[Federal Register Volume 59, Number 242 (Monday, December 19, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-30413] [[Page Unknown]] [Federal Register: December 19, 1994] _______________________________________________________________________ Part IV Department of Housing and Urban Development _______________________________________________________________________ Office of the Assistant Secretary for Housing-Federal Housing Commissioner _______________________________________________________________________ 24 CFR Parts 203 and 3500 Real Estate Settlement Procedures Act, Section 6, Transfer of Servicing of Mortgage Loans and Real Estate Settlement Procedures Act (Regulation X); Escrow Accounting Procedures; Technical Correction; Final Rule DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Office of the Assistant Secretary for Housing-Federal Housing Commissioner 24 CFR Parts 203 and 3500 [Docket Nos. R-94-1538; FR-2942-F-04 and R-94-1688; FR-3255-F-04] RIN: 2502-AG27 Real Estate Settlement Procedures Act, Section 6, Transfer of Servicing of Mortgage Loans (Regulation X); and Real Estate Settlement Procedures Act (Regulation X); Escrow Accounting Procedures; Technical Correction AGENCY: Office of the Assistant Secretary for Housing-Federal Housing Commissioner, (HUD). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This final rule replaces the Interim Rule dated April 26, 1991, and implements the provisions of section 6 of the Real Estate Settlement Procedures Act (RESPA). Most recently, the Riegle Community Development and Regulatory Improvement Act of 1994 provides alternate methods for disclosure of mortgage servicing history. Section 6 also sets forth procedures regarding the transfer of mortgage servicing for any federally related mortgage loan, as defined in section 3 of RESPA and the definition is refined in the implementing regulation for RESPA and 24 CFR 3500.2. Although RESPA was extended by section 908 of the Housing and Community Development Act of 1992 to subordinate liens, in this rule the Secretary has exempted from RESPA's mortgage servicing coverage all federally related mortgage loans that are not secured by a first lien. In addition, the Department has adopted conforming amendments to 24 CFR part 203, the FHA Single Family Mortgage Insurance program. The Department is also publishing a conforming amendment to its final rule on escrow accounting procedures, published on October 26, 1994 (59 FR 53890). This amendment will update a cross-reference in another section of part 3500 that references enforcement of escrow accounting provisions. EFFECTIVE DATE: June 19, 1995. FOR FURTHER INFORMATION CONTACT: David R. Williamson, Director, RESPA Staff, Room 5239, Department of Housing and Urban Development, 451 7th Street SW., Washington, D.C. 20410, telephone (202) 708-4560. The TDD number for hearing-impaired persons is (202) 708-4594. (These are not toll-free numbers.) SUPPLEMENTARY INFORMATION: Paperwork Reduction Act Statement The information collection requirements contained in this rule have been approved by the Office of Management and Budget under section 3504(h) of the Paperwork Reduction Act of 1980 (44 U.S.C. 3504(h)), and assigned OMB control number 2502-0458. Justification for Final Rulemaking--Part 203 In general, the Department publishes a rule for public comment before issuing a rule for effect, in accordance with its own regulations on rulemaking, 24 CFR part 10. However, part 10 does provide for exceptions from that general rule where the agency finds good cause to omit advance notice and public participation. The good cause requirement is satisfied when prior public procedure is ``impracticable, unnecessary, or contrary to the public interest.'' (24 CFR 10.1) The Department finds that good cause exists to publish for effect without first soliciting public comment the sections of this rule that pertain to 24 CFR part 203, and that prior public procedure is unnecessary because those portions of this rule merely conform part 203 to the provisions of Section 6 of the Real Estate Settlement Procedures Act of 1974 (12 U.S.C. 2605) that have been developed through notice and comment rulemaking. Background Section 941 of the Cranston-Gonzalez National Affordable Housing Act (Pub. L. 101-625, approved November 28, 1990) amended the Real Estate Settlement Procedures Act of 1974, 12 U.S.C. 2601 et seq. (RESPA), by adding a new section 6, which addresses mortgage servicing requirements (i.e., the right to collect mortgage payments for principal, interest, and any escrow account items). Section 6 (12 U.S.C. 2605) requires disclosure to certain mortgage loan applicants of historical data regarding the transfer of mortgage servicing, as well as estimates regarding the potential transfer of servicing pertaining to the applicant's mortgage loan and other mortgage loans. Section 6 was further amended on April 10, 1991, by Dire Emergency Supplemental Appropriations Act (Pub. L. 102-27), to create a transition period during which lenders and servicers would not be liable for violations of the Act. This amendment also directed HUD to publish implementing regulations effective no later than April 20, 1991. On April 26, 1991, the Department published an Interim Rule implementing Section 6 (56 FR 19505). That rule remains in effect until it is replaced by this final rule. Section 6 requires that, at the time of application for federally related mortgage loans, applicants be given information in a disclosure statement (hereafter called ``Servicing Disclosure Statement'') concerning the likelihood that the servicing of their mortgage may be transferred and information regarding the history of mortgage servicing transfers of the person making the loan. Section 6 sets forth additional notice requirements at the time of a servicing transfer (hereafter called ``Notice of Transfer'') and other rights for borrowers, and provides for the collection of damages and costs by borrowers from servicers for noncompliance. Finally, section 6 preempts any State law or regulation regarding notice to borrowers at the time of application or servicing transfer, as long as the lender or servicer complies with the relevant provisions of section 6. HUD originally complied with the requirements to promulgate a model disclosure statement and applicant's acknowledgement by publication of a notice in the Federal Register on March 20, 1991 (56 FR 11886). These requirements were restated in an Interim Rule of April 26, 1991 (56 FR 19505). HUD encourages persons covered by this new rule to implement its provisions earlier than its effective date. (The Department also recently published a related rule on escrow accounting procedures under section 10 of RESPA (59 FR 53890, October 26, 1994). Comments on Interim Rule and Responses In the interim rule the Department requested comments on the provisions of the rule. The following is a summary of comments received and HUD's position on the issues in the final rule. Questions Regarding Definitions Business day. There were two comments about the definition of ``business day.'' Both recommended that the definition be put in Sec. 3500.2, so that it would apply to the entire regulation, and that it be the same definition in Regulation X and Regulation Z (Truth in Lending). HUD response. The current RESPA rule defines a ``business day'' utilizing language conforming with the definition in Regulation Z, which implements the Truth in Lending Act. Section 6 of RESPA does not specifically define ``business day'', but in certain provisions excludes public holidays, Saturdays, and Sundays from references to ``days''. To assure uniform statutory construction, as well as to continue uniformity with related Federal regulatory statutes, the Department is applying the ``business day'' definition of the Regulation X in this rule. Therefore, business day means a day on which the offices of the business entity are open to the public for carrying on substantially all of the entity's business functions. If a day is not specified as a business day in this rule, the reference is to a calendar day. Effective date of transfer. There were three comments on this definition. One commenter approved of the definition because the date was pinpointed. Another commenter disagreed and considered the date indefinite, particularly as it relates to delinquent mortgages. The third thought the effective date of transfer should be the date the contract between the parties states that the transfer takes place. HUD response. The term ``effective date of transfer'' is defined in Section 6 of the Act as the date on which the mortgage payment of a borrower is first due to the transferee servicer (new servicer) pursuant to the assignment, sale, or transfer of the servicing of the mortgage loan. The statute controls and HUD does not have discretion to consider the suggested alternatives. Mortgage servicing loan. The Department received