[Federal Register Volume 74, Number 164 (Wednesday, August 26, 2009)]
[Proposed Rules]
[Pages 43231-43425]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18119]



[[Page 43231]]

-----------------------------------------------------------------------

Part II





Federal Reserve System





-----------------------------------------------------------------------



12 CFR Part 226



Truth in Lending; Proposed Rule

Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / 
Proposed Rules

[[Page 43232]]


-----------------------------------------------------------------------

FEDERAL RESERVE SYSTEM

12 CFR Part 226

[Regulation Z; Docket No. R-1366]


Truth in Lending

AGENCY: Board of Governors of the Federal Reserve System.

ACTION: Proposed rule; request for public comment.

-----------------------------------------------------------------------

SUMMARY: The Board proposes to amend Regulation Z, which implements the 
Truth in Lending Act (TILA), and the staff commentary to the 
regulation, as part of a comprehensive review of TILA's rules for 
closed-end credit. This proposal would revise the rules for disclosures 
of closed-end credit secured by real property or a consumer's dwelling, 
except for rules regarding rescission and reverse mortgages, which the 
Board anticipates will be reviewed at a later date. Published elsewhere 
in today's Federal Register is the Board's proposal regarding rules for 
disclosures of open-end credit secured by a consumer's dwelling.
    Disclosures provided at application would include a Board-published 
one-page ``Key Questions to Ask About Your Mortgage'' document that 
explains potentially risky loan features, and a Board-published one-
page ``Fixed vs. Adjustable Rate Mortgages'' document. Transaction-
specific disclosures required within three business days of application 
would summarize key loan terms. The calculation of the annual 
percentage rate and the finance charge would be revised to be more 
comprehensive, and their disclosures improved. Consumers would receive 
a ``final'' TILA disclosure at least three business days before 
consummation. Certain new post-consummation disclosures would be 
required. In addition, the proposed revisions would prohibit certain 
payments to mortgage brokers and loan officers that are based on the 
loan's terms or conditions, and prohibit steering consumers to 
transactions that are not in their interest to increase compensation 
received.
    Rules regarding eligibility restrictions and disclosures for credit 
insurance and debt cancellation or debt suspension coverage would apply 
to all closed-end and open-end credit transactions.

DATES: Comments must be received on or before December 24, 2009.

ADDRESSES: You may submit comments, identified by Docket No. R-1366, by 
any of the following methods:
     Agency Web Site: http://www.federalreserve.gov. Follow the 
instructions for submitting comments at http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: regs.comments@federalreserve.gov. Include the 
docket number in the subject line of the message.
     FAX: (202) 452-3819 or (202) 452-3102.
     Mail: Jennifer J. Johnson, Secretary, Board of Governors 
of the Federal Reserve System, 20th Street and Constitution Avenue, 
NW., Washington, DC 20551.
    All public comments are available from the Board's Web site at 
http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm as 
submitted, unless modified for technical reasons. Accordingly, your 
comments will not be edited to remove any identifying or contact 
information. Public comments may also be viewed electronically or in 
paper in Room MP-500 of the Board's Martin Building (20th and C 
Streets, NW.) between 9 a.m. and 5 p.m. on weekdays.

FOR FURTHER INFORMATION CONTACT: Jamie Z. Goodson, Jelena McWilliams, 
Nikita M. Pastor, or Maureen C. Yap, Attorneys; Paul Mondor, Senior 
Attorney; or Kathleen C. Ryan, Senior Counsel. Division of Consumer and 
Community Affairs, Board of Governors of the Federal Reserve System, at 
(202) 452-3667 or 452-2412; for users of Telecommunications Device for 
the Deaf (TDD) only, contact (202) 263-4869.

SUPPLEMENTARY INFORMATION: 

I. Background on TILA and Regulation Z

    Congress enacted the Truth in Lending Act (TILA) based on findings 
that economic stability would be enhanced and competition among 
consumer credit providers would be strengthened by the informed use of 
credit resulting from consumers' awareness of the cost of credit. One 
of the purposes of TILA is to provide meaningful disclosure of credit 
terms to enable consumers to compare credit terms available in the 
marketplace more readily and avoid the uninformed use of credit.
    TILA's disclosures differ depending on whether credit is an open-
end (revolving) plan or a closed-end (installment) loan. TILA also 
contains procedural and substantive protections for consumers. TILA is 
implemented by the Board's Regulation Z. An Official Staff Commentary 
interprets the requirements of Regulation Z. By statute, creditors that 
follow in good faith Board or official staff interpretations are 
insulated from civil liability, criminal penalties, or administrative 
sanction.

II. Summary of Major Proposed Changes

    The goal of the proposed amendments to Regulation Z is to improve 
the effectiveness of disclosures that creditors provide to consumers in 
connection with an application and throughout the life of a mortgage. 
The proposed changes are the result of the Board's review of the 
provisions that apply to closed-end mortgage transactions. The proposal 
would apply to all closed-end credit transactions secured by real 
property or a dwelling, and would not be limited to credit secured by 
the consumer's principal dwelling. The Board is proposing changes to 
the format, timing, and content of disclosures for the four main types 
of closed-end credit information governed by Regulation Z: (1) 
disclosures at application; (2) disclosures within three days after 
application; (3) disclosures three days before consummation; and (4) 
disclosures after consummation. In addition, the Board is proposing 
additional protections related to limits on loan originator 
compensation.
    Disclosures at Application. The proposal contains new requirements 
and changes to the format and content of disclosures given at 
application, to make them more meaningful and easier for consumers to 
use. The proposed changes include:
     Providing a new one-page Board publication, entitled ``Key 
Questions to Ask About Your Mortgage,'' which would explain the 
potentially risky features of a loan.
     Providing a new one-page Board publication, entitled 
``Fixed vs. Adjustable Rate Mortgages,'' which would explain the basic 
differences between such loans and would replace the lengthy Consumer 
Handbook on Adjustable-Rate Mortgages (CHARM booklet) currently 
required under Regulation Z.
     Revising the format and content of the current adjustable-
rate mortgage (ARM) loan program disclosure, including: a requirement 
that the disclosure be in a tabular question and answer format, a 
streamlined plain-language disclosure of interest rate and payment 
information, and a new disclosure of potentially risky features, such 
as prepayment penalties.
    Disclosures within Three Days after Application. The proposal also 
contains revisions to the TILA disclosures provided within three days 
after

[[Page 43233]]

application (the ``early TILA disclosure'') to make the information 
clearer and more conspicuous. The proposed changes include:
     Revising the calculation of the finance charge and annual 
percentage rate (APR) so that they capture most fees and costs paid by 
consumers in connection with the credit transaction.
     Providing a graph that would show consumers how their APR 
compares to the APRs for borrowers with excellent credit and for 
borrowers with impaired credit.
     Summarizing key loan features, such as the loan term, 
amount, and type, and disclosing total settlement charges, as is 
currently required for the good faith estimate of settlement costs 
(GFE) under the Real Estate Settlement Procedures Act (RESPA) and 
Regulation X.
     Requiring disclosure of potential changes to the interest 
rate and monthly payment.
     Adopting new format requirements, including rules 
regarding: type size and use of boldface for certain terms, placement 
of information, and highlighting certain information in a tabular 
format.
    Disclosures Three Days before Consummation. The proposal would 
require creditors to provide a ``final'' TILA disclosure that the 
consumer must receive at least three business days before consummation. 
In addition, two proposed alternatives regarding redisclosure of the 
``final'' TILA disclosure include:
     Alternative 1: If any terms change after the ``final'' 
TILA disclosures are provided, then another final TILA disclosure would 
need to be provided so that the consumer receives it at least three 
business days before consummation.
     Alternative 2: If the APR exceeds a certain tolerance or 
an adjustable-rate feature is added after the ``final'' TILA 
disclosures are provided, then another final TILA disclosure would need 
to be provided so that the consumer receives it at least three business 
days before consummation. All other changes could be disclosed at 
consummation.
    Disclosures after Consummation. The proposal would change the 
timing, content and types of notices provided after consummation. The 
proposed changes include:
     For ARMs, increasing advance notice of a payment change 
from 25 to 60 days, and revising the format and content of the ARM 
adjustment notice.
     For payment option loans with negative amortization, 
requiring a monthly statement to provide information about payment 
options that include the costs and effects of negatively-amortizing 
payments.
     For creditor-placed property insurance, requiring notice 
of the cost and coverage at least 45 days before imposing a charge for 
such insurance.
    Loan Originator Compensation. The proposal contains new limits on 
originator compensation for all closed-end mortgages. The proposed 
changes include:
     Prohibiting certain payments to a mortgage broker or a 
loan officer that are based on the loan's terms and conditions.
     Prohibiting a mortgage broker or loan officer from 
``steering'' consumers to transactions that are not in their interest 
in order to increase the mortgage broker's or loan officer's 
compensation.

