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Wells Fargo distributes new settlement agent memo

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Wells Fargo circulated a new Settlement Agent Communication on December 15, addressing several points that may be of interest to South Carolina closing attorneys. 

  • The Seller Closing Disclosure must be delivered to Wells Fargo prior to closing, and Wells’ performance reports of settlement agents will soon include proper receipt of the Seller CD.
  • Wells Fargo is adamant that the Borrower Closing Disclosure must be the form provided to the closing attorney by the lender. Wells will not tolerate substitutions or additions to the Borrower CD.
  • Closing attorneys are encouraged to communicate with the lender before, during and after closing to insure the accuracy of signing and disbursement dates on the borrower CD.
  • Closing attorneys are instructed to refrain from adding per diem interest charges in the payoff calculations of a Wells Fargo first mortgage when that mortgage is being refinanced with Wells. These payoffs will be net funded and will be the responsibility of the lender.
  • When a title insurance policy is delivered to the lender electronically, there is no need to also provide a paper copy.

The memo also contained a brief RESPA update indicating that despite the July 11 ruling against the CFPB by the D.C. Circuit Court of Appeals in the PHH Corp. v. CFPB case, Wells will continue to adhere to the 2015 bulletin distributed by the CFPB indicating Marketing Service Agreements are in disfavor.

New Settlement Agent Communication from Wells Fargo

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Seller CD must be provided to Wells prior to disbursement

Wells Fargo communicated with its settlement agents (closing attorneys in South Carolina) by memo dated September 22. In case you missed it, you can read it in its entirety here.

The biggest news is that Wells will now require a copy of the seller Closing Disclosure along with the other documents required prior to disbursement. Apparently, receipt of the seller CD has been a challenge, necessitating the procedural modification.

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Another challenge has been the process for handling changes to the borrower’s CD. The memo stated that any changes known prior to closing, including changes to the closing numbers, the closing date and the disbursement date, must be communicated to the Wells Fargo closer.  Wells Fargo’s closer will provide an updated borrower CD and any other updated documents for closing.

Any changes detected at or post-closing should be communicated to:  SAPostClosingCommunications@wellsfargo.com.

The memo also discussed the phased rollout in progress for delivering training materials and other support for the use of Closing Insight™.  We encourage closing attorneys to read and comply with this information to avoid being left out when this process is fully implemented.

Good News From ALTA

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CFPB said lenders can’t “unilaterally” shift TRID liability

lane shiftIn news that will be well received by South Carolina residential closing attorneys, ALTA reported on April 8 that CFPB Director Richard Cordray stated that lenders may not unilaterally shift liability for errors on TRID mortgage disclosures to third parties.

The report indicates that U.S. Senator Robert Corker of Tennessee had written a letter to Director Cordray asking whether creditors, acting alone, may shift liability to settlement agents for Closing Disclosure errors. Director Cordray responded in writing, “While creditors may enter into indemnification agreements and other risk-sharing arrangements with third parties, creditors cannot unilaterally shift their liability to third parties and, under the Truth in Lending Act, alone remain liable for errors on the Know Before You Owe mortgage disclosures.”

ALTA’s report further states that Director Cordray wrote that lenders and settlement agents are free to decide how to divide the responsibility and risk when implementing the new requirements through contracts.

stay tunedWe have heard from closing attorneys across South Carolina that lenders are taking varying approaches in their attempts to shift or share TRID liability with closing attorneys. We caution closing attorneys to read letters and closing instructions carefully and to negotiate or strike objectionable provisions. Pay particular attention to provisions that would violate attorney ethical obligations. Don’t agree, for example, that client confidences will be revealed to creditors.

Who You Gonna Call?

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Even five months into TRID implementation, there is still confusion about
who is allowed to receive the CD and Closing Statement

paperwork confusionWe’re all crystal clear that the borrower must be provided with the new CFPB compliant Closing Disclosure. We’re clear that there are very specific rules about when that document must be delivered to facilitate the scheduled closing. We know that most of the large national lenders are preparing and delivering the Closing Disclosure themselves while many of the local and regional lenders are still relying on closing attorneys to prepare and deliver this document.

What remains uncertain in some areas is how to deliver the necessary closing numbers to real estate agents, sellers and, when it comes to seller numbers, to lenders.

Real Estate Agents: There is no doubt that real estate agents need the numbers. They typically provide valuable guidance to their buyer clients on the accuracy of the numbers in advance of and during closings. They are also required to retain copies of closing statements in their files. But the Closing Disclosure now contains much more information than the HUD-1 Settlement Statement, and it is a common belief that delivery by a lender or closing agent to a real estate agent violates the buyer’s right to protection of personal information.