several comments regarding the extent and limitations of coverage under this rule. The term ``federally related mortgage loan'' was the starting point for delineating coverage and is defined in Sec. 3500.2, subject to the exemptions in Sec. 3500.5. Pursuant to section 19(a) of RESPA, at this time the Secretary has exempted from the requirements of this rule any subordinate lien federally related mortgage loans and has excluded all open-end lines of credit (home equity plans), whether secured by a first or subordinate lien, that are covered under the Truth in Lending Act and Regulation Z. The penalty provisions of the Truth in Lending Act are similar to those of Section 6 of RESPA, and the error resolution section of Regulation Z (12 CFR 226.13) provides protections similar to Section 6 of RESPA. Any other federally related mortgage loan secured by a first lien and not exempted under Sec. 3500.5, is covered by these requirements and called a ``mortgage servicing loan.'' Other Terms Four commenters asked for definitions of additional terms. One commenter suggested that ``loans made'' be distinguished from ``loans originated'', and that ``servicing transfer'' be defined. HUD response. The terms ``loans made'' and ``loans originated'' are synonymous, but the Department agrees that consistent use of terminology would avoid confusion and, therefore, has eliminated the term ``loans made.'' HUD considers a ``servicing transfer'' to be a sale, assignment, or transfer of servicing to a person or legal entity other than the maker of the loan named in the legal documents. Also, as discussed more fully later in this preamble, a servicing transfer occurs as part of a table-funding (defined in Sec. 3500.2) between the mortgage broker, as transferor, and the funding lender, as transferee. Refinancing Transactions The Department received 18 comments relating to refinancing transactions. Seven commenters recommended that refinancing be defined. Three commenters questioned the statutory authority for covering refinancing transactions. Since HUD received these comments, the Housing and Community Development Act of 1992 amended RESPA to state specifically that refinancing transactions are covered. A definition of refinancing was added to part 3500 in revisions published on February 10, 1994 (59 FR 6505, concerning subordinate liens), and is applicable to this section. The impact of this definition is that transactions specifically excluded from the definition of refinancing do not require new disclosures. Questions Involving State Law Preemption One commenter asked about the effect of Section 6 on State laws. While Section 18 of RESPA (12 U.S.C. 2616) sets forth general provisions regarding preemption, Section 6 contains its own preemption provision. The Secretary believes that one of the significant achievements of Section 6 was the elimination of perceived difficulties in the marketing of servicing rights for mortgage loans originated in various States. In part, Section 6 constituted a recognition of the de facto national market for mortgages and mortgage servicing and represented an attempt to facilitate such a market by establishing uniform standards. Therefore, Section 6 is determinative of the information required for the Servicing Disclosure Statement and the Notice(s) of Transfer; any other similar State requirements are preempted. Other provisions of State laws, such as those requiring additional notices to insurance companies or taxing authorities are not preempted by Section 6 or this rule. If permitted under State law, such additional information may be added to a notice prepared under this section. Requests for Exemption (1) Nine commenters requested that their institutions be exempted from providing Servicing Disclosure Statements, either because they were not institutions that transferred servicing or because they were chartered to make certain public purpose loans. Another commenter wanted an exemption for lenders that always transfer loans at closing; three commenters requested an exemption for lenders that do not sell the servicing rights. HUD response. While the Secretary has the authority to create classes of exemptions under Section 19 of RESPA, no commenter advanced a reason that would justify an exempted class. The Servicing Disclosure Statement is particularly appropriate when a lender always transfers loans at closing. When a servicer never sells servicing rights, it can simply state that fact. In any event, the information relating to complaint resolution must be provided, although lenders that do not transfer servicing may incorporate this information into the HUD-1 or HUD-1A. HUD amended the Servicing Disclosure Statement to include a sentence in the heading suggesting that a borrower save the statement if a loan is approved and to include alternate language regarding the history of mortgage servicing transfers that is allowed under the 1994 amendments of Section 6. (2) In the event a lender changes its policy and begins to sell the servicing, a commenter suggested that these lenders have to follow the rule within six months after beginning sale of servicing. HUD response. When a lender determines that it will sell servicing, the lender will be subject to the requirement that it furnish to the borrower a 15-day Notice of Transfer. The lender may also be required to revise its Servicing Disclosure Statement at the next calendar year revision. There is no obligation to send an amended Servicing Disclosure Statement for previously closed loans at the time of the sale of servicing; the 15-day Notice of Transfer provides the required information. (3) Three commenters suggested that mortgage brokers should be exempt from furnishing the Servicing Disclosure Statement, because furnishing the Statement is the obligation of the funding lender. However, another commenter suggested that a face-to-face meeting with the mortgage broker should satisfy the face-to-face meeting requirement for a lender. Two other commenters stated that the time (3 business days) should begin to run after the lender receives the written application from another party. HUD response. The general rule is that the Servicing Disclosure Statement shall be provided within 3 days of receipt of the borrower's written loan application, unless the application for credit is turned down within that time. If an application is received by a mortgage broker that will close the loan in its own name using table funding, the table funding mortgage broker is to provide the Servicing Disclosure Statement, using the ``we do not service mortgage loans'' optional language in Sec. 3500.21(b)(4). Similarly, for first-lien dealer loans, the dealer should provide the Servicing Disclosure Statement, using the ``we do not service mortgage loans'' optional language. (4) A commenter questioned whether a Servicing Disclosure Statement is required when the mortgage servicing function is transferred to an affiliated entity. A question was also posited as to how to treat a circumstance when a lender had a program that always sold servicing and another where no servicing was required. HUD response. A Notice of Transfer generally is required when there is a transfer of servicing between or to affiliates, unless there are no substantial changes in the way the borrower makes payments (see discussion below). However, the information regarding affiliate or subsidiary transfers is not required to be included in the statistical computations found in the Servicing Disclosure Statement. In the interest of full disclosure, this information may be provided voluntarily; the model format allows for this disclosure. If the lender is providing the historical data, the lender should indicate whether the Servicing Disclosure Statement includes assignments, sales or transfers to affiliates or subsidiaries. When the lender has a variety of programs, some of which sell servicing and some of which do not, information may be added to the model format to allow the servicer to describe this situation, or some variation of this situation. Further, while the use of the acknowledgment is mandatory, the use of the model format is not, and the incorporation in a footnote or otherwise of reasonable additional information, to describe situations that do not fit conveniently into the format is anticipated and expected. Sample language describing other alternative situations has been included with the model format. (5) Several commenters discussed proposed variations to the Servicing Disclosure Statement. These variations included permitting a lender to: (i) state its reasons for servicing or not servicing loans; (ii) identify the types of loans it services and, by the percentages of each type of loan transferred, the types of loans it sells; and (iii) advise the borrower of the new servicer, if any, at settlement. One commenter suggested that Sec. 3500.21(c) contain a statement that the use of the sample language in the