III. The Board's Review of Closed-End Credit Rules

    The Board has amended Regulation Z numerous times since TILA 
simplification in 1980. In 1987, the Board revised Regulation Z to 
require special disclosures for closed-end ARMs secured by the 
borrower's principal dwelling. 52 FR 48665; Dec. 24, 1987. In 1995, the 
Board revised Regulation Z to implement changes to TILA by the Home 
Ownership and Equity Protection Act (HOEPA). 60 FR 15463; Mar. 24, 
1995. HOEPA requires special disclosures and substantive protections 
for home-equity loans and refinancings with APRs or points and fees 
above certain statutory thresholds. Numerous other amendments have been 
made over the years to address new mortgage products and other matters, 
such as abusive lending practices in the mortgage and home-equity 
markets.
    The Board's current review of Regulation Z was initiated in 
December 2004 with an advance notice of proposed rulemaking.\1\ 69 FR 
70925; Dec. 8, 2004. At that time, the Board announced its intent to 
conduct its review of Regulation Z in stages, focusing first on the 
rules for open-end (revolving) credit accounts that are not home-
secured, chiefly general-purpose credit cards and retailer credit card 
plans. In December 2008, the Board approved final rules for open-end 
credit that is not home-secured. 74 FR 5244; Jan. 29, 2009.
---------------------------------------------------------------------------

    \1\ The review was initiated pursuant to requirements of section 
303 of the Riegle Community Development and Regulatory Improvement 
Act of 1994, section 610(c) of the Regulatory Flexibility Act of 
1980, and section 2222 of the Economic Growth and Regulatory 
Paperwork Reduction Act of 1996. An advance notice of proposed 
rulemaking is published to obtain preliminary information prior to 
issuing a proposed rule or, in some cases, deciding whether to issue 
a proposed rule.
---------------------------------------------------------------------------

    Beginning in 2007, the Board proposed revisions to the rules for 
closed-end credit in several phases:
     HOEPA. In 2007, the Board proposed rules under HOEPA for 
higher-priced mortgage loans (2007 HOEPA Proposed Rule). The final 
rules, approved in July 2008 (2008 HOEPA Final Rule), prohibited 
certain unfair or deceptive lending and servicing practices in 
connection with closed-end mortgages. The Board also approved revisions 
to advertising rules for both closed-end and open-end home-secured 
loans to ensure that advertisements contain accurate and balanced 
information and do not contain misleading or deceptive representations. 
The final rules also required creditors to provide consumers with 
transaction-specific disclosures early enough to use while shopping for 
a mortgage. 73 FR 44522; July 30, 2008.
     Timing of Disclosures for Closed-End Mortgages. On May 7, 
2009, the Board approved final rules implementing the Mortgage 
Disclosure Improvement Act of 2008 (the MDIA).\2\ The MDIA adds to the 
requirements of the 2008 HOEPA Final Rule regarding transaction-
specific disclosures. Among other things, the MDIA and the final rules 
require early, transaction-specific disclosures for mortgage loans 
secured by dwellings even when the dwelling is not the consumer's 
principal dwelling, and requires waiting periods between the time when 
disclosures are given and consummation of the transaction. 74 FR 23289; 
May 19, 2009.
---------------------------------------------------------------------------

    \2\ The MDIA is contained in Sections 2501 through 2503 of the 
Housing and Economic Recovery Act of 2008, Public Law 110-289, 
enacted on July 30, 2008. The MDIA was later amended by the 
Emergency Economic Stabilization Act of 2008, Public Law 110-343, 
enacted on October 3, 2008.
---------------------------------------------------------------------------

    This proposal would revise the rules for disclosures for closed-end 
credit secured by real property or a consumer's dwelling. The Board 
anticipates reviewing the rules for rescission and reverse mortgages in 
the next phase of the Regulation Z review.

A. Coordination With Disclosures Required Under the Real Estate 
Settlement Procedures Act

    The Board anticipates working with the Department of Housing and 
Urban Development (HUD) to ensure that TILA and Real Estate Settlement 
Procedures Act of 1974 (RESPA) disclosures are compatible and 
complementary, including potentially developing a single disclosure 
form that creditors could use to combine the initial disclosures 
required under TILA and

[[Page 43234]]

RESPA. The two statutes have different purposes but have considerable 
overlap. Harmonizing the two disclosure schemes would ensure that 
consumers receive consistent information under both laws. It may also 
help reduce information overload by eliminating some duplicative 
disclosures. Consumer testing would be used to ensure consumers could 
understand and use the combined disclosures. In the meantime, the Board 
is proposing a revised model TILA form so that commenters can see how 
the Board's proposed revisions to Regulation Z might be applied in 
practice.
    RESPA, which is implemented by HUD's Regulation X, seeks to ensure 
that consumers are provided with timely information about the nature 
and costs of the settlement process and are protected from 
unnecessarily high real estate settlement charges. To this end, RESPA 
mandates that consumers receive information about the costs associated 
with a mortgage loan transaction, and prohibits certain business 
practices. Under RESPA, creditors must provide a GFE within three 
business days after a consumer submits a written application for a 
mortgage loan, which is the same time creditors must provide the early 
TILA disclosure. RESPA also requires a statement of the actual costs 
imposed at loan settlement (HUD-1 settlement statement). In November 
2008, HUD published revised RESPA rules, including new GFE and HUD-1 
settlement statement forms, which lenders, mortgage brokers, and 
settlement agents must use beginning on January 1, 2010. 73 FR 68204; 
Nov. 17, 2008. In addition to revised disclosures of settlement costs, 
the revised GFE now includes loan terms, some of which would also 
appear on the TILA disclosure, such as whether there is a prepayment 
penalty and the borrower's interest rate and monthly payment. The 
revised GFE form was developed through HUD's consumer testing.
    TILA, which is implemented by the Board's Regulation Z, governs the 
disclosure of the APR and certain loan terms. This proposal contains a 
revised model TILA form that was developed through consumer testing. In 
addition to a revised disclosure of the APR and loan terms, the revised 
TILA disclosure would include the total settlement charges that appear 
on the GFE required under RESPA. Total settlement charges would be 
added to the TILA form because consumer testing conducted by the Board 
found that consumers wanted to have settlement charges disclosed on the 
TILA form.
    The proposed revised TILA form and HUD's revised GFE would 
represent significant improvements, but overlap between the two forms 
could be eliminated to reduce information overload and consistency 
issues. There have been previous efforts to develop a combined TILA and 
RESPA disclosure form, which were fueled by the amount, complexity, and 
overlap of information in the disclosures. Under a 1996 congressional 
directive, the Board and HUD studied ways to simplify and improve the 
disclosures. In July 1998, the Board and HUD submitted a joint report 
to Congress that provided a broad outline intended to be a starting 
point for consideration of legislative reform of the mortgage 
disclosure requirements (the 1998 Joint Report).\3\ The 1998 Joint 
Report included a recommendation for combining and simplifying the 
RESPA and TILA disclosure forms to satisfy the requirements of both 
laws. In addition, The 1998 Joint Report recommended that the timing of 
the TILA and RESPA disclosures be coordinated. Recent regulatory 
changes addressed the timing issues so that initial disclosures 
required under TILA and RESPA would be delivered at the same time.
---------------------------------------------------------------------------

    \3\ Bd. of Governors of the Fed. Reserve Sys. and U.S. Dep't of 
Hous. and Urban Dev., Joint Report to the Congress Concerning Reform 
to the Truth in Lending Act and the Real Estate Settlement 
Procedures Act (1998), available at http://www.federalreserve.gov/boarddocs/rptcongress/tila.pdf.
---------------------------------------------------------------------------

B. The Bankruptcy Act's Amendment to TILA

    The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 
(Bankruptcy Act) primarily amended the federal bankruptcy code, but 
also contained several provisions amending TILA. With respect to open-
end and closed-end dwelling-secured credit, the Bankruptcy Act requires 
that the credit application disclosure contain a statement warning 
consumers that if the loan exceeds the fair market value of the 
dwelling, then the interest on that portion of the loan is not tax 
deductible, and the consumer should consult a tax advisor for further 
information on tax deductibility. This proposal would implement this 
Bankruptcy Act provision.

C. The MDIA's Amendments to TILA

    On July 30, 2008, Congress enacted the MDIA.\4\ The MDIA codified 
some of the requirements of the Board's 2008 HOEPA Final Rule, which 
required transaction-specific disclosures to be provided within three 
business days after an application is received and before the consumer 
has paid a fee, other than a fee for obtaining the consumer's credit 
history.\5\ The MDIA also expanded coverage of the early disclosure 
requirement to include loans secured by a dwelling even when it is not 
the consumer's principal dwelling. In addition, the MDIA required 
creditors to mail or deliver early TILA disclosures at least seven 
business days before consummation and provide corrected disclosures if 
the disclosed APR changes in excess of a specified tolerance. The 
consumer must receive the corrected disclosures no later than three 
business days before consummation. The Board implemented these MDIA 
requirements in final rules published May 19, 2009, and effective July 
30, 2009. 74 FR 23289; May 19, 2009.
---------------------------------------------------------------------------

    \4\ As noted, Congress subsequently amended the MDIA with the 
Emergency Economic Stabilization Act of 2008.
    \5\ To ease discussion, the description of the closed-end 
mortgage disclosure scheme includes MDIA's recent amendments to TILA 
and the disclosure timing requirements of the 2008 HOEPA Final Rule 
that will be effective July 30, 2009.
---------------------------------------------------------------------------

    The MDIA also requires payment examples if the interest rate or 
payments can change. Such disclosures are to be formatted in accordance 
with the results of consumer testing conducted by the Board. Those 
provisions of the MDIA will not become effective until January 30, 
2011, or any earlier compliance date established by the Board. This 
proposal would implement those MDIA provisions.