What is the solution?  There are two lines of thought. Some believe the buyer should sign a waiver allowing the lender and settlement agent to provide the Closing Disclosure to the buyer’s real estate agent. Several lenders, however, have stated that they will not act on waivers of this type.

The other line of thought is that the real estate agents (both the buyer’s agent and the seller’s agent) can be provided with a closing statement without violating anyone’s privacy. All of the closing software programs have closing statements available for this purpose. American Land Title Association has created forms for this reason, and most lawyers also have versions they have previously used for commercial and residential cash transactions.

Real estate lawyers in South Carolina need to prepare separate closing statements regardless of this dilemma. Our Supreme Court has made it clear that all the numbers in a closing must be properly disclosed to the parties. It took many of us months to wrap our brains around the fact that a Closing Disclosure does not contain all the numbers. It is not a closing statement and it is not a replacement for the HUD-1. It is also not a document from which we can disburse. We need a settlement statement that balances to a disbursement analysis to assure that our numbers are correct.

Sellers: The seller should be provided with the seller’s Closing Disclosure, which is prepared by the settlement agent and not the lender. But, again, this document does not reveal all of the numbers relevant to the closing, so the seller should also be provided with a settlement statement.

Lenders (as to Seller’s numbers): We have heard that lenders are having difficulty obtaining seller information from closing attorneys, but under TRID, settlement agents are obligated to provide the seller’s information to the lender. Lenders need this information to test the accuracy of the buyer’s information, for audit purposes and to be able to provide proper information to investors.hang in there

Five months out, we are all still working our way through TRID, and we will continue to work our way through the various issues as they arise. South Carolina lawyers can rely on friendly real estate lawyers on the Bar’s Real Estate Practices Section ListServ, which can be found here. And title insurance companies continue to obtain and disseminate information as issues arise. We’ll get through it!

National Association of Realtors® Reports on TRID Survey

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Real estate practitioners should expect changes in contracts

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The Research Department of the National Association of Realtors® surveyed members in August about their awareness and preparation for the changes in residential closings being implemented by the Consumer Financial Protection Bureau in October of 2015. The most dramatic change is eliminating the current disclosure forms in favor of a Loan Estimate and Closing Disclosure, collectively called the TILA RESPA Integrated Disclosures (TRID).

The results of the survey were detailed in an Executive Summary entitled “TRID: REALTORS® and the New Closing Process”.

The best news from the report is that 71.2% of the respondent members rated their level of preparedness as average or better. Many stated they are taking action and working with their industry partners to prepare for a smooth transition. More than 80% of respondents indicated they have taken some form of TRID training.

Dirt lawyers should expect to see changes in residential form contracts. More than half of respondents indicated they will adjust contracts to reflect longer closing time frames, and almost a third indicated they plan to adjust contracts to include new contingencies.

Take a look at the following chart for more information on how Realtors® plan to deal with the new rules.

NAR Realtors Chart

Although it is anticipated that the changes may introduce new burdens on lenders, closing attorneys and REALTORS®, many of the respondents indicated the number of delayed closings has been low in the past, and they will continue to work with their industry partners to help make the transition smooth.

Real estate lawyers who have not reached out to their REALTOR® contacts should do so soon and often to assist with the transition!

ALTA Approves “Model” Settlement Statements

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paperworkThe more we delve into the intricacies of the new Closing Disclosure (“CD”), the more we recognize that we will not be able to disburse directly from this form when the new rules take effect later this year. A separate document will be needed to prove that receipts and disbursements match in each closing file.

Many commercial closing attorneys have developed their own buyer’s and seller’s closing statement and matching disbursement analysis forms, but many residential closing attorneys have relied primarily on the HUD-1 closing statement. In addition, some closing attorneys have voiced concern that the required treatment of title insurance premiums on the CD (showing the full cost of the loan policy despite the fact that we have a simultaneous issue rate) creates the need for a separate form that will accurately reveal the cost of title insurance.

To answer the need for new forms, the American Land Title Association (ALTA) board adopted four new model settlement statements in May:

  • ALTA Settlement Statement Combined;
  • ALTA Settlement Statement Seller;
  • ALTA Settlement Statement Borrower/Buyer; and
  • ALTA Settlement Statement Cash.

The documents may be downloaded from ALTA in Excel, Word and PDF formats. The closing software companies should also have versions in their systems.

At least one bank has addressed the use of the ALTA model settlement statements. Bank of America was asked whether it would require the use of the ALTA model forms, and it stated in a June 9 memo that it prefers the ALTA model if a closing attorney chooses to use a settlement statement to supplement the CD, but specified that the settlement statement figures must reconcile to the CD and a copy of the settlement statement must be provided to the bank. The bank also stated that all revisions to fees and costs will require bank approval and an amended CD. In other words, closing attorneys will not be allowed to revise fees and costs by simply supplementing the CD with a settlement statement.

