-2.
    38(g)(3) Initial escrow payment at closing.
    1. Initial escrow account itemization. The creditor must state the 
amount that it will require the consumer to place into a reserve or 
escrow account at consummation to be applied to recurring charges for 
property taxes, homeowner's and similar insurance, mortgage insurance, 
homeowner's association dues, condominium dues, and other periodic 
charges. Each periodic charge to be included in the escrow or reserve 
account must be itemized under the ``Initial Escrow Payment at 
Closing'' subheading, with a relevant label, monthly payment amount, 
and number of months collected at closing.
    2. Aggregate accounting. The method used to determine the aggregate 
adjustment for the purposes of establishing the escrow account is 
described in 12 CFR 1024.17(d)(2). Examples of this calculation 
methodology can be found in appendix E to 12 CFR part 1024. The 
aggregate adjustment, as illustrated by form H-25 of appendix H to this 
part, is disclosed as the last listed item in the amounts disclosed 
under Sec.  1026.38(g)(3).
    3. Escrowed tax payments for different timeframes. Payments for 
property taxes that are paid at different time periods can be itemized 
separately when done in accordance with 12 CFR 1024.17. For example, a 
general property tax covering a fiscal year from January 1 to December 
31 can be listed as a property tax under Sec.  1026.38(g)(3) and a 
separate property tax to fund schools that cover a fiscal year from 
November 1 to October 31 can be added as a separate itemized amount 
under Sec.  1026.38(g)(3).
    4. Property taxes. For a description of items that constitute 
property taxes, see comment 43(b)(8)-2.
    5. Definition of escrow account. For a description of the amounts 
included in the initial escrow account disclosure under Sec.  
1026.38(g)(3), see the definition of ``escrow account'' in 12 CFR 
1024.17(b).
    38(g)(4) Other.
    1. Costs disclosed. The costs disclosed under Sec.  1026.38(g)(4) 
include all real estate brokerage fees, homeowner's or condominium 
association charges paid at consummation, home warranties, inspection 
fees, and other fees that are part of the real estate closing but not 
required by the creditor or not disclosed elsewhere under Sec.  
1026.38.
    2. Owner's title insurance premium. In a jurisdiction where 
simultaneous issuance title insurance rates are permitted, any owner's 
title insurance premium disclosed under Sec.  1026.38(g)(4) is 
calculated by using the full owner's title insurance premium, adding 
any simultaneous issuance premium for issuance of lender's coverage, 
and then deducting the full premium for lender's coverage disclosed 
under Sec.  1026.38(f)(2) or (f)(3). Section 1026.38(g)(4)(i) requires 
that the disclosure of the cost of the premium for an owner's title 
insurance policy include ``Title--'' at the beginning of the label. In 
addition, Sec.  1026.38(g)(4)(ii) requires that the disclosure of the 
cost of the premium for an owner's title insurance policy include the 
parenthetical ``(optional)'' at the end of the label when designated 
borrower-paid at or before closing.
    3. Guidance. For additional guidance on the use of the term 
``(optional)'' under Sec.  1026.38(g)(4)(ii), see comment 37(g)(4)-3.
    4. Real estate commissions. The amount of real estate commissions 
pursuant to Sec.  1026.38(g)(4) must be the total amount paid to any 
real estate brokerage as a commission, regardless of the identity of 
the party holding any earnest money deposit. Additional charges made by 
real estate brokerages or agents to the seller or consumer are itemized 
separately as additional items for services rendered, with a 
description of the service and an identification of

[[Page 80354]]

the person ultimately receiving the payment.
    38(g)(6) Subtotal of costs.
    1. Costs subtotaled. The only costs that are subtotaled pursuant to 
Sec.  1026.38(g)(6) are those costs that are designated borrower-paid 
at or before closing. Costs that are designated seller-paid at or 
before closing, or paid by others, are not subtotaled pursuant to Sec.  
1026.38(g)(6). The subtotal of charges that are designated seller-paid 
at or before closing or paid by others is disclosed under Sec.  
1026.38(h)(2).
    38(h) Closing cost totals.
    Paragraph 38(h)(2).
    1. Charges paid by seller and by others subtotaled. All loan costs 
and other costs that are designated seller-paid at or before closing, 
or paid by others, are also totaled under Sec.  1026.38(h)(2).
    Paragraph 38(h)(3).
    1. General lender credits. When the consumer receives a generalized 
credit from the creditor for closing costs, the amount of the credit 
must be disclosed under Sec.  1026.38(h)(3). However, if such credit is 
attributable to a specific loan cost or other cost listed in the 
Closing Cost Details tables, pursuant to Sec.  1026.38(f) or (g), that 
amount should be reflected in the Paid by Others column in the Closing 
Cost Details tables under Sec.  1026.38(f) or (g). For a description of 
lender credits from the creditor, see comment 17(c)(1)-19. For a 
discussion of general lender credits and lender credits for specific 
charges, see comment 19(e)(3)(i)-5.
    2. Credits for excess charges. Credits from the creditor to offset 
an amount charged in excess of the limitations described in Sec.  
1026.19(e)(3) are disclosed pursuant to Sec.  1026.38(h)(3), along with 
a statement that such amount was paid to offset an excess charge, with 
funds other than closing funds. If an excess charge to the consumer is 
discovered after consummation and a refund provided, the corrected 
disclosure must be provided to the consumer under Sec.  
1026.19(f)(2)(v). For an example, see form H-25(F) of appendix H to 
this part.
    Paragraph 38(h)(4).
    1. Consistent terminology and order of charges. On the Closing 
Disclosure the creditor must label the corresponding services and costs 
disclosed under Sec.  1026.38(f) and (g) using terminology that 
describes each item, as applicable, and must use terminology or the 
prescribed label, as applicable, that is consistent with that used on 
the Loan Estimate to identify each corresponding item. In addition, 
Sec.  1026.38(h)(4) requires the creditor to list the items disclosed 
under each subcategory of charges in a consistent order. If costs move 
between subheadings under Sec.  1026.38(f)(2) and (f)(3), listing the 
costs in alphabetical order in each subheading category is considered 
to be in compliance with Sec.  1026.38(h)(4). See comment 37(f)(5)-1 
for guidance regarding the requirement to use terminology that 
describes the items to be disclosed.
    38(i) Calculating cash to close.
    1. More prominent disclosures. Section 1026.38(i)(1)(iii), 
(2)(iii), (3)(iii), (4)(iii), (5)(iii), (6)(iii), (7)(iii), and 
(8)(iii) requires that statements are given as to whether the ``Final'' 
amount disclosed under each subparagraph (ii) of Sec.  1026.38(i)(1) 
through (i)(8) is different or equal to, and in some cases whether the 
amount is greater than or less than, the corresponding ``Loan 
Estimate'' amount disclosed under each subparagraph (i) of Sec.  
1026.38(i)(1) through (i)(8). These statements are more prominent than 
the other disclosures under Sec.  1026.38(i). The statement of whether 
the estimated and final amounts are different, stated as a ``Yes'' or 
``No'' in capital letters and in boldface font, under the subheading 
``Did this change?,'' as shown on form H-25 of appendix H to this part, 
complies with the requirement to state whether the amounts are 
different more prominently. Such statement of ``No'' satisfies the 
requirement to state that the estimated and final amounts are equal, 
and these sections do not provide for any narrative text to be included 
with such statement. The prominence requirement also requires that, in 
the event an increase or decrease in costs has occurred, certain words 
within the narrative text to be included under the subheading ``Did 
this change?'' for a ``Yes'' answer are displayed more prominently than 
other disclosures. For example, under Sec.  1026.38(i)(1)(iii)(A), this 
more prominent statement could take the form of the phrases ``Total 
Loan Costs'' and ``Total Other Costs'' being shown in boldface, as 
shown on form H-25 of appendix H to this part. See comments 38(i)-3 and 
-4 for further guidance regarding the prominence of such statements.
    2. Statements of differences. The dollar amounts disclosed under 
Sec.  1026.38 generally are shown to two decimal places unless 
otherwise required. See comment 38(t)(4)-1. As a result, any ``Final'' 
amount that is disclosed in the ``Calculating Cash to Close'' table 
under Sec.  1026.38(i) is shown to two decimal places unless otherwise 
required. Pursuant to Sec.  1026.38(t)(4)(i)(C), however, any ``Loan 
Estimate'' amount that is disclosed in the ``Calculating Cash to 
Close'' table under Sec.  1026.38(i) is shown rounded to the nearest 
dollar amount, and thus matches the corresponding estimated amount 
disclosed on the Loan Estimate's ``Calculating Cash to Close'' table 
under Sec.  1026.37(h), which is shown rounded to the nearest whole 
dollar pursuant to Sec.  1026.37(o)(4)(i)(A). For this reason, a 
``Final'' amount shown to two decimal places could be a larger number 
than its corresponding ``Loan Estimate'' amount shown rounded to the 
nearest whole dollar, when, in fact, the apparent increase is due 
solely to rounding. Therefore, for purposes of Sec.  
1026.38(i)(1)(iii), (2)(iii), (3)(iii), (4)(iii), (5)(iii), (6)(iii), 
(7)(iii), and (8)(iii), each statement of a change between the amounts 
disclosed on the Loan Estimate and the Closing Disclosure is based on 
the actual, non-rounded estimate that would have been disclosed on the 
Loan Estimate under Sec.  1026.37(h) if it had been shown to two 
decimal places rather than a whole dollar amount. For example, if the 
``Loan Estimate'' amount of ``Total Closing Costs'' disclosed under 
Sec.  1026.38(i)(1)(i) is $12,500, and the ``Final'' amount of ``Total 
Closing Costs'' disclosed under Sec.  1026.38(i)(1)(ii) is $12,500.35, 
then even though the table would appear to show a $0.35 increase in 
``Total Closing Costs,'' no statement of such increase is given under 
Sec.  1026.38(i)(1)(iii) so long as the actual, non-rounded estimate 
(i.e., the estimated amount of ``Total Closing Costs'' that would have 
been shown on the Loan Estimate to two decimal places) is equal to 
$12,500.35.
    3. Statements that the consumer should see details. The provisions 
of Sec.  1026.38(i)(4)(iii)(A), (i)(5)(iii)(A), (i)(7)(iii)(A), and 
(i)(8)(iii)(A) each require a statement that the consumer should see 
certain details of the closing costs disclosed under Sec.  1026.38(j). 
Form H-25 of appendix H to this part contains examples of these 
statements. For example, Sec.  1026.38(i)(7)(iii)(A) requires a 
statement that the consumer should see the details disclosed pursuant 
to Sec.  1026.38(j)(2)(v), and, as shown on form H-25(B) of appendix H 
to this part, the statement, ``See Seller Credits in Section L,'' in 
which the words ``Section L'' are in boldface font, complies with this 
provision. In addition, for example, Sec.  1026.38(i)(5)(iii)(A) 
requires a statement that the consumer should see the details disclosed 
pursuant to Sec.  1026.38(j)(2)(ii), and the following statement which 
is similar to that shown on form H-25(B) of appendix H to this part for 
Sec.  1026.38(i)(7)(iii)(A), ``See Deposit in Section L,'' in which

