CUNA Regulatory Comment Call

January 5, 2006

Proposed Guidance on Nontraditional Loans


Please feel free to fax your responses to CUNA at 202-638-7052; e-mail them to Senior Vice President and Associate General Counsel Mary Dunn at and to Senior Assistant General Counsel Jeff Bloch at; or mail them to Mary and Jeff in c/o CUNA’s Regulatory Advocacy Department, 601 Pennsylvania Avenue, NW, South Building, Suite 600, Washington, DC 20004-2601. You may also contact us at 800-356-9655, ext. 6032, if you would like a copy of the proposed guidance, or you may access it here.


In recent years, consumer demand has grown rapidly, particularly in high-priced real estate markets, for mortgage loans that allow borrowers to defer the payment of principal, as well as interest. These nontraditional mortgage loans, which include “interest only” and “payment option” adjustable mortgages, have been available in similar forms for many years. They allow borrowers to pay only the interest on the loan for a fixed period of time. The “payment option” loans, commonly referred to as “option ARMs,” also allow borrowers to pay less than the interest owed, resulting in negative amortization in which the loan balance increases. This allows borrowers to make lower payments during an initial period of time in exchange for higher payments later, as compared to traditional fixed-rate mortgages. These types of loans offer payment flexibility and can be an effective financial tool for certain borrowers.

Financial institutions are also increasingly combining these loans with other practices, such as making second-lien mortgages simultaneously and accepting reduced documentation in evaluating the applicant’s creditworthiness. The federal financial institution agencies are concerned because these practices present unique risks to the institution. The agencies are also concerned because these mortgage products and practices are being offered to a wider spectrum of borrowers, some of whom may not otherwise qualify for traditional fixed-rate or adjustable loans or may not fully understand the risks.

As a result, the agencies have developed the proposed guidance to clarify how financial institutions should offer these loans in a safe and sound manner and in a way that clearly discloses the potential risks that the borrower assumes. The agencies are also prepared to impose remedial actions on institutions that do not adequately manage the risks with regard to these types of loans, and they will seek to consistently implement the guidance.


Loan Terms and Underwriting Standards

When a financial institution offers nontraditional loans, the underwriting standards should address the effect of a substantial payment increase on the borrower’s capacity to repay when loan amortization begins, while also complying with the applicable real estate lending standards, appraisal rules, and related guidelines. These standards should also address the issues below.

Qualification Standards – Nontraditional mortgage loans can result in significantly higher payments once the loan begins to fully amortize, which is commonly referred to as “payment shock.” This is of particular concern with option ARMs in which the minimum payments may result in negative amortization, leading to much higher payments when the loan begins to amortize.

A financial institution’s qualifying standards should recognize the potential impact of this payment shock and that these types of loans are inappropriate for borrowers with high loan-to-value (LTV) ratios, high debt-to-income (DTI) ratios, and low credit scores. The analysis of the borrower’s repayment ability should include an evaluation of his or her ability to repay the debt by final maturity at the fully indexed rate, assuming a fully amortizing repayment schedule. For loans that allow for negative amortization, this analysis should also take into account any loan balance increase that may result from the making of minimum payments. Institutions should also consider the risks the borrower may face if he or she chooses to refinance when the loan begins to amortize, such as any prepayment penalties.

The analysis of the borrower’s repayment ability should not overly rely on credit scores as a substitute for income verification. As the level of credit risks increases, the need to verify the borrower’s income, assets, and outstanding liabilities also increases.

Collateral-Dependent Loans – Institutions should avoid loan terms and underwriting practices that may result in the borrower having to rely on the sale or refinancing of the property once the amortization of the loan begins.

Risk Layering – Nontraditional loans that are combined with “risk-layering” features, such as making a second-lien mortgage simultaneously and/or accepting reduced documentation in evaluating the applicant’s creditworthiness, will pose increased risk. Under these circumstances, the institution should compensate for this additional risk with mitigating factors that support the underwriting process and borrower’s ability to repay, such as higher credit scores, lower LTV and DTI ratios, credit enhancements, and mortgage insurance. Institutions should also consider the affect of these features on estimated credit losses when establishing their allowance of loan and lease losses (ALLL).

Reduced Documentation – Financial institutions are increasingly relying on reduced documentation when making these loans. As the level of credit risk increases, the institution must apply more comprehensive verification and documentation procedures to verify the borrower’s income and the ability to repay the loan. Use of reduced documentation should be governed by clear policy guidelines and should be accepted if there are mitigating factors, such as a lower LTV and more conservative underwriting standards.

Simultaneous Second-Lien Loans – Simultaneous second-lien loans result in reduced owner equity and higher credit risk. Loans with minimal equity should not have a payment structure that allows for delayed or negative amortization.

