Elimination of yield spread premiums

Consider an MLB arranging a RESPA loan. The MLB negotiates an interest rate for the loan in excess of the lender’s par rate, the rate at which lenders fund loans. In exchange, the MLB receives the dollar value of the yield spread premium from the lender, which was never disclosed to the buyer who will pay for it.

Later, the borrower discovers the MLB received the yield spread premium because of the interest rate negotiated for the loan. The borrower claims the yield spread premium is a kick-back, and in violation of RESPA since it was not a payment of a fee for any service rendered by the MLB.

The MLB claims the yield spread premium did not violate RESPA since it was payment for services rendered selling the loan to the lender, not packaging the loan for transmittal to the lender. [Culpepper v. Inland Mortgage Corporation (1998) 132 F3d 692]

Is a yield spread premium an illegal kickback and in violation of RESPA regulations?

Up until the Dodd-Frank TILA amendments, the legality of yield spread premium arrangements had been considered on a case-by-case basis since the terms and conditions under which a lender paid the broker a yield spread premium may or may not have been categorized as a kickback. [Culpepper v. Irwin Mortgage Corporation (2001) 253 F3d 1324]

The Real Estate Settlement Procedures Act (RESPA) and the Truth in Lending Act (TILA) now explicitly prohibit a mortgage loan broker from receiving any fees which are:

  • calculated based on any terms of the loan other than the principal;
  • from the borrower and any other source (read: the lender); or
  • from the lender or borrower that are not disclosed to the borrower.

This puts receipt of the yield spread premium by an MLB outside the parameters of the law — illegal income. Most all borrowers are totally unaware of yield spread premiums being paid to MLBs in the first place, let alone the premium’s impact on what they will pay over the term of their loan. [15 U.S. Code 1602 §129B; for more information regarding consumer protection in the Truth in Lending Act, see the October 2010 first tuesday Legislative Watch.]

A shift in income generation for MLBs

 

The government has moved to correct consumer protection oversight and require strict, timely disclosure of all financial arrangements surrounding a mortgage RESPA loan transaction. MLBs will also have to meet rigorous endorsement regulations and educational requirements if they are to continue originating RESPA loans. [For more information regarding RESPA mortgage broker endorsement, see the July 2010 first tuesday article, Endorsement requirements for RESPA mortgage brokers.]

In the past, mortgage loan brokers have had incentive to negotiate loans with higher interest rates since they earn more compensation for themselves from lenders. Elimination of the yield spread premium as a source of MLB income leaves the MLB without conflict to seek out the best possible rates for homebuyers.

MLBs who want to be successful will scale up their business to handle a greater amount of loans and receive less from each.

However, this also means earnings won’t be nearly as juicy as they were during the recent boom years with yield spread premiums that too often resembled a king’s ransom. MLBs could make upwards of $10,000 on a single RESPA loan transaction. Now, MLBs have an altered expectation of their income for individual loan transactions, and will need to handle a larger volume of loans to maintain their past income and living standards. Worse yet, loan amounts are one-half the amounts of loans originated in the 2004 to 2007 period.

In other words, MLBs who want to be successful will scale up their business to handle a greater amount of loans and receive less from each. The efficient and highly productive will absolutely survive.

Future business of loan origination

As the real estate market slowly creeps toward recovery and increasing employment inches consumer confidence upward, an increasing number of homebuyers will enter the market and need the MLB as an advocate to act as their agent and ensure they properly finance their home purchase or refinance at the best rate and charges available.

The role of an MLB is paramount in the reshaping of a more responsible and honest real estate environment redesigned to educate borrowers investing in long-term homeownership.