[[Page 80355]]

the words ``Section L'' are in boldface font, complies with this 
provision. In addition, for example, the statement ``See details in 
Sections K and L,'' in which the words ``Sections K and L'' are in 
boldface font, complies with the requirement under Sec.  
1026.38(i)(8)(iii)(A). See form H-25(B) of appendix H to this part for 
an example of the statement required by Sec.  1026.38(i)(8)(iii)(A).
    4. Statements of increases or decreases. The provisions of Sec.  
1026.38(i)(4)(iii)(A), (i)(5)(iii)(A), and (i)(6)(iii)(A) each require 
a statement of whether the amount increased or decreased from the 
estimated amount. For the statement required by Sec.  
1026.38(i)(6)(iii)(A), the statement ``This amount increased,'' in 
which the word ``increased'' is in boldface and is replaced with the 
word ``decreased'' as applicable, complies with this requirement. For 
the statements required by Sec.  1026.38(i)(4)(iii)(A) and 
(i)(5)(iii)(A), the statement, ``You increased this payment,'' in which 
the word ``increased'' is in boldface and is replaced with the word 
``decreased'' as applicable, complies with these requirements.
    38(i)(1) Total closing costs.
    Paragraph 38(i)(1)(iii)(A).
    1. Statements and references regarding the total loan costs and 
total other costs. Under Sec.  1026.38(i)(1)(iii)(A), the statements 
under the subheading ``Did this change?'' that the consumer should see 
the total loan costs and total other costs subtotals disclosed on the 
Closing Disclosure under Sec.  1026.38(f)(4) and (g)(5) is made only if 
and to the extent the difference in the ``Total Closing Costs'' is 
attributable to differences in itemized charges that are included in 
either or both of such subtotals.
    i. For example, if an increase in the ``Total Closing Costs'' is 
attributable only to an increase in the appraisal fee (which is an 
itemized charge on the Closing Disclosure under the subheading 
``Services Borrower Did Not Shop For,'' itself under the heading ``Loan 
Costs''), then a statement is given under the subheading ``Did this 
change?'' that the consumer should see the total loan costs subtotal 
disclosed on the Closing Disclosure under Sec.  1026.38(f)(4). If the 
increase in ``Total Closing Costs'' is attributable only to an increase 
in recording fees (which is an itemized charge on the Closing 
Disclosure under the subheading ``Taxes and Other Government Fees,'' 
itself under the heading ``Other Costs''), then a statement is given 
under the subheading ``Did this change?'' that the consumer should see 
the total other costs subtotal disclosed on the Closing Disclosure 
under Sec.  1026.38(g)(5). If, however, the increase is attributable in 
part to an increase in the appraisal fee and in part to an increase in 
the recording fee, then a statement is given under the subheading ``Did 
this change?'' that the consumer should see the total loan costs and 
total other costs subtotals disclosed on the Closing Disclosure under 
Sec.  1026.38(f)(4) and (g)(5).
    ii. For guidance regarding the requirement that this statement be 
accompanied by a reference to the disclosures of the total loan costs 
and total other costs under Sec.  1026.38(f)(4) and (g)(5), see comment 
38(i)-1. For an example of such reference, see form H-25 of appendix H 
to this part.
    2. Disclosure of excess amounts above limitations on increases in 
closing costs.
    i. Because certain closing costs, individually, are subject to the 
limitations on increases in closing costs under Sec.  1026.19(e)(3)(i) 
(e.g., fees paid to the creditor, transfer taxes, fees paid to an 
affiliate of the creditor), while other closing costs are collectively 
subject to the limitations on increases in closing costs under Sec.  
1026.19(e)(3)(ii) (e.g., recording fees, fees paid to an unaffiliated 
third party identified by the creditor if the creditor permitted the 
consumer to shop for the service provider), Sec.  1026.38(i)(1)(iii)(A) 
requires the creditor or closing agent to calculate subtotals for each 
type of excess amount, and then add such subtotals together to yield 
the dollar amount to be disclosed in the table. See commentary to Sec.  
1026.19(e)(3) for additional guidance on calculating excess amounts 
above the limitations on increases in closing costs under Sec.  
1026.19(e)(3).
    ii. Under Sec.  1026.38(i)(1)(iii)(A), calculation of the excess 
amounts above the limitations on increases in closing costs takes into 
account that the itemized, estimated closing costs disclosed on the 
Loan Estimate will not result in charges to the consumer if the service 
is not actually provided at or before consummation. For example, if the 
Loan Estimate included under ``Services You Cannot Shop For'' a $30 
charge for a ``title courier fee,'' but the title company elects to 
hand-deliver the title documents package to the creditor at no charge, 
the $30 fee is not factored into the calculation of the ``Total Closing 
Costs'' that are subject to the limitations on increases in closing 
costs. However, if the title courier fee was assessed, but at only $15, 
the charge is factored into the calculation because the third-party 
service was actually provided, albeit at a lower amount than estimated.
    iii. Under Sec.  1026.38(i)(1)(iii)(A), calculation of the excess 
amounts above the limitations on increases in closing costs takes into 
account that certain itemized charges listed on the Loan Estimate under 
the subheading ``Services You Can Shop For'' may be subject to 
different limitations depending on the circumstances. Such a charge 
would be subject to the limitations under Sec.  1026.19(e)(3)(i) if the 
consumer decided to use a provider affiliated with the creditor. 
However, the same charge would instead be subject to the limitations 
under Sec.  1026.19(e)(3)(ii) if the consumer selected a third-party 
service provider unaffiliated with but identified by the creditor, and 
the creditor permitted the consumer to shop for the service provider. 
See commentary to Sec.  1026.19(e)(3) for additional guidance on 
calculating excess amounts above the limitations on increases in 
closing costs under Sec.  1026.19(e)(3).
    3. Statements regarding excess amount and any credit to the 
consumer. Section 1026.38(i)(1)(iii)(A)(3) requires statements that an 
increase in closing costs exceeds legal limits by the dollar amount of 
the excess and a statement directing the consumer to the disclosure of 
lender credits under Sec.  1026.38(h)(3) if a credit is provided under 
Sec.  1026.19(f)(2)(v). See form H-25(F) of appendix H to this part for 
examples of such statements.
    38(i)(2) Closing costs paid before closing.
    Paragraph 38(i)(2)(i).
    1. Estimate of closing costs paid before closing. Under Sec.  
1026.38(i)(2)(i), the ``Loan Estimate'' amount for ``Closing Costs Paid 
Before Closing'' is always shown as ``$0,'' because an estimate of such 
amount is not disclosed on the Loan Estimate.
    Paragraph 38(i)(2)(iii)(B).
    1. Equal amount. Under Sec.  1026.38(i)(2)(iii)(B), the creditor or 
closing agent will give a statement that the ``Final'' amount disclosed 
under Sec.  1026.38(i)(2)(ii) is equal to the ``Loan Estimate'' amount 
disclosed under Sec.  1026.38(i)(2)(i), only if the ``Final'' amount is 
$0, because the ``Loan Estimate'' amount is always disclosed as $0 
pursuant to Sec.  1026.38(i)(2)(i). See comment 38(i)(2)(i)-1.
    38(i)(4) Down payment/funds from borrower.
    Paragraph 38(i)(4)(ii)(A).
    1. Down payment. Under Sec.  1026.38(i)(4)(ii)(A), in a transaction 
that is a purchase as defined in Sec.  1026.37(a)(9)(i), the ``Final'' 
amount disclosed for ``Down Payment/Funds from Borrower'' reflects any 
change, following delivery of the Loan Estimate,

[[Page 80356]]