D. Consumer Testing

    A principal goal for the Regulation Z review is to produce revised 
and improved mortgage disclosures that consumers will be more likely to 
understand and use in their decisions, while at the same time not 
creating undue burdens for creditors. Currently, Regulation Z requires 
creditors to provide at application an ARM loan program disclosure and 
the CHARM booklet. An early TILA disclosure is required within three 
business days of application and at least seven business days before 
consummation for closed-end mortgages.
    In 2007, the Board retained a research and consulting firm (ICF 
Macro) that specializes in designing and testing documents to conduct 
consumer testing to help the Board's review of mortgage rules under 
Regulation Z. Working closely with the Board, ICF Macro conducted 
several tests in different cities throughout the United States. The 
testing consisted of four focus groups and eleven rounds of one-on-one 
cognitive interviews. The goals of these focus groups and interviews 
were to learn how consumers shop for

[[Page 43235]]

mortgages and what information consumers read when they receive 
mortgage disclosures, and to assess their understanding of such 
disclosures.
    The consumer testing groups contained participants with a range of 
ethnicities, ages, educational levels, and mortgage behaviors, 
including first-time mortgage shoppers, prime and subprime borrowers, 
and consumers who had obtained one or more closed-end mortgages. For 
each round of testing, ICF Macro developed a set of model disclosure 
forms to be tested. Interview participants were asked to review model 
forms and provide their reactions, and were then asked a series of 
questions designed to test their understanding of the content. Data 
were collected on which elements and features of each form were most 
successful in providing information clearly and effectively. The 
findings from each round of interviews were incorporated in revisions 
to the model forms for the following round of testing.
    Specifically, the Board worked with ICF Macro to develop and test 
several types of closed-end disclosures, including:
     Two Board publications to be provided at application, 
entitled ``Key Questions To Ask About Your Mortgage'' and ``Fixed vs. 
Adjustable Rate Mortgages'';
     An ARM loan program disclosure to be provided at 
application;
     An early TILA disclosure to be provided within three 
business days of application, and again so that the consumer receives 
it at least three business days before consummation;
     An ARM adjustment notice to be provided after 
consummation; and
     A payment option monthly statement to be provided after 
consummation.
    Exploratory focus groups. In February and March 2008 the Board 
worked with ICF Macro to conduct four focus groups with consumers who 
had obtained a mortgage in the previous two years. Two of the groups 
consisted of subprime borrowers and two consisted of prime borrowers, 
with creditworthiness determined by their answers to questions about 
prior financial hardship, difficulties encountered in shopping for 
credit, and the rate on their current mortgage. Each focus group 
consisted of between seven and nine people that discussed issues 
identified by the Board and raised by a moderator from ICF Macro. 
Through these focus groups, the Board gathered information on how 
consumers shop for mortgages, what information consumers currently use 
in making decisions about mortgages, and what perceptions consumers had 
of TILA disclosures currently provided in the shopping and application 
process.
    Cognitive interviews on existing disclosures. In 2008, the Board 
worked with ICF Macro to conduct five rounds of cognitive interviews 
with mortgage customers (seven to eleven participants per round). These 
cognitive interviews consisted of one-on-one discussions with 
consumers, during which consumers described their recent mortgage 
shopping experience and reviewed existing sample mortgage disclosures. 
In addition to learning about shopping behavior, the goals of these 
interviews were: (1) To learn more about what information consumers 
read when they receive current mortgage disclosures; (2) to research 
how easily consumers can find various pieces of information in these 
disclosures; and (3) to test consumers' understanding of certain 
mortgage related words and phrases.
    1. Initial design of disclosures for testing. In the fall of 2008, 
the Board worked with ICF Macro to develop sample mortgage disclosures 
to be used in later rounds of testing, taking into account information 
learned through the focus groups and the cognitive interviews.
    2. Additional cognitive interviews and revisions to disclosures. In 
late 2008 and early 2009, the Board worked with ICF Macro to conduct 
six additional rounds of cognitive interviews (nine or ten participants 
per round), where consumers were asked to view new sample mortgage 
disclosures developed by the Board and ICF Macro. The rounds of 
interviews were conducted sequentially to allow for revisions to the 
testing materials based on what was learned from the testing during 
each previous round.
    Results of testing. Several of the model forms were developed 
through the testing. A report summarizing the results of the testing is 
available on the Board's public Web site: http://www.federalreserve.gov.
    Many consumer testing participants reported that they did not shop 
for a lender or a mortgage. Several stated that they were referred to a 
lender by a realtor, family member or friend, and that they relied on 
that lender to get them a loan. Participants who reported shopping for 
a mortgage relied on originators' oral quotes for interest rates, 
monthly payments, and closing costs. Most participants stated that once 
they had applied for a particular loan and received a TILA disclosure 
they ceased shopping. Some cited the time involved, and the amount of 
documentation required, as factors for limiting their shopping. These 
findings suggest that consumers need information early in the process 
and that information should not be limited to information about ARMs. 
Therefore, the proposal would require creditors to provide key 
information about evaluating loan terms at the time an application form 
is provided, as discussed below.
    1. Disclosures provided to consumers before application. Currently, 
creditors must provide the CHARM booklet before a consumer applies or 
pays a nonrefundable fee, whichever is earlier. The booklet explains 
how ARMs generally work. Testing showed that participants found the 
CHARM booklet too lengthy to be useful, although some liked specific 
elements such as the glossary. In addition, creditors must provide an 
ARM loan program disclosure for each ARM loan program in which the 
consumer expresses an interest, before the consumer applies or has paid 
a nonrefundable fee. The ARM loan program disclosure currently must 
include either a 15-year historical example of rates and payments for a 
$10,000 loan, or the maximum interest rate and payment for a $10,000 
loan originated at the interest rate in effect for the disclosure's 
identified month and year. Many testing participants found the 
narrative form of the current ARM loan program disclosure difficult to 
read and understand. Some participants mistook the historical examples 
to be their actual loan rate and payments. Participants also found the 
content of the disclosure too general to be useful to them when 
comparing between lenders or products, and noted the absence of key 
loan information, such as the interest rate.
    Thus, the proposal would require creditors to provide, for all 
closed-end mortgages, a one-page document that explains the basic 
differences between fixed-rate mortgages and ARMs, and a one-page 
document that would explain potentially risky features of a mortgage in 
a plain-English question and answer format. In addition, the proposal 
would streamline the content of the ARM loan program disclosure to 
highlight in a table form information that participants found most 
useful, such as interest rate and payment adjustments, and to provide 
information about program-specific loan features that could pose 
greater risk, such as prepayment penalties. Consumer testing suggested 
that highlighting such information in a table form improved 
participants' ability to identify and understand the information 
provided about key loan features.
    2. Disclosures provided to consumers after application. Currently, 
creditors

[[Page 43236]]