appendices be considered as compliance with the disclosure requirements of that paragraph. Fifteen commenters recommended that lenders should not be required to obtain written acknowledgements of the Servicing Disclosure Statement from loan applicants whose applications are rejected or withdrawn. One commenter recommended that actual percentages be used rather than rounding to the nearest quartile. Commenters also requested that HUD permit longer than 31 days to calculate the percentage after the end of the calendar year. HUD response. The elements contained in the rule and Servicing Disclosure Statement comply with the Secretary's mandate under Section 6 of RESPA. The Secretary is required to develop a disclosure statement that would notify applicants for federally related mortgage loans about the servicing procedures, transfer practices and requirements, and the available complaint resolution process. In addition, the Secretary must develop an acknowledgement that the disclosure has been read and understood, as evidenced by signatures of the applicants when such a statement appears in the application. As in the interim rule, the Secretary has determined that is in the applicant's best interest for the signature to be at the end of the Servicing Disclosure Statement, because this directs the applicant's attention particularly to the servicing transfer issue. While the precise wording of the Servicing Disclosure Statement is left to the lender's discretion, HUD presumes that lenders will use the sample language in developing their own forms. However, HUD will not give blanket approval to forms that it has not seen; the lender must determine the appropriate language to make proper disclosure to the borrower. Only the language in the model Applicant's Acknowledgement is mandatory and must be followed precisely. Even though the Department believes that most lenders will use the simpler alternative language allowed by the Riegle Community Development and Regulatory Improvement Act of 1994 (Pub. L. 103-325, approved September 23, 1994), the Department has adopted the suggestion of permitting a longer time for computation of the previous year's percentages. The final rule allows the lender to calculate the percentages no later than the end of the first quartile in the next calendar year (March 31). Under his Section 19 authority, the Secretary has also created an exemption to the disclosure requirement, including the signed acknowledgment, if an applicant is turned down for credit within three business days of receipt of the application. This exemption makes all the mortgage servicing notice provisions consistent with good faith estimate amendments in section 951 of the Housing and Community Development Act of 1992. Merger and/or Acquisition of Servicing (1) Several commenters asked various questions as to what disclosures were necessary when a servicer buys another servicer, with or without changing the servicer's name, or merges one servicer into another servicer. In addition, two comments concerned the functions of ``master servicers'' and ``subservicers.'' The entity holding servicing rights is frequently called the ``master servicer,'' and the entity performing the actual servicing is called the ``subservicer''. Two situations were posited: first, the rights to servicing are sold, but the subservicer remains the same. Second, the subservicer changes, but the master servicer remains the same. HUD response. The controlling consideration in whether a Notice of Transfer must be delivered for a sale, transfer, or assignment is whether there is a significant change of servicing that potentially affects the borrower. In ordinary transfers of servicing between distinct entities, the Notice of Transfer is always required. In certain other situations--e.g., transfers between affiliates, transfers because a servicer or subservicer is bought or merged into another entity, and transfers between master servicers when the subservicer stays the same and when the subservicer changes--a Notice of Transfer is required unless there is no change in the payee, the collection address, account number, or the amount of the payment. (2) Six commenters suggested that when there are multiple applicants, it should be sufficient for the lender to give the Servicing Disclosure Statement to one of the co-applicants in a face- to-face interview. One commenter requested that a co-signer not be considered as a person who applies for a loan, therefore obviating the need for the co-signer to receive a Servicing Disclosure Statement. Another commenter asked how long a lender must keep co-signers' signatures on file. HUD response. Delivery of a single Servicing Disclosure Statement in a face-to-face meeting with one or more applicants is acceptable, and the Acknowledgement may be signed at that time. For each applicant or co-applicant who is not present, the Servicing Disclosure Statement may be delivered on his or her behalf to an applicant who is present, or may be mailed within 3 business days by first class mail, postage prepaid. While a co-signer might be an integral party to the transaction, a co-signer is primarily interested in timely payments of the mortgage, not in who holds the mortgage servicing. Therefore, a co- signer's acknowledgment is not required. The signed acknowledgments are to be in the loan package. Consistent with other record-retention requirements of part 3500, the lender must keep the signed acknowledgments for five years after the date of settlement of the loan unless the lender disposes of its interest in the loan and does not service the mortgage. In this case, the Servicing Disclosure Statement would be part of the transferred loan file. (3) One comment suggested that requiring prepaid, first-class postage for a Servicing Disclosure Statement that is mailed is unnecessary, costly, and inconsistent with the disclosure mailed in compliance with the Truth in Lending and Equal Credit Opportunity Acts. If the transaction is handled by mail, one commenter suggested, the period of three business days should begin only after the lender receives a written application from the borrower. HUD response. The use of prepaid, first-class mail is common business practice. The practice reasonably assures that the borrower will receive the Servicing Disclosure Statement and, thus, affords protection to those responsible for delivering the statement. The 3- business day period begins only when the application is received. (4) Four commenters suggested that lenders be permitted to include in the Servicing Disclosure Statement a statement that ``the loan cannot be funded unless the acknowledgements are signed and returned.'' One commenter asked that no follow-up correspondence be required if the lender has provided the Servicing Disclosure Statement to the borrower and the borrower has not returned a signed Acknowledgement. HUD response. The Department has deleted in this final rule the provision that no loan should be funded unless the signed Acknowledgement was contained in the loan package. HUD has determined that there is sufficient oversight by regulators and secondary market purchasers, and no overriding reason to highlight the Servicing Disclosure Statement over any other required statement. However, the Acknowledgement is still required to be a part of the loan package. The Department has also eliminated the mandatory follow-up requirement that was included in the interim rule. (5) One commenter stated that if the servicing is always sold, transferred, or assigned, there is not a ``present servicer'' or a ``new servicer'' at the time of application for the loan. The model language of the Notice of Transfer indicates that the borrower will be informed about the servicer, but the language fails to state when and in what format the borrower will receive this information. HUD response. The Department disagrees with the content of this comment. Whoever sells, transfers, or assigns a federally related mortgage loan is considered the present servicer and is called the ``transferor servicer'' in this rule. The servicer that buys, is transferred, or is assigned the mortgage servicing function is the new servicer and is called the ``transferee servicer.'' A mortgage broker that closes a table-funded transaction in its own name is in the position of a transferor servicer. A dealer in a first lien dealer loan situation is also a transferor servicer. Appendix B of the interim rule presented sample language for the Notice of Transfer; the language is retained in substantial degree in this final rule. As with the Servicing Disclosure Statement, discretion is allowed concerning the exact wording of the Notice of Transfer, but the various elements that the notice must contain are detailed in Sec. 3500.21(e). (6) Two commenters requested clarification about who bears the primary responsibility for notifying the borrower of a transfer of servicing when the transferor