in the amount of down payment required of the consumer. This change 
might result, for example, from an increase in the purchase price of 
the property.
    Paragraph 38(i)(4)(ii)(B).
    1. Funds from borrower. Section 1026.38(i)(4)(ii)(B) provides that, 
in a transaction other than a purchase as defined in Sec.  
1026.37(a)(9)(i), the ``Final'' amount disclosed for ``Down Payment/
Funds from Borrower'' is the amount of ``Funds from Borrower'' 
determined in accordance with Sec.  1026.38(i)(6)(iv). Under Sec.  
1026.38(i)(6)(iv), the ``Final'' amount of ``Funds from Borrower'' to 
be disclosed under Sec.  1026.38(i)(4)(ii)(B) is determined by 
subtracting from the total amount of all existing debt being satisfied 
in the real estate closing and disclosed under Sec.  1026.38(j)(1)(v) 
(except to the extent the satisfaction of such existing debt is 
disclosed under Sec.  1026.38(g)) the principal amount of the credit 
extended, and is disclosed either as a positive number or $0 depending 
on the result of the calculation. An increase in the ``Final'' amount 
of ``Funds from Borrower'' compared to the corresponding ``Loan 
Estimate'' amount might result, for example, from a decrease in the 
amount of the credit extended or an increase in the payoff amount for 
the consumer's existing debt that is secured by the property. For 
additional guidance regarding the determination of the ``Down Payment/
Funds from Borrower'' amount, see comment 38(i)(6)(ii)-1.
    Paragraph 38(i)(4)(iii)(A).
    1. Statement of differences. Section 1026.38(i)(4)(iii)(A) 
requires, as applicable, a statement that the consumer has increased or 
decreased this payment, along with a statement that the consumer should 
see the details disclosed under Sec.  1026.38(j)(1) or (j)(2), as 
applicable. The applicable disclosure to be referenced corresponds to 
the label on the Closing Disclosure under which the information 
accounting for the increase in the ``Down Payment/Funds from Borrower'' 
amount is disclosed. For example, in a transaction that is a purchase 
as defined in Sec.  1026.37(a)(9)(i), if the purchase price of the 
property has increased and therefore caused the ``Down Payment'' amount 
to increase, the statement, ``You increased this payment. See details 
in Section K,'' with the words ``increased'' and ``Section K'' in 
boldface, complies with this requirement. In a purchase or refinancing 
transaction, in the event the amount of the credit extended by the 
creditor has decreased and therefore caused the ``Funds from Borrower'' 
amount to increase, the statement can read, for example, ``You 
increased this payment. See details in Section L,'' with the same in 
boldface.
    38(i)(5) Deposit.
    1. When no deposit in a purchase transaction. Section 1026.38(i)(5) 
requires the disclosure in the Calculating Cash to Close table of the 
deposit required to be disclosed under Sec.  1026.37(h)(1)(iv) and 
under Sec.  1026.38(j)(2)(ii), and the subheadings ``Loan Estimate'' 
and ``Final,'' respectively. Under Sec.  1026.37(h)(1)(iv), in all 
transactions other than a purchase transaction as defined in Sec.  
1026.37(a)(9)(i), the amount required to be disclosed is $0. In a 
purchase transaction in which no such deposit is paid in connection 
with the transaction, under Sec. Sec.  1026.37(h)(1)(iv) and 
1026.38(i)(5)(i) and (ii) the amount required to be disclosed is $0.
    38(i)(6) Funds for borrower.
    Paragraph 38(i)(6)(ii).
    1. Final funds for borrower. Section 1026.38(i)(6)(ii) provides 
that the ``Final'' amount for ``Funds for Borrower'' is determined in 
accordance with Sec.  1026.38(i)(6)(iv). Under Sec.  1026.38(i)(6)(iv), 
the ``Final'' amount of ``Funds for Borrower'' to be disclosed under 
Sec.  1026.38(i)(6)(ii) is determined by subtracting from the total 
amount of all existing debt being satisfied in the transaction and 
disclosed under Sec.  1026.38(j)(1)(v) (except to the extent the 
satisfaction of such existing debt is disclosed under Sec.  1026.38(g)) 
the principal amount of the credit extended (excluding any amount 
disclosed under Sec.  1026.38(i)(3)(ii)), and is disclosed under Sec.  
1026.38(i)(6)(ii) either as a negative number or $0.00 depending on the 
result of the calculation. The ``Final'' amount of ``Funds for 
Borrower'' disclosed under Sec.  1026.38(i)(6)(ii) is the amount to be 
disbursed to the consumer or a designee of the consumer at 
consummation, if any.
    38(i)(7) Seller credits.
    Paragraph 38(i)(7)(ii).
    1. Final seller credits. Under Sec.  1026.38(i)(7)(ii), the 
``Final'' amount of ``Seller Credits'' reflects any change, following 
the delivery of the Loan Estimate, in the amount of funds given by the 
seller to the consumer for generalized (i.e., lump sum) credits for 
closing costs or for allowances for items purchased separately (e.g., 
if the seller is a builder). Seller credits are distinguished from 
payments by the seller for items attributable to periods of time prior 
to consummation, which are among the ``Adjustments and Other Credits'' 
separately disclosed pursuant to Sec.  1026.38(i)(8). For additional 
guidance regarding seller credits, see comments 38(j)(2)(v)-1 and -2.
    38(i)(8) Adjustments and other credits.
    Paragraph 38(i)(8)(ii).
    1. Adjustments and other credits. Under Sec.  1026.38(i)(8)(ii), 
the ``Final'' amount for ``Adjustments and Other Credits'' would 
include, for example, prorations of taxes or homeowners' association 
fees, utilities used but not paid for by the seller, rent collected in 
advance by the seller from a tenant for a period extending beyond the 
consummation, and interest on loan assumptions. This category also 
includes generalized credits toward closing costs given by parties 
other than the seller. For additional guidance regarding adjustments 
and other credits, see commentary to Sec. Sec.  1026.37(h)(7) and 
1026.38(j)(2)(vi) and (j)(2)(xi). If the calculation required by Sec.  
1026.38(i)(8)(ii) yields a negative number, the creditor or closing 
agent discloses the amount as a negative number.
    38(i)(9) Cash to close.
    Paragraph 38(i)(9)(ii).
    1. Final cash to close amount. The ``Final'' amount of ``Cash to 
Close'' disclosed under Sec.  1026.38(i)(9)(ii) is the same as the 
amount disclosed on the Closing Disclosure as ``Cash to Close'' under 
Sec.  1026.38(j)(3)(iii). If the calculation required by Sec.  
1026.38(i)(9)(ii) yields a negative number, the creditor or closing 
agent discloses the amount as a negative number.
    2. More prominent disclosure. Section 1026.38(i)(9)(ii) requires 
that the disclosure of the ``Final'' amount of ``Cash to Close'' be 
more prominent than the other disclosures under Sec.  1026.38(i). Such 
more prominent disclosure can take the form, for example, of boldface 
font, as shown on form H-25 of appendix H to this part.
    38(j) Summary of borrower's transaction.
    1. In general. It is permissible to have two separate Closing 
Disclosures in a transaction: one that reflects the consumer's costs 
and credits only, which is provided to the consumer, and one that 
reflects the seller's costs and credits only, which is provided to the 
seller. See Sec.  1026.38(t)(5)(v) and (vi). Some State laws may 
prohibit provision of information about the consumer to the seller and 
about the seller to the consumer.
    2. Addenda. Additional pages may be attached to the Closing 
Disclosure to add lines, as necessary, to accommodate the complete 
listing of all items required to be shown on the Closing Disclosure 
under Sec.  1026.38(j) and (k), and for the purpose of including 
customary recitals and information used locally in real

[[Page 80357]]

estate closings (for example, breakdown of payoff figures, a breakdown 
of the consumer's total monthly mortgage payments, an accounting of 
debits received and check disbursements, a statement stating receipt of 
funds, applicable special stipulations between consumer and seller, and 
the date funds are transferred). See Sec.  1026.38(t)(5)(ix). A 
reference such as ``See attached page for additional information'' 
should be placed in the applicable section of the Closing Disclosure.
    3. Identical amounts. The amounts disclosed under the following 
provisions of Sec.  1026.38(j) are the same as the amounts disclosed 
under the corresponding provisions of Sec.  1026.38(k): Sec.  
1026.38(j)(1)(ii) and (k)(1)(ii); Sec.  1026.38(j)(1)(iii) and 
(k)(1)(iii); if the amount disclosed under Sec.  1026.38(j)(1)(v) is 
attributable to contractual adjustments between the consumer and 
seller, Sec.  1026.38(j)(1)(v) and (k)(1)(iv); Sec.  1026.38(j)(1)(vii) 
and (k)(1)(vi); Sec.  1026.38(j)(1)(viii) and (k)(1)(vii); Sec.  
1026.38(j)(1)(ix) and (k)(1)(viii); Sec.  1026.38(j)(1)(x) and 
(k)(1)(ix); Sec.  1026.38(j)(2)(iv) and (k)(2)(iv); Sec.  
1026.38(j)(2)(v) and (k)(2)(vii); Sec.  1026.38(j)(2)(viii) and 
(k)(2)(x); Sec.  1026.38(j)(2)(ix) and (k)(2)(xi); Sec.  
1026.38(j)(2)(x) and (k)(2)(xii); and Sec.  1026.38(j)(2)(xi) and 
(k)(2)(xiii).
    38(j)(1) Itemization of amounts due from borrower.
    Paragraph 38(j)(1)(ii).
    1. Contract sales price and personal property. Section 
1026.38(j)(1)(ii) requires disclosure of the contract sales price of 
the property being sold, excluding the price of any tangible personal 
property if the consumer and seller have agreed to a separate price for 
such items. Personal property is defined by State law, but could 
include such items as carpets, drapes, and appliances. Manufactured 
homes are not considered personal property under Sec.  
1026.38(j)(1)(ii).
    Paragraph 38(j)(1)(v).
    1. Contractual adjustments. Section 1026.38(j)(1)(v) requires 
disclosure of amounts owed by the consumer that are not otherwise 
disclosed pursuant to Sec.  1026.38(j). For example, the following 
items must be disclosed under Sec.  1026.38(j), to the extent 
applicable:
    i. The balance in the seller's reserve account held in connection 
with an existing loan, if assigned to the consumer in a loan assumption 
transaction;
    ii. Any rent that the consumer will collect after the real estate 
closing for a period of time prior to the real estate closing; and
    iii. The treatment of any tenant security deposit.
    2. Other consumer charges. The amounts disclosed under Sec.  
1026.38(j)(1)(v) which are for charges owed by the consumer at the real 
estate closing not otherwise disclosed pursuant to Sec.  1026.38(f), 
(g), and (j) will not have a corresponding credit in the summary of the 
seller's transaction under Sec.  1026.38(k)(1)(iv). For example, the 
amounts paid to any existing holders of liens on the property in a 
refinance transaction, and any outstanding real estate property taxes 
are disclosed under Sec.  1026.38(j)(1)(v) without a corresponding 
credit in the summary of the seller's transaction under Sec.  
1026.38(k)(1)(iv).
    Paragraph 38(j)(1)(x).
    1. Additional adjustments. Examples of items for which adjustments 
may be made include taxes, other than those disclosed pursuant to Sec.  
1026.38(j)(1)(vii) and (viii), paid in advance for an entire year or 
other period, when the real estate closing occurs prior to the 
expiration of the year or other period for which they were paid. 
Additional examples of items for which adjustments may be made include:
    i. Flood and hazard insurance premiums, if the consumer is being 
substituted as an insured under the same policy;
    ii. Mortgage insurance in loan assumptions;
    iii. Planned unit development or condominium association 
assessments paid in advance;
    iv. Fuel or other supplies on hand, purchased by the seller, which 
the consumer will use when the consumer takes possession of the 
property; and
    v. Ground rent paid in advance.
    38(j)(2) Itemization of amounts already paid by or on behalf of 
borrower.
    Paragraph 38(j)(2)(ii).
    1. Deposit. All amounts paid into a trust account by the consumer 
pursuant to the contract of sale for real estate, any addenda thereto, 
or any other agreement between the consumer and seller must be 
disclosed under Sec.  1026.38(j)(2)(ii). If there is no deposit paid in 
a transaction, that amount is left blank on the Closing Disclosure.
    2. Reduction of deposit when deposit used to pay for closing 
charges prior to closing. If the consumer's deposit has been applied 
toward a charge for a closing cost, the amount applied should not be 
included in the amount disclosed pursuant to Sec.  1026.38(j)(2)(ii), 
but instead should be shown on the appropriate line for the closing 
cost in the Closing Cost Detail tables pursuant to Sec.  1026.38(f) or 
(g), designated borrower-paid before closing.
    Paragraph 38(j)(2)(iii).
    1. First user loan. For purposes of Sec.  1026.38(j), a first user 
loan is a loan to finance construction of a new structure or purchase 
of a new manufactured home that is known at the time of consummation to 
be real property under State law, where the structure was constructed 
for sale or the manufactured home was purchased for purposes of resale 
and the loan is used as or converted to a loan to finance purchase by 
the first user. For other loans subject to Sec.  1026.19(f) that 
finance construction of a new structure or purchase of a manufactured 
home that is known at the time of consummation to be real property 
under State law, the sales price of the land and the construction cost 
or purchase price of the manufactured home should be disclosed 
separately and the amount of the loan in the current transaction must 
be disclosed. The remainder of the Closing Disclosure should be 
completed taking into account adjustments and charges related to the 
temporary financing and permanent financing that are known at the time 
of consummation.
    Paragraph 38(j)(2)(iv).
    1. Assumption of existing loan obligation of seller by consumer. 
The outstanding amount of any loans that the consumer is assuming, or 
subject to which the consumer is taking title to the property must be 
disclosed under Sec.  1026.38(j)(2)(iv). When more than one loan is 
being assumed, the total amount of all outstanding loans being assumed 
should be disclosed under Sec.  1026.38(j)(2)(iv).
    Paragraph 38(j)(2)(v).
    1. General seller credits. When the consumer receives a generalized 
credit from the seller for closing costs or where the seller (typically 
a builder) is making an allowance to the consumer for items to purchase 
separately, the amount of the credit must be disclosed. However, if the 
seller credit is attributable to a specific loan cost or other cost 
listed in the Closing Cost Details tables, pursuant to Sec.  1026.38(f) 
or (g), that amount should be reflected in the seller-paid column in 
the Closing Cost Details tables under Sec.  1026.38(f) or (g).
    2. Other seller credits. Any other obligations of the seller to be 
paid directly to the consumer, such as for issues identified at a walk-
through of the property prior to closing, are disclosed under Sec.  
1026.38(j)(2)(v).
    Paragraph 38(j)(2)(vi).
    1. Credits from any party other than the seller or creditor. 
Section 1026.38(j)(2)(vi) requires disclosure of a description and the 
amount of items