must provide an early TILA disclosure within three business days after 
application and at least seven business days before consummation, and 
before the consumer has paid a fee other than a fee for obtaining the 
consumer's credit history. If the APR on the early TILA disclosure 
exceeds a certain tolerance before consummation, the creditor must 
provide corrected disclosures that the consumer must receive at least 
three days before consummation. If any term other than the APR becomes 
inaccurate, the creditor must give the corrected disclosure no later 
than at consummation.
    The early TILA disclosure--and any corrected disclosure--must 
provide certain information, such as the loan's annual percentage rate 
(APR), finance charge, amount financed, and total of payments. 
Participants in consumer testing indicated that much of the information 
in the current TILA disclosure was of secondary importance to them when 
considering a loan. Participants consistently looked for the contract 
rate of interest, monthly payment, and in some cases, closing costs. 
Most participants assumed that the APR was the contract rate of 
interest, and that the finance charge was the total of all interest 
they would pay if they kept the loan to maturity. Most identified the 
amount financed as the loan amount. When asked to compare two loan 
offers using redesigned model forms that contained these disclosures, 
few participants used the APR and finance charge to compare the loans. 
In addition, some participants had difficulty determining whether the 
loan tested had a variable or fixed rate and understanding the payment 
schedule's relationship to the changing interest rate. Many did not 
understand what circumstances would trigger a prepayment penalty.
    Thus, the proposal contains a number of revisions to the format and 
content of TILA disclosures to make them clearer and more conspicuous. 
To enhance the effectiveness of the finance charge as a disclosure of 
the true cost of credit, the proposal would require a simpler, more 
inclusive approach. The disclosure of the APR would be enhanced to 
improve consumers' comprehension of the cost of credit. In addition, to 
help consumers determine whether the loan offered is affordable for 
them, creditors would be required to summarize key loan terms and 
highlight interest rate and payment information in a table. Consumer 
testing showed that using special formatting requirements, consistent 
terminology and a minimum 10-point font, would ensure that consumers 
are better able to identify and review key loan terms.
    3. Disclosures required after consummation. Currently, creditors 
must provide advance notice to a consumer before the interest rate and 
monthly payment adjust on an ARM. The ARM adjustment notice must 
provide certain information, including current and prior interest 
rates, the index values upon which the current and prior interest rates 
are based, and the payment that would be required to amortize the loan 
fully at the new interest rate. The Board worked with ICF Macro to 
develop a revised ARM adjustment notice that would enhance consumers' 
ability to identify and understand changes being made to their loan 
terms. Consumer testing of the revised ARM adjustment notice indicated 
that consumers understood the content and were able correctly to 
identify the amount and due date of the new payment. Thus, under the 
proposal, creditors would be required to provide the ARM adjustment 
notice in a revised format that would highlight changes being made to 
the interest rate and the monthly payment, and provide other important 
information, such as the due date of the new payment and the loan 
balance.
    Currently, creditors are not required to provide disclosures after 
consummation for negatively-amortizing loans. The Board worked with ICF 
Macro to develop a monthly statement that compares the amount and the 
impact on the loan balance of a fully-amortizing payment, interest-only 
payment, and minimum payment. Consumer testing of the proposed monthly 
statement indicated that consumers understood the content, easily 
recognized the payment options highlighted in the table, and understood 
that by making only the minimum payment they would be borrowing more 
money and increasing their loan balance. Thus, to improve consumer 
understanding of the risks associated with payment option loans, the 
Board proposes to require, not later than 15 days before a periodic 
payment is due, a monthly statement of payment options that explains 
the impact of payment choice on the loan balance.
    Additional testing during and after the comment period. During the 
comment period, the Board will work with ICF Macro to conduct 
additional testing of model disclosures. After receiving comments from 
the public on the proposal and the proposed disclosure forms, the Board 
will work with ICF Macro to further revise model disclosures based on 
comments received, and to conduct additional rounds of cognitive 
interviews to test the revised disclosures. After the cognitive 
interviews, quantitative testing will be conducted. The goal of the 
quantitative testing is to measure consumers' comprehension of the 
newly-developed disclosures with a larger and more statistically 
representative group of consumers.

E. Other Outreach and Research

    The Board also solicited input from members of the Board's Consumer 
Advisory Council on various issues presented by the review of 
Regulation Z. During 2009, for example, the Council discussed ways to 
improve disclosures for home-secured credit. In addition, Board staff 
met or conducted conference calls with various industry and consumer 
group representatives throughout the review process leading to this 
proposal. Board staff also reviewed disclosures currently provided by 
creditors, the Federal Trade Commission's (FTC) report on consumer 
testing of mortgage disclosures,\6\ HUD's report on consumer testing of 
the GFE,\7\ and other information.
---------------------------------------------------------------------------

    \6\ James M. Lacko and Janis K. Pappalardo, Fed. Trade Comm'n, 
Improving Consumer Mortgage Disclosures: An Empirical Assessment of 
Current and Protoype Disclosure Forms (2007), (``Improving Consumer 
Mortgage Disclosures'') available at http://www2.ftc.gov/os/2007/06/P025505MortgageDisclosureReport.pdf.
    \7\ U.S. Dep't. of Hous. and Urban Dev., Summary Report: 
Consumer Testing of the Good Faith Estimate Form (GFE) (2008), 
available at http://www.huduser.org/publications/pdf/Summary_Report_GFE.pdf.
---------------------------------------------------------------------------

F. Reviewing Regulation Z in Stages

    The Board is proceeding with a review of Regulation Z in stages. 
This proposal largely contains revisions to rules affecting closed-end 
credit transactions secured by real property or a dwelling. Published 
elsewhere in today's Federal Register is the Board's proposal regarding 
disclosures for open-end credit secured by a consumer's dwelling. 
Closed-end mortgages are distinct from other TILA-covered products, and 
conducting a review in stages allows for a manageable process. To 
minimize compliance burden for creditors offering other closed-end 
credit, as well as home-secured credit, the proposed rules that would 
apply only to closed-end home-secured credit are organized in sections 
separate from the general disclosure requirements for closed-end rules. 
Although this reorganization would increase the size of the regulation 
and commentary, the Board believes a clear delineation of rules for 
closed-end, home-secured loans pending the review of the remaining 
closed-end rules provides a clear compliance benefit to creditors.

[[Page 43237]]

G. Implementation Period

    The Board contemplates providing creditors sufficient time to 
implement any revisions that may be adopted. The Board seeks comment on 
an appropriate implementation period.

IV. The Board's Rulemaking Authority

    TILA Section 105. TILA mandates that the Board prescribe 
regulations to carry out the purposes of the act. TILA also 
specifically authorizes the Board, among other things, to:
     Issue regulations that contain such classifications, 
differentiations, or other provisions, or that provide for such 
adjustments and exceptions for any class of transactions, that in the 
Board's judgment are necessary or proper to effectuate the purposes of 
TILA, facilitate compliance with the act, or prevent circumvention or 
evasion. 15 U.S.C. 1604(a).
     Exempt from all or part of TILA any class of transactions 
if the Board determines that TILA coverage does not provide a 
meaningful benefit to consumers in the form of useful information or 
protection. The Board must consider factors identified in the act and 
publish its rationale at the time it proposes an exemption for comment. 
15 U.S.C. 1604(f).
    In the course of developing the proposal, the Board has considered 
the views of interested parties, its experience in implementing and 
enforcing Regulation Z, and the results obtained from testing various 
disclosure options in controlled consumer tests. For the reasons 
discussed in this notice, the Board believes this proposal is 
appropriate pursuant to the authority under TILA Section 105(a).
    Also, as explained in this notice, the Board believes that the 
specific exemptions proposed are appropriate because the existing 
requirements do not provide a meaningful benefit to consumers in the 
form of useful information or protection. In reaching this conclusion 
with each proposed exemption, the Board considered (1) the amount of 
the loan and whether the disclosure provides a benefit to consumers who 
are parties to the transaction involving a loan of such amount; (2) the 
extent to which the requirement complicates, hinders, or makes more 
expensive the credit process; (3) the status of the borrower, including 
any related financial arrangements of the borrower, the financial 
sophistication of the borrower relative to the type of transaction, and 
the importance to the borrower of the credit, related supporting 
property, and coverage under TILA; (4) whether the loan is secured by 
the principal residence of the borrower; and (5) whether the exemption 
would undermine the goal of consumer protection. The rationales for 
these proposed exemptions are explained in part VI below.
    TILA Section 129(l)(2). TILA also authorizes the Board to prohibit 
acts or practices in connection with:
     Mortgage loans that the board finds to be unfair, 
deceptive, or designed to evade the provisions of HOEPA; and
     Refinancing of mortgage loans that the Board finds to be 
associated with abusive lending practices or that are otherwise not in 
the interest of the borrower.
    The authority granted to the Board under TILA Section 129(l)(2), 15 
U.S.C. 1639(l)(2), is broad. It reaches mortgage loans with rates and 
fees that do not meet HOEPA's rate or fee trigger in TILA Section 
103(aa), 15 U.S.C. 1602(aa), as well as mortgage loans not covered 
under that section, such as home purchase loans. Moreover, while 
HOEPA's statutory restrictions apply only to creditors and only to loan 
terms or lending practices, Section 129(l)(2) is not limited to acts or 
practices by creditors, nor is it limited to loan terms or lending 
practices. See 15 U.S.C. 1639(l)(2). It authorizes protections against 
unfair or deceptive practices ``in connection with mortgage loans,'' 
and it authorizes protections against abusive practices ``in connection 
with refinancing of mortgage loans.'' Thus, the Board's authority is 
not limited to regulating specific contractual terms of mortgage loan 
agreements; it extends to regulating loan-related practices generally, 
within the standards set forth in the statute.
    HOEPA does not set forth a standard for what is unfair or 
deceptive, but the Conference Report for HOEPA indicates that, in 
determining whether a practice in connection with mortgage loans is 
unfair or deceptive, the Board should look to the standards employed 
for interpreting State unfair and deceptive trade practices statutes 
and the Federal Trade Commission Act (FTC Act), Section 5(a), 15 U.S.C. 
45(a).\8\
---------------------------------------------------------------------------

    \8\ H.R. Rep. 103-652, at 162 (1994) (Conf. Rep.).
---------------------------------------------------------------------------

