May 26, 2023
By: Stephanie Shea
The Economic Growth, Regulatory Relief, and Consumer Protection Act of 2018 amended TILA to require the CFPB to issue rulemaking addressing Property Assessed Clean Energy (PACE) loans. Specifically, the Act required the CFPB to apply TILA’s ability-to-repay (ATR) requirements to PACE loans and to apply TILA’s civil liability provisions to a PACE lender’s violation of those ATR requirements.
This month, the CFPB issued a proposed rule, starting this PACE loan rulemaking process. 88 FR 30388. In that proposal, the CFPB proposes not only to revise Regulation Z’s ATR rules to address PACE loans, but also proposes quite a few other significant changes, some of which will impact other creditors. The comment period ends July 26, 2023.
PACE Loans Are Reg Z-Covered Credit. The first other significant proposed change pertains to the plethora of disagreement over whether PACE loans meet Regulation Z’s definition of “credit.” The root of this disagreement is a comment in Regulation Z that excludes “tax liens” and “tax assessments” from its definition of “credit.” PACE loans cover the costs of home improvements that result in a tax assessment on the consumer’s real property. Accordingly, since PACE loans result in a tax assessment and since Regulation Z’s commentary excludes “tax assessments” from coverage, at least some PACE lenders take the position that PACE transactions are not TILA/Regulation Z-covered credit. To make clear its position that PACE transactions are TILA/Regulation Z-covered credit, the CFPB proposes to revise that commentary to only exclude involuntary tax assessments, not the tax assessments that arise from voluntary PACE transactions.
PACE-Specific TRIDs. The second other significant proposed change is that the CFPB is proposing to revise the Loan Estimate and Closing Disclosure to more effectively disclose information about PACE transactions, given their unique nature.
ATR. Under the ATR rule, creditors must consider the consumer’s monthly payment for “mortgage-related obligations.” The CFPB proposes to revise the definition of “mortgage-related obligations” to make perfectly clear that when considering the consumer’s monthly payment for mortgage-related obligations, creditors must include payments for pre-existing PACE transactions. Switching gears, one component of the general ATR standard is that creditors must make their ATR determination based on information they’ve verified from reasonably reliable records. The CFPB proposes to make clear that a creditor does not meet this verification requirement if (i) it knows or has reason to know that a consumer has an existing PACE transaction, (ii) it relies on information a governmental organization provides, either directly or indirectly, and (iii) that information does not reflect the PACE transaction. For example, what if a consumer informs the creditor of the PACE transaction in the application materials? With this proposed revision, a creditor could not fulfill the requirement to verify the consumer’s property taxes solely using property tax records or property tax information in a title report that does not include the existing PACE transaction.
Sticking with the ATR rule for another moment, the CFPB is also proposing that PACE transactions would not qualify for any of the Qualified Mortgages. Last, in extremely simplified terms, the CFPB is proposing to revise the rules surrounding the consideration of monthly escrow payments to include any monthly escrow payments resulting from the PACE transaction plus a cushion, if applicable.
HOEPA & Periodic Statements. The CFPB is also requesting comment on whether it needs to revise any of the Home Ownership and Equity Protection Act (HOEPA) rules in Regulation Z so that they apply to PACE transactions that meet the definition of a high-cost mortgage in Regulation Z. Furthermore, the CFPB proposes to exempt PACE transactions from the mortgage periodic statement requirements.
Buchalter is a leading nationally recognized financial services and consumer financial services/mortgage regulatory law firm, having served large, medium and small institutions for over 90 years. Our Consumer Financial Services and Mortgage Regulatory Industry Group provides counseling and analysis across the wide range of regulatory and compliance issues facing such institutions, such as those raised by this development. Creditors can reach out to any members of the Consumer Financial Services and Mortgage Regulatory Industry Group for assistance.
This communication is not intended to create or constitute, nor does it create or constitute, an attorney-client or any other legal relationship. No statement in this communication constitutes legal advice nor should any communication herein be construed, relied upon, or interpreted as legal advice. This communication is for general information purposes only regarding recent legal developments of interest, and is not a substitute for legal counsel on any subject matter. No reader should act or refrain from acting on the basis of any information included herein without seeking appropriate legal advice on the particular facts and circumstances affecting that reader. For more information, visit www.buchalter.com.