[[Page 80358]]

paid by or on behalf of the consumer and not disclosed elsewhere under 
Sec.  1026.38(j)(2). For example, credits a consumer receives from a 
real estate agent or other third party, other than a seller or 
creditor, are disclosed pursuant to Sec.  1026.38(j)(2)(vi). However, 
if the credit is attributable to a specific closing cost listed in the 
Closing Cost Details tables under Sec.  1026.38(f) or (g), that amount 
should be reflected in the paid by others column on the Closing Cost 
Details tables and not in the disclosure required under Sec.  
1026.38(j)(2)(vi). Similarly, if a real estate agent rebates a portion 
of the agent's commission to the consumer, the rebate should be listed 
as a credit along with a description of the rebate, which must include 
the name of the party giving the credit.
    2. Subordinate financing proceeds. Any financing arrangements or 
other new loans not otherwise disclosed pursuant to Sec.  
1026.38(j)(2)(iii) or (iv) must also be disclosed pursuant to Sec.  
1026.38(j)(2)(vi). For example, if the consumer is using a second 
mortgage or note to finance part of the purchase price, whether from 
the same creditor, another creditor, or the seller, the principal 
amount of the loan must be disclosed with a brief explanation. If the 
net proceeds of a second loan are less than the principal amount of the 
second loan, the net proceeds may be listed on the same line as the 
principal amount of the second loan. For an example, see form H-25(C) 
of appendix H to this part.
    3. Satisfaction of existing subordinate liens by consumer. For 
payments to subordinate lien holders by or on behalf of the consumer, 
disclosure of any amounts paid with funds other than closing funds, as 
defined under Sec.  1026.38(j)(4)(ii), in connection with the second 
mortgage payoff are required to be disclosed under Sec.  
1026.38(j)(2)(vi), with a statement that such amounts were paid outside 
of closing funds. For an example, see form H-25(D) of appendix H to 
this part.
    4. Transferred escrow balances. In a refinance transaction, any 
transferred escrow balance is listed as a credit pursuant to Sec.  
1026.38(j)(2)(vi), along with a description of the transferred escrow 
balance.
    5. Gift funds. A credit must be disclosed for any money or other 
payments made by family members or third parties not otherwise 
associated with the transaction, along with a description of the nature 
of the funds provided under Sec.  1026.38(j)(2)(vi).
    Paragraph 38(j)(2)(xi).
    1. Examples. Examples of items that would be disclosed under Sec.  
1026.38(j)(2)(xi) include:
    i. Utilities used but not paid for by the seller;
    ii. Rent collected in advance by the seller from a tenant for a 
period extending beyond the closing date; and
    iii. Interest on loan assumptions.
    38(j)(3) Calculation of borrower's transaction.
    Paragraph 38(j)(3)(iii).
    1. Stating if amount is due to or from consumer. To comply with 
Sec.  1026.38(j)(3)(iii), the creditor must state either the cash 
required from the consumer at closing, or cash payable to the consumer 
at closing.
    2. Methodology. To calculate the cash to close, total the amounts 
disclosed under Sec.  1026.38(j)(3)(i) and (ii). If that calculation 
results in a positive amount, the amount is due from the consumer. If 
the calculation results in a negative amount, the amount is due to the 
consumer.
    38(j)(4) Items paid outside of closing funds.
    Paragraph 38(j)(4)(i).
    1. Charges not paid with closing funds. Section 1026.38(j)(4)(i) 
requires that any charges not paid from closing funds but that 
otherwise are disclosed pursuant to Sec.  1026.38(j) be marked as 
``paid outside of closing'' or ``P.O.C.'' The disclosure must include a 
statement of the party making the payment, such as the consumer, 
seller, loan originator, real estate agent, or any other person. For an 
example of a disclosure of a charge not made from closing funds, see 
form H-25(D) of appendix H to this part. For an explanation of what 
constitutes closing funds, see Sec.  1026.38(j)(4)(ii).
    2. Items paid without closing funds not included in sums. Charges 
that are paid outside of closing funds under Sec.  1026.38(j)(4)(i) 
should not be included in computing totals under Sec.  1026.38(j)(1) 
and (j)(2).
    38(k) Summary of seller's transaction.
    1. Transactions with no seller. Section 1026.38(k) does not apply 
in transactions where there is no seller, such as a refinance 
transaction.
    2. Extra line items. For guidance regarding the use of addenda for 
items disclosed on the Closing Disclosure under Sec.  1026.38(k), see 
comment 38(j)-2.
    3. Identical amounts. The amounts disclosed under certain 
provisions of Sec.  1026.38(k) are the same as the amounts disclosed 
under certain provisions of Sec.  1026.38(j). See comment 38(j)-3 for a 
listing of the specific provisions.
    38(k)(2) Itemization of amounts due from seller.
    Paragraph 38(k)(2)(ii).
    1. Distributions of deposit to seller prior to closing. If the 
deposit or any portion thereof has been disbursed to the seller prior 
to closing, the amount of the deposit that has been distributed to the 
seller must be disclosed under Sec.  1026.38(k)(2)(ii).
    Paragraph 38(k)(2)(iv).
    1. Assumption of existing loan obligation of seller by consumer. If 
the consumer is assuming or taking title subject to existing liens and 
the amounts of the outstanding balance of the liens are to be deducted 
from the sales price, the amounts of the outstanding balance of the 
liens must be disclosed under Sec.  1026.38(k)(2)(iv).
    2. Other seller credits. Any other obligations of the seller to be 
paid directly to the consumer, such as credits for issues identified at 
a walk-through of the property prior to the real estate closing, are 
disclosed under Sec.  1026.38(k)(2)(vii).
    Paragraph 38(k)(2)(viii).
    1. Satisfaction of other seller obligations. Seller obligations, 
other than second liens, that must be paid off to clear title to the 
property must be disclosed pursuant to Sec.  1026.38(k)(2)(viii). 
Examples of disclosures pursuant to Sec.  1026.38(k)(2)(viii) include 
the satisfaction of outstanding liens imposed due to Federal, State, or 
local income taxes, real estate property tax liens, judgments against 
the seller reduced to a lien upon the property, or any other 
obligations the seller wishes the closing agent to pay from their 
proceeds at the real estate closing.
    2. Consumer satisfaction of outstanding subordinate loans. If the 
consumer is satisfying existing liens which will not be deducted from 
the sales price, the amount of the outstanding balance of the loan must 
be disclosed under Sec.  1026.38(k)(2)(viii). For example, the amount 
of any second lien which will be paid as part of the real estate 
closing that is not deducted from the seller's proceeds under Sec.  
1026.38(k)(2)(iv), is disclosed under Sec.  1026.38(k)(2)(viii). For 
payments to the subordinate lien holder, any amounts paid must be 
disclosed, and other amounts paid by or on behalf of the seller must be 
disclosed as paid outside of closing funds under Sec.  
1026.38(j)(2)(vi). For additional discussion, see comment 38(j)(2)(vi)-
2.
    3. Escrows held by closing agent for payment of invoices received 
after consummation. Funds to be held by the closing agent for the 
payment of either repairs, or water, fuel, or other utility bills that 
cannot be prorated between the parties at closing because the amounts 
used by the seller prior to closing are not yet known must be disclosed 
under Sec.  1026.38(k)(2)(viii).