Introductory Interest Rates – When initial monthly payments are based on low introductory rates, there is a greater potential for negative amortization, increased payment shock, and earlier recasting of the monthly payments than originally scheduled when the loan balance exceeds a certain level, as specified in the loan documents. Financial institutions should minimize the probability of such recastings and extraordinary payment shocks when determining the introductory rate.

Lending to Subprime Borrowers – Mortgage programs that target subprime borrowers should follow the applicable interagency guidance on subprime lending, which for credit unions includes NCUA Letter to Credit Unions 04-CU-13 – Specialized Lending Activities.

Non Owner-Occupied Investor Loans – Borrowers financing non owner-occupied investment properties should be qualified based on the ability to service the debt over the life of the loan, which should include an appropriate LTV ratio that considers the possibility of negative amortization and the ability of the borrower to make payments when the property is unoccupied.

Portfolio and Risk Management Practices

Nontraditional mortgage loans are untested in a “stressed” economic environment and should, therefore, receive higher levels of monitoring and loss mitigation. Institutions making or investing in these types of loans should adopt more robust risk management practices by:

The following provides more information on the appropriate portfolio and risk management practices that financial institutions should develop with regard to nontraditional loans:

Consumer Protection Issues

Although nontraditional mortgage loans provide flexibility for borrowers, the federal financial institution agencies are concerned that consumers are entering into these transactions without fully understanding the terms and that this is exacerbated by marketing practices that emphasize the benefit without providing complete information about the risks. As a result, financial institutions should provide clear and balanced information about the relative benefits and risks, including the risk and consequences of payment shock and negative amortization.

Institutions must also ensure that they comply with applicable laws and rules. With respect to disclosures and other information provided to consumers, this includes the Truth in Lending Act and Regulation Z, as well as Section 5 of the Federal Trade Commission Act, which prohibits unfair and deceptive practices. Institutions must also comply with other fair lending laws, such as the Real Estate Settlement Procedures Act, as well as any applicable state laws. Institutions should monitor these applicable laws and regulations for any changes and should have counsel review their communications and other acts and practices in this area.

The guidance outlines the following recommended practices:

Communications with Consumers – The information should be presented in a clear manner and in a format such that the consumer will notice the information, understand its importance, and be able to use it as part of the decision-making process. This should include focusing on the information important to the decision-making, highlighting key information, employing a user-friendly and readily navigable format, and using plain language with concrete and realistic examples. Comparative tables and information may also be useful. Timing should also be considered, such as providing the information when the consumer is shopping for and deciding on a mortgage and not just at the time the application is submitted. Here is additional guidance regarding consumer communications:

Control Systems – Institutions should develop and use strong control systems to ensure that these actual practices are consistent with their policies and procedures. These systems should address compliance and fair disclosure concerns, as well as safety and soundness considerations. Lending personnel should be trained to convey the information accurately about the terms and risks in a timely and balanced manner. They should also be monitored to determine if they are communicating the information appropriately. Institutions should also review any consumer complaints to identify potential compliance, reputation, and other risks.

(The Fed has specifically requested comment on many of the issues raised in these questions.)

  • Should lenders analyze the borrower’s ability to repay assuming that the borrower only makes minimum payments? What are your current underwriting practices with regard to these types of nontraditional loans and how will they change if the guidance is issued as currently proposed?

  • When would it be appropriate to use the reduced documentation feature commonly referred to as “stated income” for these types of nontraditional loans? What other forms of reduced documentation would be appropriate and under what circumstances would they be appropriate? Under what circumstances would any of these be appropriate for subprime borrowers?

  • Should the consideration of future income be addressed in the guidance? How could this be done on a consistent basis? If income growth is considered, should other factors also be considered, such as an increase in interest rates?

  • With regard to disclosures to consumers, the guidance outlines how the information may be presented in a clear manner, which includes focusing on the information important to the decision making, highlighting key information, employing user-friendly and readily navigable format, and using plain language with concrete and realistic examples. The guidance also suggests providing comparative tables and providing this information at the time the consumer is shopping for the loan, as opposed to when the application is submitted. Will this require significant changes to your disclosures?

  • Will you find this guidance useful? How can it be improved?

  • To what extent do you offer the nontraditional loans that are addressed in the guidance and do you offer these loans with simultaneous second-lien mortgages and/or with reduced documentation requirements? Under what circumstances are these types of loans appropriate for your members?

  • Other comments?

    Eric Richard • General Counsel • (202) 508-6742 •
    Mary Mitchell Dunn • SVP & Deputy General Counsel • (202) 508-6736 •
    Jeffrey Bloch • Assistant General Counsel • (202) 508-6732 •
    Lilly Thomas • Assistant General Counsel • (202) 508-6733 •
    Catherine Orr • Senior Regulatory Counsel • (202) 508-6743 •