    Congress has codified standards developed by the Federal Trade 
Commission (FTC) for determining whether acts or practices are unfair 
under Section 5(a), 15 U.S.C. 45(a).\9\ Under the FTC Act, an act or 
practice is unfair when it causes or is likely to cause substantial 
injury to consumers which is not reasonably avoidable by consumers 
themselves and not outweighed by countervailing benefits to consumers 
or to competition. In addition, in determining whether an act or 
practice is unfair, the FTC is permitted to consider established public 
policies, but public policy considerations may not serve as the primary 
basis for an unfairness determination.\10\
---------------------------------------------------------------------------

    \9\ See 15 U.S.C. 45(n); Letter from Commissioners of the FTC to 
the Hon. Wendell H. Ford, Chairman, and the Hon. John C. Danforth, 
Ranking Minority Member, Consumer Subcomm. of the H. Comm. on 
Commerce, Science, and Transp. (Dec. 17, 1980).
    \10\ 15 U.S.C. 45(n).
---------------------------------------------------------------------------

    The FTC has interpreted these standards to mean that consumer 
injury is the central focus of any inquiry regarding unfairness.\11\ 
Consumer injury may be substantial if it imposes a small harm on a 
large number of consumers, or if it raises a significant risk of 
concrete harm.\12\ The FTC looks to whether an act or practice is 
injurious in its net effects.\13\ The FTC has also observed that an 
unfair act or practice will almost always reflect a market failure or 
market imperfection that prevents the forces of supply and demand from 
maximizing benefits and minimizing costs.\14\ In evaluating unfairness, 
the FTC looks to whether consumers' free market decisions are 
unjustifiably hindered.\15\
---------------------------------------------------------------------------

    \11\ Statement of Basis and Purpose and Regulatory Analysis, 
Credit Practices Rule, 42 FR 7740, 7743; Mar. 1, 1984 (Credit 
Practices Rule).
    \12\ Letter from Commissioners of the FTC to the Hon. Wendell H. 
Ford, Chairman, and the Hon. John C. Danforth, Ranking Minority 
Member, Consumer Subcomm. of the H. Comm. on Commerce, Science, and 
Transp., n.12 (Dec. 17, 1980).
    \13\ Credit Practices Rule, 42 FR at 7744.
    \14\ Id.
    \15\ Id.
---------------------------------------------------------------------------

    The FTC has also adopted standards for determining whether an act 
or practice is deceptive (though these standards, unlike unfairness 
standards, have not been incorporated into the FTC Act).\16\ First, 
there must be a representation, omission or practice that is likely to 
mislead the consumer. Second, the act or practice is examined from the 
perspective of a consumer acting reasonably in the circumstances. 
Third, the representation, omission, or practice must be material. That 
is, it must be likely to affect the consumer's conduct or decision with 
regard to a product or service.\17\
---------------------------------------------------------------------------

    \16\ Letter from James C. Miller III, Chairman, FTC to the Hon. 
John D. Dingell, Chairman, H. Comm. on Energy and Commerce (Oct. 14, 
1983) (Dingell Letter).
    \17\ Dingell Letter at 1-2.
---------------------------------------------------------------------------

    Many States also have adopted statutes prohibiting unfair or 
deceptive acts or practices, and these statutes employ a variety of 
standards, many of them different from the standards

[[Page 43238]]

currently applied to the FTC Act. A number of States follow an 
unfairness standard formerly used by the FTC. Under this standard, an 
act or practice is unfair where it offends public policy; or is 
immoral, unethical, oppressive, or unscrupulous; and causes substantial 
injury to consumers.\18\
---------------------------------------------------------------------------

    \18\ See, e.g., Kenai Chrysler Ctr., Inc. v. Denison, 167 P.3d 
1240, 1255 (Alaska 2007) (quoting FTC v. Sperry & Hutchinson Co., 
405 U.S. 233, 244-45 n.5 (1972)); State v. Moran, 151 N.H. 450, 452, 
861 A.2d 763, 755-56 (N.H. 2004) (concurrently applying the FTC's 
former test and a test under which an act or practice is unfair or 
deceptive if ``the objectionable conduct * * * attain[s] a level of 
rascality that would raise an eyebrow of someone inured to the rough 
and tumble of the world of commerce.'') (citation omitted); Robinson 
v. Toyota Motor Credit Corp., 201 Ill. 2d 403, 417-418, 775 N.E.2d 
951, 961-62 (2002) (quoting 405 U.S. at 244-45 n.5).
---------------------------------------------------------------------------

    In developing proposed rules under TILA Section 129(l)(2)(A), 15 
U.S.C. 1639(l)(2)(A), the Board has considered the standards currently 
applied to the FTC Act's prohibition against unfair or deceptive acts 
or practices, as well as the standards applied to similar State 
statutes.

V. Discussion of Major Proposed Revisions

    The goal of the proposed revisions is to improve the effectiveness 
of the Regulation Z disclosures that must be provided to consumers for 
closed-end credit transactions secured by real property or a dwelling. 
To shop for and understand the cost of home-secured credit, consumers 
must be able to identify and comprehend the key terms of mortgages. But 
the terms and conditions for mortgage transactions can be very complex. 
The proposed revisions to Regulation Z are intended to provide the most 
essential information to consumers when the information would be most 
useful to them, with content and formats that are clear and 
conspicuous. The proposed revisions are expected to improve consumers' 
ability to make informed credit decisions and enhance competition among 
creditors. Many of the changes are based on the consumer testing that 
was conducted in connection with the review of Regulation Z.
    In considering the proposed revisions, the Board sought to ensure 
that the proposal would not reduce access to credit, and sought to 
balance the potential benefits for consumers with the compliance 
burdens imposed on creditors. For example, the proposed revisions seek 
to provide greater certainty to creditors in identifying what costs 
must be disclosed for mortgages, and how those costs must be disclosed. 
More effective disclosures may also reduce confusion and 
misunderstanding, which may also ease creditors' costs relating to 
consumer complaints and inquiries.

A. Disclosures at Application

    Currently, Regulation Z requires pre-application disclosures only 
for variable-rate transactions. For these transactions, creditors are 
required to provide the CHARM booklet and a loan program disclosure 
that provides twelve items of information at the time an application 
form is provided or before the consumer pays a nonrefundable fee, 
whichever is earlier.
    ``Key Questions to Ask about Your Mortgage'' publication. Since 
1987, the number of loan products and product features has grown, 
providing consumers with more choices. However, the growth in loan 
features and products has also made the decision-making process more 
complex for consumers. The proposal would require creditors to provide 
to consumers a one-page Board publication entitled, ``Key Questions to 
Ask about Your Mortgage.'' Creditors would be required to provide this 
document for all closed-end loans secured by real property or a 
dwelling, not just variable-rate loans, before the consumer applies for 
a loan or pays a nonrefundable fee, whichever is earlier. The 
publication would inform consumers in a plain-English question and 
answer format about potentially risky features, such as interest-only, 
negative amortization, and prepayment penalties. To enable consumers to 
track the presence or absence of potentially risky features throughout 
the mortgage transaction process, the key questions and answers 
provided in this one-page document would also be included in the ARM 
loan program disclosure and the early and final TILA disclosures.
    ``Fixed vs. Adjustable Rate Mortgages'' publication. Instead of the 
CHARM booklet, the proposal would require creditors to provide a one-
page Board publication entitled, ``Fixed vs. Adjustable Rate 
Mortgages'' for all closed-end loans secured by real property or a 
dwelling, not just variable-rate loans. The publication would contain 
an explanation of the basic differences between fixed-rate mortgages 
and ARMs. Although the requirement to provide a CHARM booklet would be 
eliminated, the Board would continue to publish the CHARM booklet as a 
consumer-education publication.
    ARM loan program disclosure. Currently, for each variable-rate loan 
program in which a consumer expresses an interest, creditors must 
provide certain information, including the index and margin to be used 
to calculate interest rates and payments, and either a 15-year 
historical example of rates and payments for a $10,000 loan, or the 
maximum interest rate and payment for a $10,000 loan originated at the 
interest rate in effect for the disclosure's identified month and year. 
Based on consumer testing, the proposal would simplify the ARM loan 
program disclosure to focus on the interest rate and payment and the 
potential risks associated with ARMs. Information on how to calculate 
payments, and the effect of rising interest rates on monthly payments 
would be moved to the early TILA disclosure provided after application. 
Placing the information there will allow the creditor to customize the 
information to the consumer's potential loan, making the information 
more useful to consumers. The proposed ARM loan program disclosure 
would be provided in a tabular question and answer format to enable 
consumers to easily locate the most important information.