[[Page 80359]]

Subsequent disclosure of the actual amount of these post-closing items 
to be paid from closing funds is optional.
    38(k)(3) Calculation of seller's transaction.
    1. Stating if amount is due to or from seller. To comply with Sec.  
1026.38(k)(3)(iii), the creditor must state either the cash required 
from the seller at closing, or cash payable to the seller at closing.
    2. Methodology. To calculate the cash due to or from the consumer, 
total the amounts disclosed under Sec.  1026.38(k)(3)(i) and (ii). If 
that calculation results in a positive amount, the amount is due to the 
seller. If the calculation results in a negative amount, the amount is 
due from the seller.
    38(k)(4) Items paid outside of closing funds.
    1. Guidance. For guidance regarding the disclosure of items paid 
with funds other than closing funds, see comments 38(j)(4)(i)-1 and -2.
    38(l) Loan disclosures.
    38(l)(2) Demand feature.
    1. Covered features. See comment 18(i)-2 for a description of 
demand features triggering the disclosure requirements of Sec.  
1026.38(l)(2).
    38(l)(3) Late payment.
    1. Guidance. See the commentary to Sec.  1026.37(m)(4) for guidance 
on disclosing late payment fees, as required under Sec.  1026.38(l)(3).
    38(l)(6) Security interest.
    1. Alternate property address. Section 1026.38(l)(6) requires 
disclosure of the address for the property that secures the credit, 
including the zip code. If the address is unavailable, Sec.  
1026.38(l)(6) requires disclosure of other location information for the 
property, such as a lot number; however, disclosure of a zip code is 
required in all instances. For transactions secured by a consumer's 
interest in a timeshare plan, the creditor may disclose as other 
location information a lot, square, or other such number or other legal 
description of the property assigned by the local governing authority, 
or if no such number or description is available, disclose the name of 
the timeshare property or properties with a designation indicating that 
the property is an interest in a timeshare plan.
    2. Personal property. Where personal property also secures the 
credit transaction, a description of that property may be disclosed, at 
the creditor's option, pursuant to Sec.  1026.38(l)(6). If the form 
does not provide enough space to disclose a description of personal 
property to be disclosed under Sec.  1026.38(l)(6), an additional page 
may be used and appended to the end of the form provided that the 
creditor complies with the requirements of Sec.  1026.38(t)(3). The 
creditor may use one addendum to disclose the personal property under 
Sec.  1026.38(a)(3)(vi) and (l)(6). See comment 38(a)(3)(vi)-1.
    38(l)(7) Escrow account.
    Paragraph 38(l)(7)(i)(A)(2).
    1. Estimated costs not paid by escrow account funds. Section 
1026.38(l)(7)(i)(A)(2) requires the creditor to estimate the amount the 
consumer is likely to pay during the first year after consummation for 
charges described in Sec.  1026.37(c)(4)(ii) that are known to the 
creditor that will not be paid using escrow account funds. The creditor 
discloses this amount only if an escrow account will be established for 
the payment of any amounts described in Sec.  1026.37(c)(4)(ii). The 
creditor complies with this provision by disclosing the amount of such 
charges used to calculate the estimated taxes, insurance, and 
assessments disclosed pursuant to Sec.  1026.38(c)(1) as the total 
amount scheduled to be paid during the first year after consummation.
    Paragraph 38(l)(7)(i)(A)(4).
    1. Estimated costs paid using escrow account funds. The amount the 
consumer will be required to pay into an escrow account with each 
periodic payment during the first year after consummation pursuant to 
Sec.  1026.38(l)(7)(i)(A)(4) is the amount of estimated escrow payments 
disclosed pursuant to Sec.  1026.38(c)(1).
    Paragraph 38(l)(7)(i)(B)(1).
    1. Estimated costs paid directly by the consumer. The estimated 
total amount the consumer will pay directly for charges described in 
Sec.  1026.37(c)(4)(ii) that are known to the creditor in the absence 
of an escrow account during the first year after consummation pursuant 
to Sec.  1026.38(l)(7)(i)(B)(1) is the amount of estimated taxes, 
insurance, and assessments disclosed pursuant to Sec.  1026.38(c)(1) as 
the estimated total amount scheduled to be paid during the first year 
after consummation. The creditor discloses this amount only if no 
escrow account will be established for the payment of amounts described 
in Sec.  1026.37(c)(4)(ii).
    38(m) Adjustable payment table.
    1. Guidance. See the commentary to Sec.  1026.37(i) for guidance 
regarding the disclosure required by Sec.  1026.38(m).
    2. Master heading. The disclosure required by Sec.  1026.38(m) is 
required to be provided under a different master heading than the 
disclosure required by Sec.  1026.37(i), but all other requirements 
applicable to the disclosure required by Sec.  1026.37(i) apply to the 
disclosure required by Sec.  1026.38(m).
    3. When table is not permitted to be disclosed. Like the disclosure 
required by Sec.  1026.37(i), the disclosure required by Sec.  
1026.38(m) is required only if the periodic principal and interest 
payment may change after consummation based on a loan term other than 
on an adjustment to the interest rate or if the transaction is a 
seasonal payment product as described under Sec.  
1026.37(a)(10)(ii)(E). If the transaction does not contain these terms, 
this table is not permitted on the Closing Disclosure. See comments 37-
1 and 37(i)-1.
    4. Final loan terms. The disclosures required by Sec.  1026.38(m) 
must include the information required by Sec.  1026.37(i), as 
applicable, but the creditor must make the disclosure using the 
information that is required by Sec.  1026.19(f). See comments 
19(f)(1)(i)-1 and -2.
    38(n) Adjustable interest rate table.
    1. Guidance. See the commentary to Sec.  1026.37(j) for guidance 
regarding the disclosures required by Sec.  1026.38(n).
    2. Master heading. The disclosure required by Sec.  1026.38(n) is 
required to be provided under a different master heading than the 
disclosure required by Sec.  1026.37(j), but all other requirements 
applicable to the disclosure required by Sec.  1026.37(j) apply to the 
disclosure required by Sec.  1026.38(n).
    3. When table is not permitted to be disclosed. Like the disclosure 
required by Sec.  1026.37(j), the disclosure required by Sec.  
1026.38(n) is required only if the interest rate may change after 
consummation based on the terms of the legal obligation. If the 
interest rate will not change after consummation, this table is not 
permitted on the Closing Disclosure. See comments 37-1 and 37(j)-1.
    4. Final loan terms. The disclosures required by Sec.  1026.38(n) 
must include the information required by Sec.  1026.37(j), as 
applicable, but the creditor must make the disclosure using the 
information that is known at the time the disclosure is required to be 
provided by Sec.  1026.19(f).
    38(o) Loan calculations.
    38(o)(1) Total of payments.
    1. Calculation of total of payments. The total of payments is 
calculated in the same manner as the ``In 5 Years'' disclosure pursuant 
to Sec.  1026.37(l)(1)(i), except that the disclosed amount reflects 
the total payments through the end of the loan term. For guidance on 
the amounts included in the total of payments calculation, see comment 
37(l)(1)(i)-1.
    38(o)(2) Finance charge.
    1. Calculation of finance charge. The finance charge is calculated 
in

[[Page 80360]]

accordance with the requirements of Sec.  1026.4 and its commentary and 
is expressed as a dollar amount.
    2. Disclosure. The finance charge is disclosed as a total amount; 
the components of the finance charge are not itemized.
    38(o)(3) Amount financed.
    1. Calculation of amount financed. The amount financed is 
calculated in accordance with the requirements of Sec.  1026.18(b) and 
its commentary.
    38(o)(5) Total interest percentage.
    1. In general. For guidance on calculation and disclosure of the 
total interest percentage, see Sec.  1026.37(l)(3) and its commentary.
    38(p) Other disclosures.
    38(p)(1) Appraisal.
    1. Applicability. The disclosure required by Sec.  1026.38(p)(1) is 
only applicable to closed-end transactions subject to Sec.  1026.19(f) 
that are also subject either to 15 U.S.C. 1639h or 1691(e), as 
implemented by this part or Regulation B, 12 CFR part 1002, 
respectively. Accordingly, if a transaction is not subject to either of 
those provisions, the disclosure required by Sec.  1026.38(p)(1) may be 
left blank on form H-25 of appendix H to this part.
    38(p)(3) Liability after foreclosure.
    1. State law requirements. If the creditor forecloses on the 
property and the proceeds of the foreclosure sale are less than the 
unpaid balance on the loan, whether the consumer has continued or 
additional responsibility for the loan balance after foreclosure, and 
the conditions under which liability occurs, will vary by State. If the 
applicable State law affords any type of protection, other than a 
statute of limitations that only limits the timeframe in which a 
creditor may seek redress, Sec.  1026.38(p)(3) requires a statement 
that State law may protect the consumer from liability for the unpaid 
balance.
    38(q) Questions notice.
    Paragraph 38(q)(3).
    1. Prominent question mark. The notice required under Sec.  
1026.38(q) includes a prominent question mark. This prominent question 
mark is an aspect of form H-25 of appendix H to this part, the standard 
form or model form, as applicable, pursuant to Sec.  1026.38(t). If the 
creditor deviates from the depiction of the question mark as shown on 
form H-25, the creditor complies with Sec.  1026.38(q) if (1) the size 
and location of the question mark on the Closing Disclosure are 
substantially similar in size and location to the question mark shown 
on form H-25, and (2) the creditor otherwise complies with Sec.  
1026.38(t)(5) regarding permissible changes to the form of the Closing 
Disclosure.
    38(r) Contact information.
    1. Each person to be identified. Form H-25 of appendix H to this 
part includes the contact information required to be disclosed under 
Sec.  1026.38(r) generally in a five-column tabular format (i.e., there 
are columns from left to right that disclose the contact information 
for the creditor, mortgage broker, consumer's real estate broker, 
seller's real estate broker, and settlement agent). Columns are left 
blank where no such person is participating in the transaction. For 
example, if there is no mortgage broker involved in the transaction, 
the column for the mortgage broker is left blank. Conversely, in the 
event the transaction involves more than one of each such person (e.g., 
two sellers' real estate brokers splitting a commission), the space in 
the contact information table provided on form H-25 of appendix H to 
this part may be altered to accommodate the information for such 
persons, provided that the information required by Sec.  
1026.38(o),(p),(q),(r) and (s) is disclosed on the same page as 
illustrated by form H-25. If the space provided on form H-25 does not 
accommodate the addition of such information, an additional table to 
accommodate the information may be provided on a separate page, with an 
appropriate reference to the additional table. A creditor or settlement 
agent may also omit a column on the table that is inapplicable or, if 
necessary, replace an inapplicable column with the contact information 
for the additional person.
    2. Name of person. Where Sec.  1026.38(r)(1) calls for disclosure 
of the name of the person participating in the transaction, the 
person's legal name (e.g., the name used for registration, 
incorporation, or chartering purposes), the person's trade name, if 
any, or an abbreviation of the person's legal name or the trade name is 
disclosed, so long as the disclosure is clear and conspicuous as 
required by Sec.  1026.38(t)(1)(i). For example, if the creditor's 
legal name is ``Alpha Beta Chi Bank and Trust Company, N.A.'' and its 
trade name is ``ABC Bank,'' then under Sec.  1026.38(r)(1) the full 
legal name, the trade name, or an abbreviation such as ``ABC Bank & 
Trust Co.'' may be disclosed. However, the abbreviation ``Bank & Trust 
Co.'' is not sufficiently distinct to enable a consumer to identify the 
person, and therefore would not be clear and conspicuous. If the 
creditor, mortgage broker, seller's real estate broker, consumer's real 
estate broker, or settlement agent participating in the transaction is 
a natural person, the natural person's name is listed in the Sec.  
1026.38(r)(1) and (r)(4) disclosures (assuming that such natural person 
is the primary contact for the consumer or seller, as applicable).
    3. Address. The address disclosed under Sec.  1026.38(r)(2) is the 
identified person's place of business where the primary contact for the 
transaction is located (usually the local office), rather than a 
general corporate headquarters address. If a natural person's name is 
to be disclosed under Sec.  1026.38(r)(1), see comment 38(r)-2, the 
business address of such natural person is listed (assuming that such 
natural person is the primary contact for the consumer or seller, as 
applicable).
    4. NMLSR ID. Section 1026.38(r)(3) and (5) requires the disclosure 
of an NMLSR identification (ID) number for each person identified in 
the table. The NMLSR ID is a unique number or other identifier that is 
generally assigned by the Nationwide Mortgage Licensing System & 
Registry (NMLSR) to individuals registered or licensed through NMLSR to 
provide loan originating services (for more information, see the Secure 
and Fair Enforcement for Mortgage Licensing Act of 2008 (SAFE Act) 
sections 1503(3) and (12) and 1504, 12 U.S.C. 5102(3) and (12) and 
5103, and its implementing regulations (i.e., 12 CFR 1007.103(a) and 
1008.103(a)(2)). An entity may also have an NMLSR ID. Thus, any NMLSR 
ID that is obtained by a creditor or mortgage broker entity disclosed 
under Sec.  1026.38(r)(1), as applicable, or a natural person disclosed 
under Sec.  1026.38(r)(4), either as required under the SAFE Act or 
otherwise, is disclosed. If the creditor, mortgage broker, or natural 
person has an NMLSR ID and a separate license number or unique 
identifier issued by the applicable State, locality, or other 
regulatory body with responsibility for licensing and/or registering 
such entity or person's business activities, both the NMLSR ID and the 
separate license number or unique identifier may be disclosed. The 
space in the table is left blank for the disclosures in the columns 
corresponding to persons that have no NMLSR ID to be disclosed under 
Sec.  1026.38(r)(3) and (5); provided that, the creditor may omit the 
column from the table or, if necessary, replace the column with the 
contact information for an additional person. See comment 38(r)-1.
    5. License number or unique identifier. Section 1026.38(r)(3) and 
(5) requires the disclosure of a license number or unique identifier 
for each person (including natural persons) identified in the table who 
does not