and transferee choose to notify the borrower in a single, joint Notice of Transfer. HUD response. HUD believes that in normal business transactions, the timing and issuance of Notices of Transfer would be resolved as part of the purchase and sale agreement. If a joint notice is not feasible, both notices will be required. (7) Several commenters were concerned about the impact of the requirements on the servicer's ability to administer collection practices consistent with investor requirements. A commenter questioned whether a late payment could be assessed prior to the 60-day period if the payment had not been made to the transferee. Also, two commenters asked whether late fees due prior to the transfer could be assessed. HUD position. If within the 60-day period the borrower has mistakenly mailed a payment to the transferor instead of the transferee, a late fee may not be imposed. However, if neither the transferor nor the transferee has received a regularly scheduled payment within the 60-day period, or any longer applicable grace period, late payment charges may be assessed in accordance with the servicer's established practices. Late charges due from the borrower before the effective date of transfer of servicing are not covered by RESPA or this rule. Questions Relating To Qualified Written Requests (1) Two comments addressed the type of information that HUD permits a borrower to include in a ``qualified written request.'' One commenter wished to limit the requirements to those inquiries asserting errors that have been caused by the transfer of servicing on a mortgage account. The other commenter wanted clarification on whether the requirements were limited to inquiries on payments and account balances. Another question concerned the length of time a servicer has to respond to qualified written requests after a loan is paid off or after servicing has been transferred. HUD response. The statute encompasses all information relating to the servicing of a mortgage loan and does not restrict the subject matter to questions concerning the transfer of servicing, installment payments, or account balances. For example, a written inquiry concerning a collection for or disbursement from an escrow account would be a qualified written request if the correspondence contains the required identifying elements. In Sec. 3500.21(f)(2), the Department establishes a 1-year period in which a qualified written request is valid after the date of loan pay-off or mortgage servicing transfer. (2) Three commenters were concerned about how written requests were received. One said that the regulations should state that ``a qualified written request'' must be mailed to an address supplied by the servicer in the coupon book or written correspondence and not the address for the mortgage payment. Another wanted to disregard requests that lacked the account number or were attached to the borrower's check, as distinguished from being placed in the same envelope. The third suggested that the regulations should specifically disqualify written inquiries that the borrower includes with the loan payment. A commenter suggested that the Department require a servicer to provide to the borrower information identifying the name and telephone number of a representative or the office or department of the servicer through which the borrower will receive assistance after submitting a qualified written request. HUD response. (i) This rule does not require that a servicer establish an office to handle borrowers' complaints. It does, however, allow the servicer to do so. In the event the servicer establishes such an office and complies with all the necessary notice provisions of this rule, then the borrower must deliver its request to that office in order for the inquiry to be a ``qualified written request'' (see the optional language in Appendix MS-2 to part 3500). (ii) If the servicer determines that a borrower's correspondence does not constitute a qualified written request (the most likely disqualification would be writing the inquiry on the payment coupon), the servicer should retain sufficient information to support its determination. (3) A commenter sought clarification of when the Department considers an inquiry to be resolved. HUD response. An inquiry is resolved when the servicer supplies the requested information or corrects an error. See, for example, Regulation Z, 12 U.S.C. 226.13(e) and (f) for similar complaint resolution provisions. (4) Eight commenters discussed the protection of the borrower's credit rating during a dispute. Most commenters asked whether a lender could provide payment information to a consumer reporting agency prior to the end of the 60-business day period if the dispute was resolved. Two commenters noted that a servicer would be in an unfair position if the servicer has previously reported a borrower's loan as past due and then is not allowed to report the payment. The commenters suggested that the servicer be permitted to advise the credit agency that the servicer is prohibited by law from providing additional information at that time. As a benefit to the borrower, one comment suggested that the servicer be allowed to report prior to the 60-business day period to clear a borrower's record. One commenter raised a question about whether a lender should assume that a third party is acting as the borrower's agent, or should require proof from the borrower of this delegation of authority. Furthermore, the commenter asked if the 20- business day time-frame, in which the borrower must receive a written acknowledgement from the servicer, is calculated from when the request is received or when the servicer confirms that the third party is the borrower's agent. HUD response. HUD interprets the statute to mean that no adverse information relating to a borrower's overdue payment information may be provided to a credit reporting agency within the 60-day period after the servicing function is transferred, assigned, or sold or after the servicer receives a qualified written request for information. The statute is implemented by this rule in a manner that does not prohibit a servicer from reporting an improvement (such as a payment found or received) in the borrower's record within the 60 day period. It is the servicer's responsibility to determine whether it has sufficient information that a third party is acting as the borrower's agent or the borrower should verify the agent's representative capacity. When the servicer is in doubt as to the status of the third party, the written acknowledgement can also be mailed to the borrower to ask that the borrower verify the status of the third party. (5) One comment asked for clarification of whether the servicer was prohibited from reporting delinquencies unrelated to a dispute. HUD response. A servicer may report a delinquency to a credit reporting agency provided that the report does not concern a pending qualified written request, which questions the correctness of the account, or a loan payment sent by the borrower to the transferor, rather than the transferee, within 60 days after the servicing of the loan is transferred. (6) One commenter hypothesized a situation in which a borrower sends a qualified request in September concerning a late charge assessed on the March payment, yet the borrower has not made his April through August payments. Is the servicer prohibited from reporting these delinquencies in September, although they are unrelated to the March dispute? HUD position. The receipt of a qualified written request by the servicer determines when the 60-business day period begins. If the April through August delinquencies are caused by the problem or issue identified by the borrower in the request, adverse information related to all of these delinquencies may not be submitted or resubmitted, if previously reported. In this instance, the 60-business day period begins when the qualified written request is received in September. However, there is nothing in RESPA that prohibits the servicer from initiating foreclosure action, or taking other remedial actions under the applicable mortgage documents, against the mortgaged property based on the delinquent payments in March through August. The servicer's timing on initiating foreclosure action is governed by the provisions of the borrower's mortgage document. Servicing Involving Certain Government-Related Agencies or Enterprises Section 6 provides that certain government or government-sponsored entities that have oversight or other relationships with servicers are not themselves servicers for purposes of Section 6. These entities include the Federal Deposit Insurance Corporation (FDIC) and the Resolution Trust Corporation (RTC) in connection with assets acquired, assigned, sold, or transferred pursuant to section 13(c) of the Federal Deposit Insurance Act or as receiver or conservator of an insured depository institution. Section 6 also makes