We expect other banks may make similar statements as implementation approaches.

Another Lender Communication to Settlement Agents…

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… And a denial from the CFPB.

newsBank of America answered several frequently asked questions from settlement agents by memo dated June 9.

Significantly, BofA indicated that agents will not be allowed to accept its title or closing orders if they are not registered with Closing Insight™. Because BofA and several other lenders will require Closing Insight™,  South Carolina closing attorneys who have not yet registered should follow this link to do so.

Asked whether BofA will require the use of ALTA model settlement statements, the bank responded that it prefers the ALTA model form if a closing attorney chooses to use a settlement statement to supplement the Closing Disclosure (“CD”), but specified that the settlement statement figures must reconcile to the CD and a copy of the settlement statement must be provided to BofA. The memo also stated that all revised fees and costs will require both bank approval and an amended CD. In other words, fees and costs cannot be revised by simply supplementing the CD with a settlement statement.

ALTA’s settlement statements are available for review and use at this link.

The memo confirmed our thinking that separate CDs will be provided to the buyer and the seller. BofA added that the buyer and seller will not sign the same form nor see the contents of the other party’s CD. Further, BofA will instruct the closing attorney to prepare and deliver the seller’s CD and to provide copies of CDs to the real estate agents.

Finally, the bank clarified its process for making post-disbursement fee modifications. If the closing attorney identifies the need for a change in the numbers reflected on the CD, the attorney must request that the “collaboration session” be reopened in Closing Insight™, and the bank will review the update made by the attorney to determine whether a revised CD is necessary. The party in possession of any excess funds will be responsible for sending the funds to the buyer/borrower, while BofA will prepare and send the revised CD to the buyer/borrower. The closing attorney will be responsible for revising and delivering the seller’s revised CD, if necessary.

cfpb-logoIn related news, on June 3, the CFPB released a fact sheet in response to “much information and mistaken commentary” surrounding perceived closing delays that will be caused by the implementation of the new rules. The CFPB denied that the new CDs will delay closings “for just about everybody.” In response to the belief that any change in the CD will cause a new 3-day review period, the CFPB clearly stated that only the following matters will trigger an additional 3- day wait:

  1. The new APR (annual percentage rate) increases by more than 1/8 of a percent for fixed-rate loans or ¼ of a percent for adjustable loans. A decrease in the APR will not require a new 3-day review if it is based on changes to interest rate or other fees.
  2. A prepayment penalty is added, making it expensive to refinance or sell.
  3. The basic loan product changes, such as a switch from fixed rate to adjustable interest rate or to a loan with interest-only payments.

The following circumstances will not require a new 3-day review, according to the fact sheet:

  1. Unexpected discoveries on a walk-through such as a broken refrigerator or a missing stove, even if they require seller credits to the buyer.
  2. Most changes to payments made at closing, including the amount of the real estate commission, taxes and utilities proration, and the amount paid into escrow.
  3. Typos found at the closing table.

The CFBP’s denial notwithstanding, we are all naturally concerned about other matters that will cause delays during the transition period, particularly the steep learning curve that must be overcome by everyone involved in closings. But we will all work hard to get through the transition period together! We’re predicting that closings will be much smoother by the beginning of 2016.

BB&T Follows the Lead of Other Large Lenders

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It will produce and deliver Closing Disclosures

BB&T logo 2BB&T announced on May 26 that it will be responsible for completing and delivering borrowers’ Closing Disclosures after the Consumer Financial Protection Bureau’s (CFPB’s) TILA-RESPA Integrated Mortgage Disclosures (TRID) rule becomes effective on August 1.

By making this announcement, BB&T joins Bank of America, Chase, Citi, Wells Fargo, SunTrust and Freedom Mortgage in removing the responsibility for preparing the borrower’s settlement statement from the hands of settlement agents (closing attorneys in South Carolina). Closing attorneys will prepare the seller’s CD as well as other forms necessary for disbursement. It is clear that the borrower’s CD will not contain sufficient information for disbursement, which will continue to be the responsibility of the closing attorney.

Like the other lenders, BB&T confirmed in its announcement that it will continue to work with closing attorneys to determine the fees and other information required for the Closing Disclosure.

stay tunedBB&T also announced, like several other large lenders, that it will use the web-based portal, Closing Insight™, to gather the information and data required to complete the CD. Closing attorneys were encouraged to register with Closing Insight™ immediately.

BB&T promised to provide further communications and training to settlement agents prior to August 1.