[[Page 80361]]

have a NMLSR ID if the applicable State, locality, or other regulatory 
body with responsibility for licensing and/or registering such person's 
business activities has issued a license number or other unique 
identifier to such person under Sec.  1026.38(r)(3) and (5). The space 
in the table is left blank for the disclosures in the columns 
corresponding to persons who are not subject to the issuance of such a 
license number or unique identifier to be disclosed under Sec.  
1026.38(r)(3) and (5); provided that, the creditor or settlement agent 
may omit the column from the table or, if necessary, replace the column 
with the contact information for an additional person. See comment 
38(r)-1. In addition, under Sec.  1026.38(r)(3) and (5), the 
abbreviation of the State or the jurisdiction or regulatory body that 
issued such license or registration is required to be included before 
the word ``License'' in the label required by Sec.  1026.37(r)(3) and 
(5). If no such license or registration is required to be disclosed, 
such as if an NMLSR number is disclosed, the space provided for such an 
abbreviation in form H-25 of appendix H to this part may be left blank. 
A creditor complies with the requirements of Sec.  1026.38(r)(3) and 
(5) to disclose the abbreviation of the State by disclosing a U.S. 
Postal Service State abbreviation, if applicable.
    6. Contact. Section 1026.38(r)(4) requires the disclosure of the 
primary contact for the consumer. The primary contact is the natural 
person employed by the person disclosed under Sec.  1026.38(r)(1) who 
interacts most frequently with the consumer and who has an NMLSR ID or, 
if none, a license number or other unique identifier to be disclosed 
under Sec.  1026.38(r)(5), as applicable. For example, if the senior 
loan officer employed by the creditor or mortgage broker disclosed 
under Sec.  1026.38(r)(1) has an NMLSR ID, but the consumer meets with 
a different loan officer to complete the application and answer 
questions, the senior loan officer's name is disclosed under Sec.  
1026.38(r)(4) unless the other loan officer also has an NMLSR ID, in 
which case the other loan officer's name is disclosed. Further, if the 
sales agent employed by the consumer's real estate broker disclosed 
under Sec.  1026.38(r)(1) has a State-issued brokers' license number, 
but the consumer meets with an associate sales agent to tour the 
property being purchased and complete the sales contract, the sales 
agent's name is disclosed under Sec.  1026.38(r)(4) unless the 
associate sales agent also has a State-issued license number, in which 
case the associate sales agent's name is disclosed. Moreover, if the 
closing attorney employed by the settlement agent disclosed under Sec.  
1026.38(r)(1) has a State-issued settlement agent license number, but 
the consumer meets with the attorney's assistant to fill out any 
necessary documentation prior to the closing and to answer questions, 
the closing attorney's name is disclosed under Sec.  1026.38(r)(4) 
because the assistant is only performing clerical functions.
    7. Email address and phone number. Section 1026.38(r)(6) and (7) 
requires disclosure of the email address and phone number, 
respectively, for the persons listed in Sec.  1026.37(r)(4). Disclosure 
of a general number or email address for the lender, mortgage broker, 
real estate broker, or settlement agent, as applicable, satisfies this 
requirement if no such information is generally available for such 
person.
    38(s) Signature statement.
    1. General requirements. See the commentary to Sec.  1026.37(n) for 
guidance regarding the optional signature requirements and signature 
lines for multiple consumers.
    38(t) Form of disclosures.
    38(t)(1) General requirements.
    1. Clear and conspicuous; segregation. The clear and conspicuous 
standard requires that the disclosures required by Sec.  1026.38 be 
legible and in a readily understandable form. The disclosures also must 
be grouped together and segregated from everything else. As required by 
Sec.  1026.38(t)(3), the disclosures for any transaction that is a 
federally related mortgage loan under Regulation X, 12 CFR 1024.2, must 
be made using the standard form H-25 of appendix H to this part. 
Accordingly, use of that form constitutes compliance with the clear and 
conspicuous and segregation requirements of Sec.  1026.38(t)(1).
    2. Balloon payment financing with leasing characteristics. In 
certain credit sale or loan transactions, a consumer may reduce the 
dollar amount of the payments to be made during the course of the 
transaction by agreeing to make, at the end of the loan term, a large 
final payment based on the expected residual value of the property. The 
consumer may have a number of options with respect to the final 
payment, including, among other things, retaining the property and 
making the final payment, refinancing the final payment, or 
transferring the property to the creditor in lieu of the final payment. 
Such transactions may have some of the characteristics of lease 
transactions subject to Regulation M (12 CFR part 1013), but are 
considered credit transactions where the consumer assumes the indicia 
of ownership, including the risks, burdens and benefits of ownership, 
upon consummation. These transactions are governed by the disclosure 
requirements of this part instead of Regulation M. Under Sec.  
1026.38(t)(1)(ii), creditors may not include any additional information 
in the disclosures required by Sec.  1026.38. Thus, the disclosures 
must show the large final payment as a balloon payment in the projected 
payments table required by Sec.  1026.38(c) and should not, for 
example, reflect the other options available to the consumer at 
maturity.
    38(t)(2) Headings and labels.
    1. Estimated amounts. Certain amounts are estimated when provided 
on the disclosure required by Sec.  1026.37. When disclosed as required 
by Sec.  1026.38, however, many of the corresponding disclosures must 
be actual amounts rather than estimates in accordance with the 
requirements of Sec.  1026.19(f), even though the provision of Sec.  
1026.38 cross-references a counterpart in Sec.  1026.37. Section 
1026.38(t)(2) provides that, if a master heading, heading, subheading, 
label, or similar designation contains the word ``estimated'' in form 
H-25 of appendix H to this part, that heading, label, or similar 
designation shall contain the word ``estimated.'' Thus, Sec.  
1026.38(t)(2) incorporates the ``estimated'' designations reflected on 
form H-25 into the requirements of Sec.  1026.38. See comment 37(o)(2)-
1.
    38(t)(3) Form.
    1. Non-federally related mortgage loans. For a transaction that a 
non-federally related mortgage loan, the creditor is not required to 
use form H-25 of appendix H to this part, although its use as a model 
form for such transactions, if properly completed with accurate 
content, constitutes compliance with the clear and conspicuous and 
segregation requirements of Sec.  1026.38(t)(1)(i). Even when the 
creditor elects not to use the model form, Sec.  1026.38(t)(1)(ii) 
requires that the disclosures contain only the information required by 
Sec.  1026.38(a) through (s), and that the creditor make the 
disclosures in the same order as they occur in form H-25, use the same 
headings, labels, and similar designations as used in the form (many of 
which also are expressly required by Sec.  1026.38(a) through (s)), and 
position the disclosures relative to those designations in the same 
manner as shown in the form. In order to be in a format substantially 
similar to form H-25, the disclosures required by Sec.  1026.38 must be 
provided on letter size (8.5'' x 11'') paper.

[[Page 80362]]