B. Disclosures Within Three Days After Application

    TILA and Regulation Z currently require creditors to provide an 
early TILA disclosure within three business days after application and 
at least seven business days before consummation, and before the 
consumer has paid a fee other than a fee for obtaining the consumer's 
credit history. If the APR on the early TILA disclosure exceeds a 
certain tolerance before consummation, the creditor must provide 
corrected disclosures that the consumer must receive at least three 
days before consummation. If any term other than the APR becomes 
inaccurate, the creditor must give the corrected disclosure no later 
than at consummation.
    The early TILA disclosure, and any corrected disclosure, must 
include certain loan information, including the amount financed, the 
finance charge, the APR, the total of payments, and the amount and 
timing of payments. The finance charge is the sum of all credit-related 
charges, but excludes a variety of fees and charges. TILA requires that 
the finance charge and the APR be disclosed more conspicuously than 
other information. The APR is calculated based on the finance charge 
and is meant to be a single, unified number to help consumers 
understand the total cost of credit.
    Calculation of the finance charge. The proposal contains a number 
of revisions to the calculation of the finance charge and the 
disclosure of the finance charge and the APR to improve consumers'

[[Page 43239]]

understanding of the cost of credit. Currently, TILA and Regulation Z 
permit creditors to exclude several fees or charges from the finance 
charge, including certain fees or charges imposed by third party 
closing agents; certain premiums for credit or property insurance or 
fees for debt cancellation or debt suspension coverage, if the creditor 
meets certain conditions; security interest charges; and real-estate 
related fees, such as title examination or document preparation fees.
    Consumer groups, creditors, and government agencies have long been 
dissatisfied with the ``some fees in, some fees out'' approach to the 
finance charge. Consumer groups and others believe that the current 
approach obscures the true cost of credit. They contend that this 
approach creates incentives for creditors to shift the cost of credit 
from the interest rate to ancillary fees excluded from the finance 
charge. They further contend that this approach undermines the purpose 
of the APR, which is to express in a single figure the total cost of 
credit. Creditors maintain that consumers are confused by the APR and 
that the current approach creates significant regulatory burdens. They 
contend that determining which fees are or are not included in the 
finance charge is overly complex and creates litigation risk.
    The Board proposes to use its exception and exemption authority to 
revise the finance charge calculation for closed-end mortgages, 
including HOEPA loans. The proposal would maintain TILA's definition of 
a ``finance charge'' as a fee or charge payable directly or indirectly 
by the consumer and imposed directly or indirectly by the creditor as 
an incident to the extension of credit. However, the proposal would 
require the finance charge to include charges by third parties if the 
creditor requires the use of a third party as a condition of or 
incident to the extension of credit (even if the consumer chooses the 
third party), or if the creditor retains a portion of the third-party 
charge (to the extent of the portion retained). Charges that would be 
incurred in a comparable cash transaction, such as transfer taxes, 
would continue to be excluded from the finance charge. Under this 
approach, consumers would benefit from having a finance charge and APR 
disclosure that better represent the cost of credit, undiluted by 
myriad exclusions for various fees and charges. This approach would 
cause more loans to be subject to the special protections of the 
Board's 2008 HOEPA Final Rule, special disclosures and restrictions for 
HOEPA loans, and certain State anti-predatory lending laws. However, 
the proposal could also reduce compliance burdens, regulatory 
uncertainty, and litigation risks for creditors.
    Disclosure of the finance charge and the APR. Currently, creditors 
are required to disclose the loan's ``finance charge'' and ``annual 
percentage rate,'' using those terms, more conspicuously than the other 
required disclosures. Consumer testing indicated that consumers do not 
understand the term ``finance charge.'' Most consumers believe the term 
refers to the total of all interest they would pay if they keep the 
loan to maturity, but do not realize that it includes the fees and 
costs associated with the loan. For these reasons, the proposal 
replaces the term ``finance charge'' with ``interest and settlement 
charges'' to make clear it is more than interest, and the disclosure 
would no longer be more conspicuous than the other required 
disclosures.
    In addition, the disclosure of the APR would be enhanced to improve 
consumers' comprehension of the cost of credit. Under the proposal, 
creditors would be required to disclose the APR in 16-point font in 
close proximity to a graph that compares the consumer's APR to the 
HOEPA average prime offer rate for borrowers with excellent credit and 
the HOEPA threshold for higher-priced loans. This disclosure would put 
the APR in context and help consumers understand whether they are being 
offered a loan that comports with their creditworthiness.
    Interest rate and payment summary. Currently, creditors are 
required to disclose the number, amount, and timing of payments 
scheduled to repay the loan. Under the MDIA's amendments to TILA, 
creditors will be required to provide examples of adjustments to the 
regularly required payment based on the change in interest rates 
specified in the contract. Consumer testing consistently indicated that 
consumers shop for and evaluate a mortgage based on the contract 
interest rate and the monthly payment, but consumers have difficulty 
understanding such terms using the current TILA disclosure. Under the 
proposal, creditors would be required to disclose in a tabular format 
the contract interest rate together with the corresponding monthly 
payment, including escrows for taxes and property and/or mortgage 
insurance. Special disclosure requirements would be imposed for 
adjustable-rate or step-rate loans to show the interest rate and 
payment at consummation, the maximum interest rate and payment at first 
adjustment, and the highest possible maximum interest rate and payment. 
Additional special disclosures would be required for loans with 
negatively-amortizing payment options, introductory interest rates, 
interest-only payments, and balloon payments.
    Disclosure of other terms. In addition to the interest rate and 
monthly payment, consumer testing indicated that consumers benefit from 
the disclosure of other key terms in a clear format. Thus, the proposal 
would require creditors to provide in a tabular format information 
about the loan amount, the loan term, the loan type (such as fixed-
rate), the total settlement charges, and the maximum amount of any 
prepayment penalty. In addition, creditors would be required to 
disclose in a tabular question and answer format the ``Key Questions 
about Risk,'' which would include information about potentially risky 
loan features such as prepayment penalties, interest-only payments, and 
negative amortization.

C. Disclosures Three Days Before Consummation

    As noted above, the creditor is required to provide the early TILA 
disclosure to the consumer within three business days after receiving 
the consumer's written application and at least seven business days 
before consummation, and before the consumer has paid a fee other than 
a fee for obtaining the consumer's credit history. If the APR on the 
early TILA disclosure exceeds a certain tolerance before consummation, 
the creditor must provide corrected disclosures that the consumer must 
receive at least three days before consummation. If any term other than 
the APR becomes inaccurate, the creditor must give the corrected 
disclosure no later than at consummation. The consumer may waive the 
seven- and three-day waiting periods for a bona fide personal financial 
emergency.
    There are, however, long-standing concerns about consumers facing 
different loan terms or increased settlement costs at closing. Members 
of the Board's Consumer Advisory Council, participants in public 
hearings, and commenters on prior Board rulemakings have expressed 
concern about consumers not learning of changes to credit terms or 
settlement charges until consummation. In addition, consumer testing 
indicated that consumers are often surprised at closing by changes in 
important loan terms, such as the addition of an adjustable-rate 
feature. Despite these changes, consumers report that they have 
proceeded with closing because they lacked alternatives (especially in 
the case of a home purchase loan), or

[[Page 43240]]

were told that they could easily refinance with better terms in the 
near future.
    For these reasons, the proposal would require the creditor to 
provide a final TILA disclosure that the consumer must receive at least 
three business days before consummation, even if no terms have changed 
since the early TILA disclosure was provided. In addition, the Board is 
proposing two alternative approaches to address changes to loan terms 
and settlement charges during the three-business-day waiting period. 
Under the first approach, if any terms change during the three-
business-day waiting period, the creditor would be required to provide 
another final TILA disclosure and wait an additional three business 
days before consummation could occur. Under the second approach, 
creditors would be required to provide another final TILA disclosure, 
but would have to wait an additional three business days before 
consummation only if the APR exceeds a designated tolerance or the 
creditor adds an adjustable-rate feature. Otherwise, the creditor would 
be permitted to provide the new final TILA disclosure at consummation.

D. Disclosures After Consummation

    Regulation Z requires certain notices to be provided after 
consummation. Currently, for variable-rate transactions, creditors are 
required to provide advance notice of an interest rate adjustment. 
There are no disclosure requirements for other post-consummation 
events.
    ARM adjustment notice. Currently, for variable-rate transactions, 
creditors are required to provide a notice of interest rate adjustment 
at least 25, but no more than 120, calendar days before a payment at a 
new level is due. In addition, creditors must provide an adjustment 
notice at least once each year during which an interest rate adjustment 
is implemented without an accompanying payment change. These 
disclosures must include certain information, including the current and 
prior interest rates and the index values upon which the current and 
prior interest rates are based.
    Under the proposal, creditors would be required to provide the ARM 
adjustment notice at least 60 days before payment at a new level is 
due. This proposal seeks to address concerns that consumers need more 
than 25 days to seek out a refinancing in the event of a payment 
adjustment. This notice is particularly critical for subprime borrowers 
who may be more vulnerable to payment shock and may have a more 
difficult time refinancing a loan.
    Payment option statement. Currently, creditors are not required to 
provide disclosures after consummation for negatively amortizing loans, 
such as payment option loans. To ensure consumers receive information 
about the risks associated with payment option loans (e.g., payment 
shock), the proposal would require creditors to provide a periodic 
statement for payment option loans that have negative amortization. The 
disclosure would contain a table with a comparison of the amount and 
impact on the loan balance and property equity of a fully-amortizing 
payment, interest-only payment, and minimum negatively-amortizing 
payment. This disclosure would be provided not later than 15 days 
before a periodic payment is due.
    Creditor-placed property insurance notice. Creditors are not 
currently required under Regulation Z to provide notice before charging 
for creditor-placed property insurance. Industry reports indicate that 
the volume of creditor-placed property insurance has increased 
significantly. Consumers struggling financially may fail to pay 
required property insurance premiums unaware that creditors have the 
right to obtain such insurance on their behalf and add the premiums to 
their outstanding loan balance. Such premiums are often considerably 
more expensive than premiums for insurance obtained by the consumer. 
Thus, under the proposal, creditors would be required to provide notice 
to consumers of the cost and coverage of creditor-placed property 
insurance at least 45 days before a charge is imposed for such 
insurance. In addition, creditors would be required to provide 
consumers with evidence of such insurance within 15 days of imposing a 
charge for the insurance.