provisions for certain circumstances involving mortgage servicing loans when government or government-sponsored entities have to deal with the termination for cause of the contract for servicing a loan or with the commencement of proceedings for bankruptcy of the servicer in a program involving such entity. In addition, in giving the transfer notice the statute also allows a delay of up to 30 days after the transfer of servicing. HUD believes that Congress exempted these entities from most mortgage servicing transfer requirements so as not to interfere with the fiduciary responsibilities of the entities with regard to protective actions needed to be taken by such entities, and not to create for such governmental entities potential liability that could inhibit the orderly transfer of servicing. Also, imposition of standard business requirements in troubled situations involving a fiduciary could adversely affect the underlying value of the related mortgage servicing. Because the rationales discussed above apply equally well to other Federal entities not specifically enumerated in Section 6(i)(2) of the Act, the Secretary has exercised his authority under Section 19(a) of RESPA and has added certain other Federal agencies (HUD, including FHA; VA; NCUA; and FmHA) that might also be in a fiduciary position or need to protect a borrower in an otherwise covered mortgage loan situation. In addition, under Section 19 the Secretary has exempted FHA from having to provide the Notice of Transfer in those instances where the mortgage has been assigned (along with the servicing) to FHA for the payment of the mortgage insurance benefits pursuant to section 230 of the National Housing Act (12 U.S.C. 1715u). Under the assignment program, the mortgagor actively provides information to both the mortgagee and FHA in order to show that the mortgagor meets certain eligibility criteria. The assignment of the mortgage to FHA is not a business decision. Rather, it is a means by which eligible mortgagors can avoid foreclosure and keep their homes. Mortgagors are aware early on in the process that, if deemed eligible, HUD will become their mortgagee and servicer. HUD also accepts assignment of other single-family insured mortgage loans under certain specialty programs. These assignments are not comparable to the normal sale and purchase transactions that the mortgage servicing transfer provisions of Section 6 were designed to address. Thus, requiring HUD to provide the notice of transfer in cases where mortgages are assigned to HUD would not serve the purposes of Section 6, and these assignments have been exempted under the Secretary's authority in Section 19. Damages and Costs (1) The statute provides that whoever fails to comply with any provision of Section 6 shall be liable to the borrower. These damages include actual damages and, in an action brought by an individual, up to $1,000 for a pattern of noncompliance; in a class action, the additional damages may not exceed the lesser of $500,000 or 1% of the servicer's net worth. A commenter noted that ``actual damages'' should be clarified. If a servicer reported a debt to a credit bureau within the 60-business day proscribed period, and the borrower alleges that the reporting resulted in the borrower's inability to obtain credit, the servicer could be liable for damages, even if the report was correct. Therefore, the commenter suggested that to prove actual damages the borrower must show: (a) The servicer made the report to a credit company within the proscribed period; (b) The borrower was correct, the dispute was resolved in the borrower's favor; and (c) The borrower would have otherwise been approved for the credit. HUD position. If a servicer violates Sec. 3500.21(g) by reporting information on a borrower to a credit agency relating to a dispute regarding the borrower's payments within 60 business days of receiving a qualified written inquiry from the borrower, that servicer will be liable for all proven actual damages that the borrower suffered because of the servicer's action. Further, if a pattern of noncompliance can be established, the servicer may be liable to that borrower for additional damages not to exceed $1,000. The costs of the action and attorneys fees also can be recovered. The statute requires no qualifying criteria that the borrower must meet before actual damages may be sought from the servicer. (2) One commenter suggested that the date on the Servicing Disclosure Statement was unnecessary. Another commenter noted that the Acknowledgment Form requires the applicant to state that he has read and ``understands'' its contents; however, the commenter stated, this might create potential legal complications. HUD response. Since the servicer is liable for damages and costs, it is in the servicer's own interest to note, by dating the form, when the Servicing Disclosure Statement was given (or placed in the mail) to the borrower. In any event, the requirement is statutory and has been retained in the final rule. Similarly, the language concerning the applicant's understanding of the disclosure statement reflects the statute and follows common business practice. Conforming Amendment to Escrow Rule The Department is also publishing a conforming amendment to its final rule on escrow accounting procedures, published on October 26, 1994 (59 FR 53890). Other Matters Regulatory Flexibility Act Under 5 U.S.C. 605(b), the Regulatory Flexibility Act, the undersigned hereby certifies that this rule will not have a significant economic impact on a substantial number of small entities. HUD finds that there are no anticompetitive aspects of the interim rule that are discriminatory with regard to small entities nor are there any unusual procedures that would need to be complied with by small entities. In any event, by statute, the requirements of this rule must be adhered to by all lenders and servicers. Environmental Impact At the time of publication of the interim rule, a finding of no significant impact with respect to the environment was made in accordance with HUD regulations in 24 CFR part 50 that implement section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332). This final rule does not make changes to the interim rule that are significant in this context. Accordingly, the initial finding of no significant impact remains applicable, and is available for public inspection between 7:30 a.m. and 5:30 p.m. weekdays in the office of the Rules Docket Clerk at the above address. Executive Order 12866 This rule was reviewed by the Office of Management and Budget under Executive Order 12866, Regulatory Planning and Review. Any changes made to the rule as a result of that review are clearly identified in the docket file, which is available for public inspection in the office of the Department's Rules Docket Clerk, Room 10276, 451 Seventh Street, S.W., Washington, DC 20410-0500. Executive Order 12616, Federalism The General Counsel, as the Designated Official under section 6(a) of Executive Order 12616, Federalism, has determined that the policies contained in this regulation do not have significant federalism implications and, thus, are not subject to review under the Order. Issuance of the regulation does not change existing Federal, State or local governmental relationships, except that, under the statute, compliance with the disclosure provisions of this rule will preempt State law requirements dealing with identical subject matter. Given the lack of discretion pertaining to the preemption issue by the statute, further analysis of the federalism implications of the rule would serve no purpose. Executive Order 12606, the Family The General Counsel, as the Designated Official under section 6(a) of Executive Order 12606, the Family, has determined that the policies contained in this regulation do not have a potential significant impact on family function, maintenance and general well being, and, thus, are not subject to review under the order. Semiannual Agenda of Regulations This final rule was listed as Item No. 1813 on the Department's Semiannual Agenda of Regulations, published on November 14, 1994 (59 FR 57632, 57659), as required by Executive Order 12866 and the Regulatory Flexibility Act. List of Subjects 24 CFR Part 203 Hawaiian Natives, Home improvement, Indians--lands, Loan programs-- housing and community development, Mortgage insurance, Reporting and recordkeeping requirements, Solar energy. 24 CFR Part 3500 Consumer protection, Condominiums, Housing, Mortgages, Mortgage servicing, Reporting and recordkeeping requirements. For the reasons stated in the preamble, parts 203 and 3500 of title 24 of the Code of Federal Regulations are amended as follows: PART 203--SINGLE FAMILY MORTGAGE INSURANCE 1. The authority citation for part 203 is revised to read as follows: Authority: 12 U.S.C. 1709, 1710, 1715b and 1715u; 42 U.S.C. 3535(d). 