The Fed's New Rule on Originator Compensation: Confusion City
Come April 1, a new set of rules governing the compensation of loan originators comes into play. Loan originators are mortgage brokers, and loan officers (LOs) working for brokers or lenders. They are the individuals that borrowers deal with; they take the loan application and shepherd the borrower through the process.
I wrote about the new rules when they were first announced in 2009, but a current re-reading indicates that I didn’t get to the bottom of it at that time. This week, I decided to take another look with the help of a “Compliance Guide” recently issued by the Fed, which helps clarify both what the Fed is looking for and where it is muddled.
Defining Lenders and Brokers
The rules hit brokers and lenders differently, so it is important to know the difference. Lenders are entities that close loans with their own or borrowed funds, and either hold them in their portfolios or sell them in the secondary market. Brokers deliver loan packages to lenders who close and fund the loans. Some firms close loans in their own name and immediately sell them to the lender who provides the funding, a process called “table-funding”. They are defined as brokers.
The New Core Rule
The core rule that will come into play on April 1 “prohibits a creditor or any other person from paying, directly or indirectly, compensation to a mortgage broker or any other loan originator that is based on a mortgage transaction's terms or conditions, except the amount of credit extended.” The purpose of the rule is to eliminate any incentive for originators to select loans that carry larger payments to the originator.
Understanding how this will work, or how it might not, requires an understanding of how originators are compensated, and how mortgage price information is provided to them.
The Rule As It Applies to Lenders
LOs working for lenders receive retail prices for all loan products, and are paid a commission that is included in the price. For example, on a 30-year FRM, the LO’s price sheet might show 4.875% at 1 point, 5% at zero points, and 5.25% at -1 point, which is a rebate from the lender. The LO might be paid a commission of .70%, of the loan, which means that he makes more on larger loans. This has long been customary and is permitted by the new rules.
What is not permitted under the new rules is for the LO to sell the customer the 5.25% loan and be rewarded by the lender with a larger commission. This has long been the practice in mortgage banking, with the higher price referred to as the “overage.” The new rules don’t make overages illegal, but since LOs can’t be rewarded for them, they might as well be illegal. The result will be an important and much overdue change in industry practice. Some lenders in anticipation of the new rules have already eliminated overages.
A Potential Evasion by Lenders
However, the rule is consistent with a lender response that would leave borrowers no better off, and perhaps worse off. Suppose a lender has an LO Smith who is a major producer and expects compensation of 1%, and another LO Jones who is a neophyte willing to accept .5%. The lender in such case could provide Smith with a set of retail prices that are .5% higher than those provided to Jones. The compensation of both LOs would be independent of the prices they offer borrowers, and therefore in compliance with the rules.
But this arrangement would violate its intent and spirit. The hapless borrower would be protected against any one LO attempting to gouge him for an overage, but would have no basis for choosing between different LOs offering different prices except by price shopping. Forcing borrowers to shop not only different lenders but different LOs working for the same lender would not make life easier for them.
Note that I am not forecasting that lenders will do this, only that they might without breaking the rules.
The Rule As it Applies to Brokers
In contrast to LOs working for lenders, brokers receive wholesale prices from the lenders they deal with, which means that there is no commission embedded in the price. For example, on a 30-year FRM, the broker’s price sheet might show 4.625% at 1 point, 4.75% at zero points, 5% at 1 point rebate from the lender, and 5.25% at 2 points rebate.
Brokers can pass the wholesale price on to the borrower and charge the borrower a fee for their services. For example, they could offer 4.75% at zero points and charge 1.5 points directly to the borrower. The much more common practice, however, is to quote a higher rate and retain the rebate as their compensation. This would be 1 point on the 5% loan or 2 points on the 5.25% loan. Rebates when retained by the broker are referred to as “yield spread premiums”, or YSP.
Note that YSP is not the counterpart of overage. The LO has a commission built into the price, and an overage is extra compensation. In contrast, YSP is the broker’s entire commission if no fee is paid by the borrower, which is usually the case. Of course, YSP can be reasonable, and it can also be outrageous.
The application of the new rules to brokers is clear in one respect. Brokers can be paid by the lender or the borrower but not by both. The real issue, however, is how it deals with YSP, and on that score the rules are hopelessly muddled.
The YSP Muddle
Since the new rules say very clearly that compensation to a broker cannot be based “on a mortgage transaction's terms”, and since YSP is based on the rate, it would seem to follow that YSP must be illegal. And if that is the case, brokers thenceforth could be paid only by borrowers.
Yet if one reads further into the rule, it is clear that it is not the Fed’s intent to make all YSP illegal. If they wanted to do that, they could have done it very simply by a rule that says so. The rule that the broker can’t be paid by both the lender and the borrower clearly suggests that in the Fed’s eyes, the broker can be paid by the lender. Since all such payments constitute YSP, the Fed has accepted the legitimacy of YSP.
An example of a broker being paid by a lender in the Fed’s Compliance Guide reveals the source of the Fed’s confusion.
“For example, suppose that for a loan with a 5 percent interest rate, the originator will receive a payment of $1,000 from the creditor as compensation, and for a loan with a 6 percent interest rate, a yield spread premium of $3,000 will be generated. The originator must apply the additional $2,000 to cover the consumer's other closing costs.”
The Fed is assuming here that the broker is receiving a base payment of $1,000 from the lender, similar to the LO commission that is built into the retail price, and that YSP is an extra payment, comparable to an overage. But this is wrong, brokers are quoted wholesale prices, there is no base payment to the broker embedded in wholesale prices. All payments received by brokers from lenders are YSP. The $1,000 on the 5% loan in the Fed’s example is YSP, and since the Fed views it as legitimate, and since there is no rule capping the size of YSP, the $3,000 YSP must be equally legitimate.
Industry Reactions to the Muddle
I have come across two possible responses from the industry if the existing muddled rule becomes effective. One is for brokers to charge their entire fee to borrowers, and credit any YSP to the borrower to cover other settlement costs. The borrower would decide on the tradeoff between the rate and the YSP. In my view, that would be a good outcome for borrowers.
Another possible response that would be terrible for borrowers, yet consistent with the rules, is for brokers to post a fixed YSP with each lender that would set the broker’s compensation with that lender. If the broker posted 1% YSP with lender A, 2% with lender B and 3% with lender C, the broker could charge what he can induce the borrower to pay by selecting the lender that provides the desired level of compensation. This is obviously a flagrant violation of the intent of the rules, since it would sanction the very worst broker practices.
Resolving the Muddle
Rules are badly crafted when they can be interpreted in highly divergent ways, some of which are favorable to borrowers and some of which would make their plight worse. In my view, the Fed should delay implementation until they get it right.
Thanks to Kevin Iverson for helpful comments.