E. Prohibitions on Payments to Loan Originators and Steering

    Currently, creditors pay commissions to loan originators in the 
form of ``yield spread premiums.'' A yield spread premium is the 
present dollar value of the difference between the lowest interest rate 
a lender would have accepted on a particular transaction and the 
interest rate a loan originator actually obtained for the lender. Some 
or all of this dollar value is usually paid to the loan originator by 
the creditor as a form of compensation, though it may also be applied 
to other closing costs.
    Yield spread premiums can create financial incentives to steer 
consumers to riskier loans for which loan originators will receive 
greater compensation. Consumers generally are not aware of loan 
originators' conflict of interest and cannot reasonably protect 
themselves against it. Yield spread premiums may provide some benefit 
to consumers because consumers do not have to pay loan originators' 
compensation in cash or through financing. However, the Board believes 
that this benefit may be outweighed by costs to consumers, such as when 
consumers pay a higher interest rate or obtain a loan with terms the 
consumer may not otherwise have chosen, such as a prepayment penalty or 
an adjustable rate.
    In response to these concerns, the 2007 HOEPA Proposed Rule 
attempted to address the potential unfairness through disclosure. The 
proposal would have prohibited a creditor from paying a mortgage broker 
more than the consumer had previously agreed in writing that the 
mortgage broker would receive. A mortgage broker would have had to 
enter into the written agreement with the consumer, before accepting 
the consumer's loan application and before the consumer paid any fee in 
connection with the transaction (other than a fee for obtaining a 
credit report). The agreement also would have disclosed (1) that the 
consumer ultimately would bear the cost of the entire compensation even 
if the creditor paid part of it directly; and (2) that a creditor's 
payment to a broker could influence the broker to offer the consumer 
loan terms or products that would not be in the consumer's interest or 
the most favorable the consumer could obtain.
    Based on analysis of comments received on the 2007 HOEPA Proposed 
Rule, the results of consumer testing, and other information, the Board 
withdrew the proposed provisions relating to broker compensation in the 
2008 HOEPA Final Rule. In particular, the Board's consumer testing 
raised concerns that the proposed agreement and disclosures would 
confuse consumers and undermine their decisionmaking rather than 
improve it. Participants often concluded, not necessarily correctly, 
that brokers are more expensive than creditors. Many also believed that 
brokers would serve their best interests notwithstanding the conflict 
resulting from the relationship between interest rates and brokers' 
compensation.\19\ The proposed disclosures presented a significant risk 
of misleading consumers regarding both the relative costs of brokers 
and lenders and the role of brokers in their

[[Page 43241]]

transactions. In withdrawing the broker compensation provisions of the 
HOEPA proposal, the Board stated it would continue to explore options 
to address potential unfairness associated with loan originator 
compensation arrangements.
---------------------------------------------------------------------------

    \19\ See Macro International, Inc., Consumer Testing of Mortgage 
Broker Disclosures (July 10, 2008), available at http://www.federalreserve.gov/newsevents/press/bcreg/20080714regzconstest.pdf.
---------------------------------------------------------------------------

    To address the concerns related to loan originator compensation, 
the Board proposes to prohibit payments to loan originators that are 
based on the loan's terms and conditions. This prohibition would not 
apply to payments that consumers make directly to loan originators. The 
Board solicits comment on an alternative that would allow loan 
originators to receive payments that are based on the principal loan 
amount, which is a common practice today. If a consumer directly pays 
the loan originator, the proposal would prohibit the loan originator 
from also receiving compensation from any other party in connection 
with that transaction. These rules would be proposed under the Board's 
HOEPA authority to prohibit unfair or deceptive acts or practices in 
connection with mortgage loans.
    Under the proposal, a ``loan originator'' would include both 
mortgage brokers and employees of creditors who perform loan 
origination functions. The 2007 HOEPA Proposed Rule covered only 
mortgage brokers. However, a creditor's loan officers frequently have 
the same discretion as mortgage brokers to modify loans' terms to 
increase their compensation, and there is evidence that creditors' loan 
officers engage in such practices.
    The Board also seeks comment on an optional proposal that would 
prohibit loan originators from directing or ``steering'' consumers to a 
particular creditor's loan products based on the fact that the loan 
originator will receive additional compensation even when that loan may 
not be in the consumer's best interest. The Board solicits comment on 
whether the proposed rule would be effective in achieving the stated 
purpose. In addition, the Board solicits comment on the feasibility and 
practicality of such a rule, its enforceability, and any unintended 
adverse effects the rule might have.

F. Additional Protections

    Credit insurance or debt cancellation or debt suspension coverage 
eligibility for all loan transactions. Currently, creditors may exclude 
from the finance charge a premium or charge for credit insurance or 
debt cancellation or debt suspension coverage if the creditor discloses 
the voluntary nature and cost of the product, and the consumer signs or 
initials an affirmative request for the product. Concerns have been 
raised about creditors who sometimes offer products that contain 
eligibility restrictions, specifically age or employment restrictions, 
but do not evaluate whether applicants for the products actually meet 
the eligibility restrictions at the time of enrollment. Subsequently, 
consumers' claims for benefits may be denied because they did not meet 
the eligibility restrictions at the time of enrollment. Consumers are 
presumably unaware that they are paying for a product for which they 
will derive no benefit. Under the proposal, creditors would be required 
to determine whether the consumer meets the age and/or employment 
eligibility criteria at the time of enrollment in the product and 
provide a disclosure that such a determination has been made. The 
proposal is not limited to mortgage transactions and would apply to all 
closed-end and open-end transactions.

VI. Section-by-Section Analysis

Section 226.1 Authority, Purpose, Coverage, Organization, Enforcement, 
and Liability

1(b) Purpose
    Section 226.1(b) would be revised to reflect the fact that Sec.  
226.35 prohibits certain acts or practices for transactions secured by 
the consumer's principal dwelling. In addition, Sec.  226.1(b) would be 
revised to reflect the proposal to broaden the scope of Sec.  226.36 
(from transactions secured by the consumer's principal dwelling to all 
transactions secured by real property or a dwelling).
1(d) Organization
1(d)(5)
    The Board proposes to revise Sec.  226.1(d)(5) to reflect the scope 
of Sec. Sec.  226.32, 226.34, and 226.35. The Board would also revise 
Sec.  226.1(d)(5) to reflect the proposed change in the scope of Sec.  
226.36, and the addition of new Sec. Sec.  226.37 and 226.38.

Section 226.2 Definitions and Rules

2(a) Definitions
2(a)(24) Residential Mortgage Transaction
    Regulation Z, Sec.  226.2(a)(24), defines a ``residential mortgage 
transaction'' as ``a transaction in which a mortgage, deed of trust, 
purchase money security interest arising under an installment sales 
contract, or equivalent consensual security interest is created or 
retained in the consumer's principal dwelling to finance the 
acquisition or initial construction of that dwelling.'' Currently, 
comment 2(a)(24)-1 states that the term is important in five provisions 
in Regulation Z, including assumption under Sec. Sec.  226.18(q) and 
226.20(b). However, the proposed rule would expand coverage of the 
assumption rules to cover any closed-end credit transaction secured by 
real property or a dwelling. Thus, the Board proposes to revise 
comments 2(a)(24)-1, -2, and -5 to reflect this change.