2. In Sec. 203.502, paragraph (b) is revised to read as follows: Sec. 203.502 Responsibility for servicing. * * * * * (b) Whenever servicing of any mortgage is transferred from one mortgagee or servicer to another, notice of the transfer of service shall be delivered: (1) By the transferor mortgagee or servicer: (i) To the mortgagor. The notification shall be delivered not less than 15 days before the effective date of the transfer and shall contain the information required in Sec. 3500.21(e)(2) of this title; and (ii) To the Secretary. This notification shall be delivered within 15 days of the transfer, on a form approved by the Secretary; and (2) By the transferee mortgagee or servicer to the mortgagor. The notification shall be delivered not more than 15 days after the effective date of the transfer and shall contain the information required in Sec. 3500.21(e)(2) of this title. 3. Section 203.508 is amended by adding a new paragraph (e), to read as follows: Sec. 203.508 Providing information. * * * * * (e) Each servicer of a mortgage shall deliver to the mortgagor a written notice of any assignment, sale, or transfer of the servicing of the mortgage. The notice must be sent in accordance with the provisions of Sec. 3500.21(e)(1) of this title and shall contain the information required by Sec. 3500.21(e)(2) of this title. Servicers must respond to mortgagor inquiries pertaining to the transfer of servicing in accordance with Sec. 3500.21(f) of this title. * * * * * 4. Section 203.554 is amended by adding a new paragraph (d), to read as follows: Sec. 203.554 Enforcement of late charges. * * * * * (d) During the 60-day period beginning on the effective date of transfer of the servicing of a mortgage, a late charge shall not be imposed on the mortgagor with respect to any payment on the loan. No payment shall be treated as late for any other purpose if the payment is received by the transferor servicer, rather than the transferee servicer that should receive the payment, before the due date (including any applicable grace period allowed under the mortgage documents) applicable to such payment. PART 3500--REAL ESTATE SETTLEMENT PROCEDURES ACT 5. The authority citation for 24 CFR part 3500 continues to read as follows: Authority: 12 U.S.C. 2601 et seq. 6. Section 3500.2 is amended by revising the definition of ``Business day'', to read as follows: Sec. 3500.2 Definitions. * * * * * Business day means a day on which the offices of the business entity are open to the public for carrying on substantially all of the entity's business functions. * * * * * 7. In Sec. 3500.19, paragraph (a) is amended by revising the second sentence, to read as follows: Sec. 3500.19 Enforcement. (a) * * * Specific provisions for enforcing the escrow account statement provisions (12 U.S.C. 2609(c) and (d)) are set out in Sec. 3500.17. * * * * * * * * 8. A new Sec. 3500.21 is added, to read as follows: Sec. 3500.21 Mortgage servicing transfers. (a) Definitions. As used in this section: Effective date of transfer means the date on which the mortgage payment of a borrower is first due to the transferee servicer of a mortgage servicing loan pursuant to the assignment, sale or transfer of the servicing of the mortgage servicing loan. Master servicer means the owner of the right to perform servicing, which may actually perform the servicing itself or may do so through a subservicer. Mortgage servicing loan means a federally related mortgage loan, as that term is defined in Sec. 3500.2, subject to the exemptions in Sec. 3500.5, when the mortgage loan is secured by a first lien. The definition does not include subordinate lien loans or open-end lines of credit (home equity plans) covered by the Truth in Lending Act and Regulation Z, including open-end lines of credit secured by a first lien. Qualified written request means a written correspondence from the borrower to the servicer prepared in accordance with paragraph (f)(2) of this section. Servicer means the person responsible for the servicing of a loan (including the person who makes or holds a loan if such person also services the loan). The term does not include: (1) The Federal Deposit Insurance Corporation (FDIC) or the Resolution Trust Corporation (RTC), in connection with assets acquired, assigned, sold, or transferred pursuant to section 13(c) of the Federal Deposit Insurance Act or as receiver or conservator of an insured depository institution; or (2) The Federal National Mortgage Corporation (FNMA); the Federal Home Loan Mortgage Corporation (Freddie Mac); the Resolution Trust Corporation (RTC); the Federal Deposit Insurance Corporation (FDIC); the Department of Housing and Urban Development (HUD), including the Government National Mortgage Association (GNMA) and the Federal Housing Administration (FHA); the National Credit Union Administration (NCUA); the Farmers Home Administration (FmHA); and the Department of Veterans Affairs (VA), in any case in which the assignment, sale, or transfer of the servicing of the mortgage servicing loan is preceded by termination of the contract for servicing the loan for cause, commencement of proceedings for bankruptcy of the servicer, or commencement of proceedings by the FDIC or RTC for conservatorship or receivership of the servicer (or an entity by which the servicer is owned or controlled). (3) The Federal Housing Administration (FHA), in cases where a mortgage insured under the National Housing Act is assigned to HUD. Servicing means receiving any scheduled periodic payments from a borrower pursuant to the terms of any mortgage servicing loan, including amounts for escrow accounts under section 10 of RESPA, and making the payments to the owner of the loan or other third parties of principal and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the terms of the mortgage servicing loan documents or servicing contract. In the case of a home equity conversion mortgage or reverse mortgage as defined in Sec. 3500.2, servicing includes making payments to the borrower. Subservicer means a servicer who does not own the right to perform servicing, but who does so on behalf of the master servicer. Transferee servicer means a servicer who obtains or who will obtain the right to perform servicing functions pursuant to an agreement or understanding. Transferor servicer means a servicer, including a table funding mortgage broker or dealer on a first lien dealer loan, who transfers or will transfer the right to perform servicing functions pursuant to an agreement or understanding. (b) Servicing Disclosure Statement and Applicant Acknowledgement; requirements. (1) At the time an application for a mortgage servicing loan is submitted, or within 3 business days after submission of the application, the lender, mortgage broker who anticipates using table funding, or dealer who anticipates a first lien dealer loan shall provide to each person who applies for such a loan a Servicing Disclosure Statement. This requirement shall not apply when the application for credit is turned down within three business days after receipt of the application. A format for the Servicing Disclosure Statement appears as Appendix MS-1 to this part. Except as provided in paragraph (b)(2) of this section, the specific language of the Servicing Disclosure Statement is not required to be used, but the Servicing Disclosure Statement must include the information set out in paragraph (b)(3) of this section, including the statement of the borrower's rights in connection with complaint resolution. The information set forth in Instructions to Preparer on the Servicing Disclosure Statement need not be included on the form given to applicants, and material in square brackets is optional or alternative language. (2) The Applicant's Acknowledgement portion of the Servicing Disclosure Statement in the format stated is mandatory. Additional lines may be added to accommodate more than two applicants. (3) The Servicing Disclosure Statement must contain the following information, except as provided in paragraph (b)(3)(ii) of this section: (i) Whether the servicing of the loan may be assigned, sold or transferred to any other person at any time while the loan is outstanding. If the lender, table funding mortgage broker, or dealer in a first lien dealer loan does not engage in the servicing of any mortgage servicing loans, the disclosure may consist of a statement to the effect that there is a current intention to assign, sell, or transfer servicing of the loan. (ii) The percentages (rounded to the nearest quartile (25%)) of mortgage servicing loans originated by the lender in each calendar year for which servicing has been assigned, sold, or transferred for such calendar year. Compliance with this paragraph (b)(3)(ii) is not required if the lender, table funding mortgage broker, or dealer on a first lien dealer loan chooses option B in the model format in paragraph (b)(4) of this section, including in square brackets the language ``[and have not serviced mortgage loans in the last three years.]''