    38(t)(4) Rounding.
    1. Generally. Consistent with Sec.  1026.2(b)(4), any amount 
required to be disclosed by Sec.  1026.38 and not required to be 
rounded by Sec.  1026.38(t)(4) must be disclosed as an exact numerical 
amount using decimal places where applicable, unless otherwise 
provided. For example, under Sec.  1026.38(t)(4), the principal and 
interest payment disclosed under Sec.  1026.37(b)(3) and Sec.  
1026.38(b) must be disclosed using decimal places even if the amount of 
cents is zero, in contrast to the loan amount disclosed under Sec.  
1026.37(b)(1) and Sec.  1026.38(b).
    2. Guidance. For guidance regarding the requirements of Sec.  
1026.38(t)(4), see the commentary to Sec.  1026.37(o)(4).
    38(t)(5) Exceptions.
    1. Permissible changes. The changes required and permitted by Sec.  
1026.38(t)(5) are permitted for federally related mortgage loans for 
which the use of form H-25 is required under Sec.  1026.38(t)(3). For 
non-federally related mortgage loans, the changes required or permitted 
by Sec.  1026.38(t)(5), do not affect the substance, clarity, or 
meaningful sequence of the disclosure and therefore, are permissible. 
Any changes to the disclosure not specified in Sec.  1026.38(t)(5) or 
not permitted by other provisions of Sec.  1026.38 are not permissible 
for federally related mortgage loans. Creditors in non-federally 
related mortgage loans making any changes that affect the substance, 
clarity, or meaningful sequence of the disclosure will lose their 
protection from civil liability under TILA section 130.
    2. Manual completion. The creditor, or settlement agent preparing 
the form, under Sec.  1026.19(f)(1)(v) is not required to use a 
computer, typewriter, or other word processor to complete the 
disclosure required by Sec.  1026.38. The creditor or settlement agent 
may fill in information and amounts required to be disclosed by Sec.  
1026.38 on form H-25 of appendix H to this part by hand printing or 
using any other method, provided the person produces clear and legible 
text and uses the formatting required by Sec.  1026.38, including 
replicating bold font where required.
    3. Unit-period. Section 1026.38(t)(5)(i) provides that wherever 
form H-25 or Sec.  1026.38 uses ``monthly'' to describe the frequency 
of any payments or uses ``month'' to describe the applicable unit-
period, the creditor is required to substitute the appropriate term to 
reflect the fact that the transaction's terms provide for other than 
monthly periodic payments, such as bi-weekly or quarterly payments. For 
purposes of Sec.  1026.38, the term ``unit-period'' has the same 
meaning as in appendix J to Regulation Z.
    4. Signature lines. Section 1026.38(t) does not restrict the 
addition of signature lines to the disclosure required by Sec.  
1026.38, provided any signature lines for confirmations of receipt of 
the disclosure appear only under the ``Confirm Receipt'' heading 
required by Sec.  1026.38(s) as illustrated by form H-25 of appendix H 
to this part. If the number of signatures requested by the creditor for 
confirming receipt of the disclosure requires space for signature lines 
in excess of that provided on form H-25, an additional page may be 
added to accommodate the additional signature lines with an appropriate 
reference to the additional page. Such additional page should also 
contain the heading and statement required by Sec.  1026.38(s) in the 
format provided on form H-25. Signatures for a purpose other than 
confirming receipt of the form may be obtained on a separate page, and 
consistent with Sec.  1026.38(t)(1)(i), not on the same page as the 
information required by Sec.  1026.38.
    5. Additional page. Information required or permitted to be 
disclosed by Sec.  1026.38 on a separate page should be formatted 
similarly to form H-25 of appendix H to this part, so as not to affect 
the substance, clarity, or meaningful sequence of the disclosure. In 
addition, information provided on additional pages should be 
consolidated on as few pages as necessary so as not to affect the 
substance, clarity, or meaningful sequence of the disclosure.
    6. Page numbers. References required by provisions of Sec.  1026.38 
to information disclosed pursuant to other provisions of the section, 
as illustrated on form H-25 of appendix H, may be altered to refer to 
the appropriate page number of the form containing such information.
    7. Translation. Section 1026.38(t)(5)(viii) permits the translation 
of form H-25 into languages other than English, similar to Sec.  
1026.37(o)(5)(ii). Pursuant Sec.  1026.38(t)(5)(viii) creditors may 
modify form H-25 to the extent that translation prevents the headings, 
labels, designations, and required disclosure items under Sec.  1026.38 
from fitting in the space provided on form H-25. For example, if the 
translation of a required label does not fit within the line provided 
for such label in form H-25, the label may be disclosed over two lines. 
See form H-28 of appendix H to this part for Spanish translations of 
form H-25.
    38(t)(5)(iv) Closing Cost Details.
    1. Line numbers; closing cost details. Section 1026.38(t)(5)(iv)(A) 
permits the deletion of unused lines from the disclosures required by 
Sec.  1026.38(f)(1) through (3) and (g)(1) through (4), if necessary to 
allow the addition of lines to other sections that require them for the 
required disclosures. This provision permits creditors and settlement 
agents to use the space gained from deleting unused lines for 
additional lines to accommodate all of the costs that are required to 
be itemized. For example, if the only origination charge required by 
Sec.  1026.38(f)(1) is points, the remaining seven lines illustrated on 
form H-25 of appendix H to this part may be deleted and added to the 
disclosure required by Sec.  1026.38(g)(4), if seven lines in addition 
to those provided on form H-25 are necessary to accommodate such 
disclosure.
    2. Two pages; closing cost details. Section 1026.38(t)(5)(iv)(B) 
permits the disclosure of the information required by Sec.  1026.38(f) 
through (h) over two pages, but only if form H-25 of appendix H to this 
part, as modified pursuant to Sec.  1026.38(t)(5)(iv)(A), does not 
accommodate all of the costs required to be disclosed on one page. If 
the deletion of unused lines and the addition of such lines to other 
sections permits the disclosures required by Sec.  1026.38(f) through 
(h) to fit on one page, modification pursuant to Sec.  
1026.38(t)(5)(iv)(B) is not permissible.
    3. Separate pages for Loan Costs and Other Costs. The modification 
permitted by Sec.  1026.38(t)(5)(iv)(B) allows the information required 
by Sec.  1026.38(f) through (h) to be disclosed over two pages, 
numbered as ``2a'' and ``2b.'' For an example of such a modification, 
see form H-25(H) of appendix H to this part. Under this modification, 
the information required by Sec.  1026.38(h) must remain on the same 
page as the information required by Sec.  1026.38(g). Accordingly, the 
Loan Costs section of form H-25 may appear on its own page ``2a,'' but 
the Other Costs section must appear on the same page as the Total 
Closing Costs section on page ``2b.'' The modifications permitted by 
Sec.  1026.38(t)(5)(iv)(A) and (B) may be used in conjunction to ensure 
disclosure of Sec.  1026.38(f) on one page and Sec.  1026.38(g) and (h) 
on a separate page.
    38(t)(5)(vii) Transaction without a seller.
    1. Alternative tables. The alternative tables pursuant to Sec.  
1026.38(d)(2) and (e) are required to be disclosed to use the 
modification permitted under Sec.  1026.38(t)(5)(vii).
    2. Appraised property value. The modifications permitted by Sec.  
1026.38(t)(5)(vii) do not specifically

[[Page 80363]]

refer to the label required by Sec.  1026.38(a)(3)(vii)(B) for 
transactions that do not involve a seller, because the label is 
required by that section and is a requirement and not considered a 
modification. As required by Sec.  1026.38(a)(3)(vii)(B), a form used 
for a transaction that does not involve a seller and is modified 
pursuant to Sec.  1026.38(t)(5)(viii) must contain the label 
``Appraised Prop. Value'' or ``Estimated Prop. Value'' where there is 
no appraisal, and the information is required by Sec.  
1026.38(a)(3)(vii)(B).
    38(t)(5)(ix) Customary recitals and information.
    1. Customary recitals and information. Section 1026.38(t)(5)(ix) 
permits an additional page to be added to the disclosure for customary 
recitals and information used locally in real estate settlements. 
Examples of such information include a breakdown of payoff figures, a 
breakdown of the consumer's total monthly mortgage payments, check 
disbursements, a statement indicating receipt of funds, applicable 
special stipulations between buyer and seller, and the date funds are 
transferred.

Section 1026.39--Mortgage Transfer Disclosures

* * * * *
    39(d) Content of required disclosures.
* * * * *
    2. Partial payment policy. The disclosures required by Sec.  
1026.39(d)(5) must identify whether the covered person accepts periodic 
payments from the consumer that are less than the full amount due and 
whether the covered person applies the payments to a consumer's loan or 
holds the payments in a separate account until the consumer pays the 
remainder of the full amount due. The disclosures required by Sec.  
1026.39(d)(5) apply only to a mortgage loan that is a closed-end 
consumer credit transaction secured by a dwelling or real property and 
that is not a reverse mortgage transaction subject to Sec.  1026.33. In 
an open-end consumer credit transaction secured by the consumer's 
principal dwelling, Sec.  1026.39(d) requires a covered person to 
provide the disclosures required by Sec.  1026.39(d)(1) through (4), 
but not the partial payment policy disclosure required by Sec.  
1026.39(d)(5). If, however, the dwelling in the open-end consumer 
credit transaction is not the consumer's principal dwelling (e.g., it 
is used solely for vacation purposes), none of the disclosures required 
by Sec.  1026.39(d) is required because the transaction is not a 
mortgage loan for purposes of Sec.  1026.39. See Sec.  1026.39(a)(2). 
In contrast, a closed-end consumer credit transaction secured by the 
consumer's dwelling that is not the consumer's principal dwelling is 
considered a mortgage loan for purposes of Sec.  1026.39. Assuming that 
the transaction is not a reverse mortgage transaction subject to Sec.  
1026.33, Sec.  1026.39(d) requires a covered person to provide the 
disclosures under Sec.  1026.39(d)(1) through (5). But if the 
transaction is a reverse mortgage transaction subject to Sec.  1026.33, 
Sec.  1026.39(d) requires a covered person to provide only the 
disclosures under Sec.  1026.39(d)(1) through (4).
* * * * *
    39(d)(5) Partial payment policy.
    1. Format of disclosure. Section 1026.39(d)(5) requires disclosure 
of the partial payment policy of covered persons for closed-end 
consumer credit transactions secured by a dwelling or real property, 
other than a reverse mortgage transaction subject to Sec.  1026.33. A 
covered person may utilize the format of the disclosure illustrated by 
form H-25 of appendix H to this part for the information required to be 
disclosed by Sec.  1026.38(l)(5). For example, the statement required 
Sec.  1026.39(d)(5)(iii) that a new covered person may have a different 
partial payment policy may be disclosed using the language illustrated 
by form H-25, which states ``If this loan is sold, your new lender may 
have a different policy.'' The text illustrated by form H-25 may be 
modified to suit the format of the covered person's disclosure under 
Sec.  1026.39. For example, the format illustrated by form H-25 begins 
with the text, ``Your lender may'' or ``Your lender does not,'' which 
may not be suitable to the format of the covered person's other 
disclosures under Sec.  1026.39. This text may be modified to suit the 
format of the covered person's integrated disclosure, using a phrase 
such as ``We will'' or ``We are your new lender and have a different 
Partial Payment Policy than your previous lender. Under our policy we 
will.'' Any modifications must be appropriate and not affect the 
substance, clarity, or meaningful sequence of the disclosure.
* * * * *