Heads Up Residential Dirt Lawyers: Use Engagement Letters!

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August 1 changes will make them even more important.

Lenders will no doubt be more in control of the closing process when the CFPB rules take effect in August. Several major lenders have announced that they will produce and deliver the borrower’s Closing Disclosure, the form that will replace the HUD-1. This form will be delivered to borrowers at least three business days prior to closing. This change may limit the closing attorney’s involvement with clients early in the closing process.

house parachuteResidential real estate lawyers will need to use engagement letters more than ever to establish that important attorney-client relationship, to explain the new closing environment and to quote fees and costs. These matters are too crucial to leave in the hands of lenders!

Also, a major change in the treatment of owner’s title insurance by the CFPB will require that attorneys explain the importance of the one document in the stack of closing papers that protects the purchaser. An engagement letter sent early in the process is the ideal place for this essential explanation. The closing table may be too late!

The CFPB will require that the full premium, not the discounted simultaneous issue premium, must be disclosed for the loan policy on the CD. The owner’s policy premium will be shown in the “Other” section of the CD and will be reflected as “Optional”.  The cost of the owner’s policy will be the total premium discounted by the cost of the loan policy and adding the simultaneous issue premium.  Some lenders may even show the full premium for the owners and loan policies on page two of the CD and a “rebate” for the discount on page 3. Confusing?  Definitely!

Purchasers strapped for funds may be tempted to skip this “optional” charge. Attorneys will need to explain how title insurance protects their clients. Savvy attorneys realize that owner’s title insurance protects them, too. It has even been suggested that it may be malpractice for an attorney not to recommend owner’s title insurance.

In this environment, I’m providing my dirt lawyer friends with a couple of paragraphs that can be edited to explain the importance of owner’s title insurance in engagement letters:

house protection hands“Title insurance protects the ownership of your home. The purchase of a home may be the largest transaction you’ll make during your lifetime. For a relatively low, one-time premium of $____, you can be protected against legal problems over property rights that could cost thousands of dollars, and even result in the loss of your home.

Lender’s title insurance is required for this transaction, but it does not protect your equity. You must purchase owner’s insurance for that valuable protection. We will perform a title examination for you, but the most thorough and competent title examination cannot protect against loss from hidden title defects created by misfiling and misindexing in the public records. Risks not created in the public records, such as fraud and forgery, are also covered by title insurance. Dollar for dollar, an owner’s title insurance policy is one of the most cost effective forms of insurance available to homeowners. I highly recommend that you purchase an owner’s policy and will make it available to you unless you let me know otherwise.”

When the closing process changes, let’s make sure important relationships are established and clients are protected early in the closing process!

Three New Lender Announcements in Early May

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They keep rolling in as August 1 approaches!

town crierWe’re 60 business days away from implementation of TRID, and lenders continue to make announcements about how they will approach the closing process in the new environment. I am committed to keeping South Carolina closing attorneys informed about these continuing revelations, so here is a synopsis of the most recent developments.

Freedom Mortgage announced on May 7 that it will prepare and deliver the borrower’s Closing Disclosure and will employ Closing Insight™ as its method of exchanging information with settlement agents (closing attorneys in South Carolina). Other methods of exchanging information (e-mail, fax) will no longer be used, and closing attorneys were encouraged to sign up for this information portal by visiting www.closinginsight.com.

Chase Mortgage Banking recently repeated that it will deliver the borrower’s CD and will provide a copy of that document in the closing package. The closing attorney will prepare and deliver the seller’s CD and will provide Chase with a copy.

Chase stated it will rely on closing attorneys for transaction numbers such as seller credits, broker’s commissions, seller and purchaser attorneys’ fees, real estate agent bills, external mortgage payoffs, adjustments, prorations, taxes, recording fees and title fees. All of this information should be given to Chase ten days prior to closing.

Chase also stated that it will continue to use encrypted secure email (iSentry and/or Voltage) to provide documents to closing attorneys.

Bank of America announced on May 6 that closing attorneys should register with Closing Insight™, but that registration will not insure a place on BofA’s “Written List of Providers” (WLP). Those interested in being including on the WLP should apply at www.bankofamerica.com/suppliers, but applying does not insure that applicants will be added to the list. BofA representatives will engage prospective candidates for consideration as opportunities for expanding the supplier base become available. Those currently on the WLP do not need to reapply.

BofA also announced that it will absorb the cost of Closing Insight™. To our knowledge, no other lender has made a similar announcement.

It is encouraging that lenders continue to think through their processes and to provide us with additional information. The more knowledge we have up front, the fewer surprises we will experience after August 1. I promise to continue to distribute this news as it is announced to the letstalkdirtsc.com audience.