. The percentages shall be provided as follows: (A) This information shall be set out for the most recent three calendar years completed, with percentages as of the end of each year. This information shall be updated in the disclosure no later than March 31 of the next calendar year. Each percentage should be obtained by using as the numerator the number of mortgage servicing loans originated during the calendar year for which servicing is transferred within the calendar year and, as the denominator, the total number of mortgage servicing loans originated in the calendar year. If the volume of transfers is less than 12.5 percent, the word ``nominal'' or the actual percentage amount of servicing transfers may be used. (B) This statistical information does not have to include the assignment, sale, or transfer of mortgage loan servicing by the lender to an affiliate or subsidiary of the lender. However, lenders may voluntarily include transfers to an affiliate or subsidiary. The lender should indicate whether the percentages provided include assignments, sales, or transfers to affiliates or subsidiaries. (C) In the alternative, if applicable, the following statement may be substituted for the statistical information required to be provided in accordance with paragraph (b)(3)(ii) of this section: ``We have previously assigned, sold, or transferred the servicing of federally related mortgage loans.'' (iii) The best available estimate of the percentage (0 to 25 percent, 26 to 50 percent, 51 to 75 percent, or 76 to 100 percent) of all loans to be made during the 12-month period beginning on the date of origination for which the servicing may be assigned, sold, or transferred. Each percentage should be obtained by using as the numerator the estimated number of mortgage servicing loans that will be originated for which servicing may be transferred within the calendar year and, as the denominator, the estimated total number of mortgage servicing loans that will be originated in the calendar year. (A) If the lender, mortgage broker, or dealer anticipates that no loan servicing will be sold during the calendar year, the word ``none'' may be substituted for ``0 to 25 percent.'' If it is anticipated that all loan servicing will be sold during the calendar year, the word ``all'' may be substituted for ``76 to 100 percent.'' (B) This statistical information does not have to include the estimated assignment, sale, or transfer of mortgage loan servicing to an affiliate or subsidiary of that person. However, this information may be provided voluntarily. The Servicing Disclosure Statements should indicate whether the percentages provided include assignments, sales or transfers to affiliates or subsidiaries. (iv) The information set out in paragraphs (d) and (e) of this section. (v) A written acknowledgement that the applicant (and any co- applicant) has/have read and understood the disclosure, and understand that the disclosure is a required part of the mortgage application. This acknowledgement shall be evidenced by the signature of the applicant and any co-applicant. (4) The following is a model format, which includes several options, for complying with the requirements of paragraph (b)(3) of this section. The model format may be annotated with additional information that clarifies or enhances the model language. The lender or table funding mortgage broker (or dealer) should use the language that best describes the particular circumstances. (i) Model Format: The following is the best estimate of what will happen to the servicing of your mortgage loan: (A) Option A. We may assign, sell, or transfer the servicing of your loan while the loan is outstanding. [We are able to service your loan[.][,] and we [will] [will not] [haven't decided whether to] service your loan.]; or (B) Option B. We do not service mortgage loans[.][,] [and have not serviced mortgage loans in the past three years.] We presently intend to assign, sell, or transfer the servicing of your mortgage loan. You will be informed about your servicer. (C) As appropriate, the following paragraph may be used: We assign, sell, or transfer the servicing of some of our loans while the loans are outstanding, depending on the type of loan and other factors. For the program for which you have applied, we expect to [assign, sell, or transfer all of the mortgage servicing][retain all of the mortgage servicing] [assign, sell, or transfer ____% of the mortgage servicing]. (ii) [Reserved] (c) Servicing Disclosure Statement and Applicant Acknowledgement; delivery. The lender, table funding mortgage broker, or dealer that anticipates a first lien dealer loan shall deliver Servicing Disclosure Statements to each applicant for mortgage servicing loans. Each applicant or co-applicant must sign an Acknowledgement of receipt of the Servicing Disclosure Statement before settlement. (1) In the case of a face-to-face interview with one or more applicants, the Servicing Disclosure Statement shall be delivered at the time of application. An applicant present at the interview may sign the Acknowledgment on his or her own behalf at that time. An applicant present at the interview also may accept delivery of the Servicing Disclosure Statement on behalf of the other applicants. (2) If there is no face-to-face interview, the Servicing Disclosure Statement shall be delivered by placing it in the mail, with prepaid first-class postage, within 3 business days from receipt of the application. If co-applicants indicate the same address on their application, one copy delivered to that address is sufficient. If different addresses are shown by co-applicants on the application, a copy must be delivered to each of the co-applicants. (d) Notices of Transfer; loan servicing. (1) Requirement for notice. (i) Except as provided in this paragraph or paragraph (d)(1)(ii) of this section, each transferor servicer and transferee servicer of any mortgage servicing loan shall deliver to the borrower a written Notice of Transfer, containing the information described in paragraph (d)(3) of this section, of any assignment, sale, or transfer of the servicing of the loan. The following transfers are not considered an assignment, sale, or transfer of mortgage loan servicing for purposes of this requirement if there is no change in the payee, address to which payment must be delivered, account number, or amount of payment due: (A) Transfers between affiliates; (B) Transfers resulting from mergers or acquisitions of servicers or subservicers; and (C) Transfers between master servicers, where the subservicer remains the same. (ii) The Federal Housing Administration (FHA) is not required under paragraph (d) of this section to submit to the borrower a Notice of Transfer in cases where a mortgage insured under the National Housing Act is assigned to FHA. (2) Time of notice. (i) Except as provided in paragraph (d)(2)(ii) of this section: (A) The transferor servicer shall deliver the Notice of Transfer to the borrower not less than 15 days before the effective date of the transfer of the servicing of the mortgage servicing loan; and (B) The transferee servicer shall deliver the Notice of Transfer to the borrower not more than 15 days after the effective date of the transfer. (C) The transferor and transferee servicers may combine their notices into one notice, which shall be delivered to the borrower not less than 15 days before the effective date of the transfer of the servicing of the mortgage servicing loan. (ii) The Notice of Transfer shall be delivered to the borrower by the transferor servicer or the transferee servicer not more than 30 days after the effective date of the transfer of the servicing of the mortgage servicing loan in any case in which the transfer of servicing is preceded by: (A) Termination of the contract for servicing the loan for cause; (B) Commencement of proceedings for bankruptcy of the servicer; or (C) Commencement of proceedings by the Federal Deposit Insurance Corporation (FDIC) or the Resolution Trust Corporation (RTC) for conservatorship or receivership of the servicer or an entity that owns or controls the servicer. (iii) Notices of Transfer delivered at settlement by the transferor servicer and transferee servicer, whether as separate notices or as a combined notice, will satisfy the timing requirements of paragraph (d)(2) of this section. (3) Notices of Transfer; contents. The Notices of Transfer required under paragraph (d) of this section shall include the following information: (i) The effective date of the transfer of servicing; (ii) The name, payment amount, and consumer inquiry addresses (including, at the option of the servicer, a separate address where qualified written requests must be sent), and a toll-free or collect- call telephone number of the transferee servicer; (iii) A toll-free or collect-call telephone number for an employee or department of the servicer that can