Appendix D--Multiple-Advance Construction Loans

* * * * *
    6. Relation to Sec.  1026.18(s). A creditor must disclose an 
interest rate and payment summary table for certain transactions 
secured by a dwelling, pursuant to Sec.  1026.18(s), instead of the 
general payment schedule required by Sec.  1026.18(g) or the projected 
payments table required by Sec. Sec.  1026.37(c) and 1026.38(c). 
Accordingly, some home construction loans that are secured by a 
dwelling are subject to Sec.  1026.18(s) and not Sec.  1026.18(g). See 
comment app. D-7 for a discussion of transactions that are subject to 
Sec. Sec.  1026.37 and 1026.38. Under Sec.  1026.17(c)(6)(ii), when a 
multiple-advance construction loan may be permanently financed by the 
same creditor, the construction phase and the permanent phase may be 
treated as either one transaction or more than one transaction. 
Following are illustrations of the application of appendix D to 
transactions subject to Sec.  1026.18(s), under each of these two 
alternatives:
    i. If a creditor uses appendix D and elects pursuant to Sec.  
1026.17(c)(6)(ii) to disclose the construction and permanent phases as 
separate transactions, the construction phase must be disclosed 
according to the rules in Sec.  1026.18(s). Under Sec.  1026.18(s), the 
creditor must disclose the applicable interest rates and corresponding 
periodic payments during the construction phase in an interest rate and 
payment summary table. The provision in appendix D, part I.A.3, which 
allows the creditor to omit the number and amounts of any interest 
payments ``in disclosing the payment schedule under Sec.  1026.18(g)'' 
does not apply because the transaction is governed by Sec.  1026.18(s) 
rather than Sec.  1026.18(g). Also, because the construction phase is 
being disclosed as a separate transaction and its terms do not repay 
all principal, the creditor must disclose a balloon payment, pursuant 
to Sec.  1026.18(s)(5).
    ii. On the other hand, if the creditor elects to disclose the 
construction and permanent phases as a single transaction, where 
interest is payable on the amount actually advanced for the time it is 
outstanding, the construction phase must be disclosed pursuant to 
appendix D, part II.C.1, which provides that the creditor shall 
disclose the repayment schedule without reflecting the number or 
amounts of payments of interest only that are made during the 
construction phase. Appendix D also provides, however, that creditors 
must disclose (outside of the table) the fact that interest payments 
must be made and the timing of such payments. The interest rate and 
payment summary table disclosed under Sec.  1026.18(s) in such cases 
must reflect only the permanent phase of the transaction. Therefore, in 
determining the rates and payments that must be disclosed in the 
columns of the table, creditors should apply the requirements of Sec.  
1026.18(s) to the permanent phase only. For example, under Sec.  
1026.18(s)(2)(i)(A) or Sec.  1026.18(s)(2)(i)(B)(1), as applicable,

[[Page 80364]]

the creditor should disclose the interest rate corresponding to the 
first installment due under the permanent phase and not any rate 
applicable during the construction phase.
    7. Relation to Sec. Sec.  1026.37 and 1026.38. A creditor must 
disclose a projected payments table for certain transactions secured by 
real property, pursuant to Sec. Sec.  1026.37(c) and 1026.38(c), 
instead of the general payment schedule required by Sec.  1026.18(g) or 
the interest rate and payments summary table required by Sec.  
1026.18(s). Accordingly, some home construction loans that are secured 
by real property are subject to Sec. Sec.  1026.37(c) and 1026.38(c) 
and not Sec.  1026.18(g). See comment app. D-6 for a discussion of 
transactions that are subject to Sec.  1026.18(s). Under Sec.  
1026.17(c)(6)(ii), when a multiple-advance construction loan may be 
permanently financed by the same creditor, the construction phase and 
the permanent phase may be treated as either one transaction or more 
than one transaction. Following are illustrations of the application of 
appendix D to transactions subject to Sec. Sec.  1026.37(c) and 
1026.38(c), under each of these two alternatives:
    i. If a creditor uses appendix D and elects pursuant to Sec.  
1026.17(c)(6)(ii) to disclose the construction and permanent phases as 
separate transactions, the construction phase must be disclosed 
according to the rules in Sec. Sec.  1026.37(c) and 1026.38(c). Under 
Sec. Sec.  1026.37(c) and 1026.38(c), the creditor must disclose the 
periodic payments during the construction phase in a projected payments 
table. The provision in appendix D, part I.A.3, which allows the 
creditor to omit the number and amounts of any interest payments ``in 
disclosing the payment schedule under Sec.  1026.18(g)'' does not apply 
because the transaction is governed by Sec. Sec.  1026.37(c) and 
1026.38(c) rather than Sec.  1026.18(g). The creditor determines the 
amount of the interest-only payment to be made during the construction 
phase using the assumption in appendix D, part I.A.1. Also, because the 
construction phase is being disclosed as a separate transaction and its 
terms do not repay all principal, the creditor must disclose the 
construction phase transaction as a product with a balloon payment 
feature, pursuant to Sec. Sec.  1026.37(a)(10)(ii)(D) and 
1026.38(a)(5)(iii), in addition to reflecting the balloon payment in 
the projected payments table.
    ii. If the creditor elects to disclose the construction and 
permanent phases as a single transaction, the repayment schedule must 
be disclosed pursuant to appendix D, part II.C.2. Under appendix D, 
part II.C.2, the projected payments table must reflect the interest-
only payments during the construction phase in a first column, followed 
by the appropriate column(s) reflecting the amortizing payments for the 
permanent phase. The creditor determines the amount of the interest-
only payment to be made during the construction phase using the 
assumption in appendix D, part II.A.1.
* * * * *

Appendices G and H--Open-End and Closed-End Model Forms and Clauses

    1. Permissible changes. Although use of the model forms and clauses 
is not required, creditors using them properly will be deemed to be in 
compliance with the regulation with regard to those disclosures. 
Creditors may make certain changes in the format or content of the 
forms and clauses and may delete any disclosures that are inapplicable 
to a transaction or a plan without losing the Act's protection from 
liability, except formatting changes may not be made to model forms and 
samples in H-18, H-19, H-20, H-21, H-22, H-23, H-24, H-25, H-26, H-27, 
H-28, G-2(A), G-3(A), G-4(A), G-10(A)-(E), G-17(A)-(D), G-18(A) (except 
as permitted pursuant to Sec.  1026.7(b)(2)), G-18(B)-(C), G-19, G-20, 
and G-21, or to the model clauses in H-4(E), H-4(F), H-4(G), and H-
4(H). Creditors may modify the heading of the second column shown in 
Model Clause H-4(H) to read ``first adjustment'' or ``first increase,'' 
as applicable, pursuant to Sec.  1026.18(s)(2)(i)(C). The rearrangement 
of the model forms and clauses may not be so extensive as to affect the 
substance, clarity, or meaningful sequence of the forms and clauses. 
Creditors making revisions with that effect will lose their protection 
from civil liability. Except as otherwise specifically required, 
acceptable changes include, for example:
    i. Using the first person, instead of the second person, in 
referring to the borrower.
    ii. Using ``borrower'' and ``creditor'' instead of pronouns.
    iii. Rearranging the sequences of the disclosures.
    iv. Not using bold type for headings.
    v. Incorporating certain State ``plain English'' requirements.
    vi. Deleting inapplicable disclosures by whiting out, blocking out, 
filling in ``N/A'' (not applicable) or ``0,'' crossing out, leaving 
blanks, checking a box for applicable items, or circling applicable 
items. (This should permit use of multipurpose standard forms.)
    vii. Using a vertical, rather than a horizontal, format for the 
boxes in the closed-end disclosures.
* * * * *

Appendix H--Closed-End Forms and Clauses

* * * * *
    16. Samples H-13 through H-15. These samples illustrate various 
closed-end transactions. Samples H-13 and H-15 are for transactions 
subject to Sec.  1026.17(a). Samples H-13 and H-15 do not illustrate 
the requirements of Sec.  1026.18(c) or (p) regarding the itemization 
of the amount financed and a reference to contract documents. See form 
H-2 for a model for these requirements.
* * * * *
    19. Sample H-15. This sample illustrates a graduated payment 
transaction subject to Sec.  1026.17(a) with a 5-year graduation period 
and a 7\1/2\ percent yearly increase in payments. The loan amount is 
$44,900, payable in 360 monthly installments at a simple interest rate 
of 14.75%. Two points ($898), as well as an initial guarantee insurance 
premium of $225.00, are included in the prepaid finance charge. The 
guarantee insurance premiums are calculated on the basis of \1/4\ of 1% 
of the outstanding principal balance under an annual reduction plan. 
The abbreviated disclosure permitted under Sec.  1026.18(g)(2) is used 
for the payment schedule for years 6 through 30. The prepayment 
disclosure refers to both penalties and rebates because information 
about penalties is required for the simple interest portion of the 
obligation and information about rebates is required for the guarantee 
insurance portion of the obligation.
* * * * *
    29. Model Form H-29. Model form H-29 contains the disclosures for 
the cancellation of an escrow account established in connection with a 
closed-end transaction secured by a first lien on real property or a 
dwelling.
    i. This model form illustrates the disclosures required by Sec.  
1026.20(e).
    ii. A creditor or servicer satisfies Sec.  1026.20(e) if it 
provides model form H-29 or a substantially similar notice, which is 
properly completed with the disclosures required by Sec.  1026.20(e).
    iii. Although creditors and servicers are not required to use a 
certain paper size in disclosing the information under Sec.  
1026.20(e), model form H-29 is designed to be printed on an 8\1/2\ x 1- 
inch sheet of paper. In addition, the following formatting techniques 
were used in presenting the information in the model form to ensure 
that the information is readable:
    A. A readable font style and font size (10-point minimum font 
size);
    B. Sufficient spacing between lines of the text;

[[Page 80365]]

    C. Standard spacing between words and characters. In other words, 
the text was not compressed to appear smaller than 10-point type;
    D. Sufficient white space around the text of the information in 
each row, by providing sufficient margins above, below and to the sides 
of the text;
    E. Sufficient contrast between the text and the background. 
Generally, black text was used on white paper.
    iv. While the regulation does not require creditors or servicers to 
use the above formatting techniques in presenting information in the 
tabular format (except for the 10-point minimum font size requirement), 
creditors and servicers are encouraged to consider these techniques 
when deciding how to disclose information in the notice to ensure that 
the information is presented in a readable format.
    v. Creditors and servicers may use color, shading and similar 
graphic techniques with respect to the notice, so long as the notice 
remains substantially similar to model form H-29.
    30. Standard Loan Estimate and Closing Disclosure forms. Forms H-
24(A) through (G), H-25(A) through (J), and H-28(A) through (J) are 
model forms for the disclosures required under Sec. Sec.  1026.37 and 
1026.38. However, pursuant to Sec. Sec.  1026.37(o)(3) and 
1026.38(t)(3), for federally related mortgage loans forms H-24(A) 
through (G) and H-25(A) through (J) are standard forms required to be 
used for the disclosures required under Sec. Sec.  1026.37 and 1026.38, 
respectively.

    Dated: November 20, 2013.
Richard Cordray,
Director, Bureau of Consumer Financial Protection.
[FR Doc. 2013-28210 Filed 12-30-13; 8:45 am]
BILLING CODE 4810-AM-P