be contacted by the borrower for answers to servicing transfer inquiries; (iv) The date on which the transferor servicer will cease to accept payments relating to the loan and the date on which the transferee servicer will begin to accept such payments. These dates shall either be the same or consecutive days; (v) Information concerning any effect the transfer may have on the terms or the continued availability of mortgage life or disability insurance, or any other type of optional insurance, and any action the borrower must take to maintain coverage; and (vi) A statement that the transfer of servicing does not affect any other term or condition of the mortgage documents, other than terms directly related to the servicing of the loan. (4) Notices of Transfer; sample notice. Sample language that may be used to comply with the requirements of paragraph (d) of this section is set out in Appendix MS-2 of this part. Minor modifications to the sample language may be made to meet the particular circumstances of the servicer, but the substance of the sample language shall not be omitted or substantially altered. (5) Consumer protection during transfer of servicing. During the 60-business day period beginning on the effective date of transfer of the servicing of a mortgage servicing loan, a late fee may not be imposed on the borrower with respect to any payment on the loan. In addition, a payment made within that time by the borrower may not be treated as late for any other purposes if the payment is received by the transferor servicer, rather than by the transferee servicer, before the due date (including any applicable grace period allowed under the mortgage documents) applicable to the payment. (e) Duty of loan servicer to respond to borrower inquiries. (1) Notice of receipt of inquiry. Within 20 business days of a servicer of a mortgage servicing loan receiving a qualified written request from the borrower for information relating to the servicing of the loan, the servicer shall provide to the borrower a written response acknowledging receipt of the qualified written response. This requirement shall not apply if the action requested by the borrower is taken within that period and the borrower is notified of that action in accordance with the paragraph (f)(3) of this section. By notice either included in the Notice of Transfer or separately delivered by first-class mail, postage prepaid, a servicer may establish a separate and exclusive office and address for the receipt and handling of qualified written requests. (2) Qualified written request; defined. (i) For purposes of paragraph (f) of this section, a qualified written request means a written correspondence (other than notice on a payment coupon or other payment medium supplied by the servicer) that includes, or otherwise enables the servicer to identify, the name and account of the borrower, and includes a statement of the reasons that the borrower believes the account is in error, if applicable, or that provides sufficient detail to the servicer regarding information relating to the servicing of the loan sought by the borrower. (ii) A written request does not constitute a qualified written request if it is delivered to a servicer more than 1 year after either the date of transfer of servicing or the date that the mortgage servicing loan amount was paid in full, whichever date is applicable. (3) Action with respect to the inquiry. Not later than 60 business days after receiving a qualified written request from the borrower, and, if applicable, before taking any action with respect to the inquiry, the servicer shall: (i) Make appropriate corrections in the account of the borrower, including the crediting of any late charges or penalties, and transmit to the borrower a written notification of the correction. This written notification shall include the name and telephone number of a representative of the servicer who can provide assistance to the borrower; or (ii) After conducting an investigation, provide the borrower with a written explanation or clarification that includes: (A) To the extent applicable, a statement of the servicer's reasons for concluding the account is correct and the name and telephone number of an employee, office, or department of the servicer that can provide assistance to the borrower; or (B) Information requested by the borrower, or an explanation of why the information requested is unavailable or cannot be obtained by the servicer, and the name and telephone number of an employee, office, or department of the servicer that can provide assistance to the borrower. (4) Protection of credit rating. (i) During the 60 business day period beginning on the date of the servicer receiving from a borrower a qualified written request relating to a dispute on the borrower's payments, a servicer may not provide adverse information regarding any payment that is the subject of the qualified written request to any consumer reporting agency (as that term is defined in section 603 of the Fair Credit Reporting Act, 15 U.S.C. 1681a). (ii) In accordance with section 17 of RESPA, 12 U.S.C. 2615, the protection of credit rating provision of paragraph (e)(4)(i) of this section does not impede a lender or servicer from pursuing any of its remedies, including initiating foreclosure, allowed by the underlying mortgage loan instruments. (f) Damages and costs. (1) Whoever fails to comply with any provision of this section shall be liable to the borrower for each failure in the following amounts: (i) Individuals. In the case of any action by an individual, an amount equal to the sum of any actual damages sustained by the individual as the result of the failure and, when there is a pattern or practice of noncompliance with the requirements of this section, any additional damages in an amount not to exceed $1,000. (ii) Class Actions. In the case of a class action, an amount equal to the sum of any actual damages to each borrower in the class that result from the failure and, when there is a pattern or practice of noncompliance with the requirements of this section, any additional damages in an amount not greater than $1,000 for each class member. However, the total amount of any additional damages in a class action may not exceed the lesser of $500,000 or 1 percent of the net worth of the servicer. (iii) Costs. In addition, in the case of any successful action under paragraph (f) of this section, the costs of the action and any reasonable attorneys' fees incurred in connection with the action. (2) Nonliability. A transferor or transferee servicer shall not be liable for any failure to comply with the requirements of this section, if within 60 days after discovering an error (whether pursuant to a final written examination report or the servicer's own procedures) and before commencement of an action under this section and the receipt of written notice of the error from the borrower, the servicer notifies the person concerned of the error and makes whatever adjustments are necessary in the appropriate account to ensure that the person will not be required to pay an amount in excess of any amount that the person otherwise would have paid. (g) Timely payments by servicer. If the terms of any mortgage servicing loan require the borrower to make payments to the servicer of the loan for deposit into an escrow account for the purpose of assuring payment of taxes, insurance premiums, and other charges with respect to the mortgaged property, the servicer shall make payments from the escrow account in a timely manner for the taxes, insurance premiums, and other charges as the payments become due, as governed by the requirements in Sec. 3500.17(k). (h) Preemption of State laws. A lender who makes a mortgage servicing loan or a servicer shall be considered to have complied with the provisions of any State law or regulation requiring notice to a borrower at the time of application for a loan or transfer of servicing of a loan if the lender or servicer complies with the requirements of this section. Any State law requiring notice to the borrower at the time of application or at the time of transfer of servicing of the loan is preempted, and there shall be no additional borrower disclosure requirements. Provisions of State law, such as those requiring additional notices to insurance companies or taxing authorities, are not preempted by Section 6 of RESPA or this section, and this additional information may be added to a notice prepared under this section, if the procedure is allowable under State law. 9. Appendices K through M are reserved and appendices MS-1 and MS-2 are added to part 3500, to read as follows: BILLING CODE 4210-27-P![]()
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TR19DE94.013 BILLING CODE 4210-27-C Dated: December 6, 1994. Nicolas P. Retsinas, Assistant Secretary for Housing-Federal Housing Commissioner. [FR Doc. 94-30413 Filed 12-16-94; 8:45 am] BILLING CODE 4210-27-P