Section 226.3 Exempt Transactions

3(b) Credit Over $25,000 Not Secured by Real Property or a Dwelling
    TILA and Regulation Z cover all credit transactions that are 
secured by real property or a principal dwelling in which the amount 
financed exceeds $25,000. 15 U.S.C. 1603(3). Section 226.3(b), which 
implements TILA Section 104(3), provides that credit transactions over 
$25,000 not secured by real property, or by personal property used or 
expected to be used as the principal dwelling of the consumer, are 
exempt from Regulation Z. 15 U.S.C. 1603(3).
    As noted in the discussion under Sec. Sec.  226.19 and 226.38, the 
Board proposes to require creditors to provide certain disclosures for 
all closed-end transactions secured by real property or a dwelling, not 
just principal dwellings. However, the Board recognizes that, if 
personal property that is a dwelling but not the borrower's principal 
dwelling secures a loan of over $25,000, it is not covered by TILA in 
the first instance. For example, Regulation Z does not apply to a 
$26,000 loan that is secured by a manufactured home that is not the 
consumer's second or vacation home. Notwithstanding this exemption, the 
Board solicits comment on whether consumers in these transactions 
receive adequate information regarding their loan terms and are 
afforded sufficient protections. The Board also seeks comment on the 
relative benefits and costs of applying Regulation Z to these 
transactions.

Section 226.4 Finance Charge

Background
    Section 106(a) of TILA provides that the finance charge in a 
consumer credit transaction is ``the sum of all charges, payable 
directly or indirectly by the person to whom the credit is extended, 
and imposed directly or indirectly by the creditor as an incident to 
the extension of credit.'' 15 U.S.C. 1605(a). The finance charge does 
not include charges of a type payable in a comparable cash transaction. 
Id. The finance charge does not include fees or charges imposed by 
third party closing agents, such as settlement agents, attorneys, and 
title companies, if the creditor does not require the imposition

[[Page 43242]]

of those charges or the services provided, and the creditor does not 
retain the charges. Id. Examples of finance charges include, among 
other things, interest, points, service or carrying charges, credit 
report fees, and credit insurance premiums. Id.
    The finance charge is significant for two reasons. First, it is 
meant to represent, in dollar terms, the ``cost of credit'' in whatever 
form imposed by the creditor or paid by the borrower. Second, the 
finance charge is used in calculating the annual percentage rate (APR) 
for the loan, 15 U.S.C. 1606, which represents the ``cost of credit, 
expressed as a yearly rate.'' Sec.  226.22(a)(1). Together, these two 
interrelated terms are among the most important terms disclosed to 
consumers under TILA.
    While the test for determining what is included in a finance charge 
is very broad, TILA Section 106 excludes from the definition of the 
finance charge various fees or charges. The statute excludes from the 
finance charge: Premiums for credit insurance if coverage is not 
required to obtain credit, certain disclosures are provided to the 
consumer, and the consumer affirmatively requests the insurance in 
writing; and premiums for property and liability insurance written in 
connection with a consumer credit transaction if the insurance may be 
obtained from a person of the consumer's choice and certain disclosures 
are provided to the consumer. 15 U.S.C. 1605(b) and (c). Statutory 
exclusions also apply to certain security interest charges, including: 
(1) Fees or charges required by law and paid to public officials for 
determining the existence of, or for perfecting, releasing, or 
satisfying, any security related to the credit transaction; (2) 
premiums for insurance purchased instead of perfecting any security 
interest otherwise required by the creditor; and (3) taxes levied on 
security instruments or the documents evidencing indebtedness if 
payment of those taxes is required to record the instrument securing 
the evidence of indebtedness. 15 U.S.C. 1605(d). Finally, the statute 
excludes from the finance charge various fees in connection with loans 
secured by real property, such as title examination fees, title 
insurance premiums, fees for preparation of loan-related documents, 
escrows for future payment of taxes and insurance, notary fees, 
appraisal fees, pest and flood-hazard inspection fees, and credit 
report fees. 15 U.S.C. 1605(e).
    Through the exclusions described above, the Congress has adopted a 
``some fees in, some fees out'' approach to the finance charge with 
some fees automatically excluded from the finance charge and other fees 
excluded from the finance charge provided certain conditions are met. 
The regulation tracks this approach with a three-tiered approach to the 
classification of fees or charges: (1) Some fees or charges are finance 
charges; (2) some fees and charges are not finance charges; and (3) 
some fees and charges are not finance charges, but only if certain 
conditions are met. As a result, neither the finance charge nor the 
corresponding APR disclosed to the consumer reflect the consumer's 
total cost of credit.
    Section 226.4(a) defines the finance charge as ``the cost of 
consumer credit as a dollar amount.'' Consistent with TILA Section 
106(a), the finance charge includes ``any charge payable directly or 
indirectly by the consumer and imposed directly or indirectly by the 
creditor as an incident to or a condition of the extension of credit'' 
and does not include ``any charge of a type payable in a comparable 
cash transaction.'' Sec.  226.4(a). The finance charge also includes 
fees and amounts charged by someone other than the creditor if the 
creditor requires the use of a third party as a condition of or 
incident to the extension of credit, even if the consumer can choose 
the third party, or if the creditor retains a portion of the third 
party charge (to the extent of the portion retained). Sec.  
226.4(a)(1).
    The Board has adopted provisions in the regulation to give effect 
to each of the statutory exclusions and conditional exclusions from the 
finance charge. Closing agent charges are not included in the finance 
charge unless the creditor requires the particular services for which 
the consumer is charged, requires imposition of the charge, or retains 
a portion of the charge (to the extent of the portion retained). Sec.  
226.4(a)(2). Premiums for credit insurance may be excluded from the 
finance charge if insurance coverage is not required by the creditor, 
certain disclosures are provided to the consumer, and the consumer 
affirmatively requests the insurance coverage in a writing signed or 
initialed by the consumer. Sec.  226.4(d)(1). Premiums for property and 
liability insurance may also be excluded from the finance charge if the 
insurance may be obtained from a person of the consumer's choice and 
certain disclosures are provided to the consumer. Sec.  226.4(d)(2). 
Certain security interest charges enumerated in the statute, such as 
taxes and fees prescribed by law and paid to public officials for 
determining the existence of, or for perfecting, releasing, or 
satisfying, a security interest, are excluded from the finance charge. 
Sec.  226.4(e). The regulation also excludes from the finance charge 
the real estate related fees enumerated in Section 106(e) of TILA. 
Sec.  226.4(c)(7).
    Over time, the Board, by regulation, has contributed to the ``some 
fees in, some fees out'' approach to the finance charge by determining 
that certain other charges not specifically excluded by the statute are 
not finance charges. These regulatory exclusions often sought to bring 
logical consistency to the treatment of fees that are similar to fees 
the statute excludes or conditionally excludes from the finance charge. 
Charges excluded from the finance charge by regulation include: Charges 
for debt cancellation or debt suspension coverage if the coverage is 
not required by the creditor, certain disclosures are provided to the 
consumer, and the consumer affirmatively requests the coverage in a 
writing signed or initialed by the consumer; and fees for verifying the 
information in a credit report. See Sec.  226.4(d)(3) and comment 
4(c)(7)-1. The additional fees the Board has excluded from the finance 
charge generally are closely analogous or related to fees that the 
statute excludes or conditionally excludes from the finance charge. For 
example, premiums for voluntary debt cancellation coverage are closely 
analogous to premiums for voluntary credit insurance, which TILA 
excludes from the finance charge. Likewise, charges for verifying a 
credit report are related to the credit report itself.
Concerns With the Current Approach to Finance Charges
    The ``some fees in, some fees out'' approach to the finance charge 
has been problematic both for consumers and for creditors since TILA's 
inception. Many of these problems were described in the 1998 Joint 
Report.\20\
---------------------------------------------------------------------------

    \20\ The 1998 Joint Report at 8-16.
---------------------------------------------------------------------------

    One fundamental problem is that there are two views of what is 
meant by the ``cost of credit.'' From the creditor's perspective, the 
cost of credit means the interest and fee income that the creditor 
receives or requires in exchange for providing credit to the consumer. 
From the consumer's perspective, however, the cost of credit means what 
the consumer pays for the credit, regardless of the persons to whom 
such amounts are paid.\21\ The statute uses both of these approaches in 
designating which fees are and are not included in the finance charge.
---------------------------------------------------------------------------

    \21\ See The 1998 Joint Report at 10.
---------------------------------------------------------------------------

    The influence of the creditor's perspective on the cost of credit 
is evident in how the ``some fees in, some

[[Page 43243]]

fees out'' approach to the finance charge has evolved and been applied 
to loans secured by real property. Many services provided in connection 
with real estate loans are performed by third parties, such as 
appraisers, closing agents, inspectors, public officials, attorneys, 
and title companies. Some of these services are required by the 
creditor, while others are not. In either case, the fees for these 
services generally are remitted in whole or in part to the third party. 
In some cases, the creditor may have little control over the fees 
imposed by these third parties. From the creditor's perspective, the 
creditor generally does not receive and retain these charges in 
connection with providing credit to the consumer. From the consumer's 
perspective, however, these third-party charges are part of what the 
consumer pays to obtain credit.\22\
---------------------------------------------------------------------------

    \22\ See The 1998 Joint Report at 11.
---------------------------------------------------------------------------

    Another problem with the ``some fees in, some fees out'' approach 
is that it undermines the effectiveness of the APR as an accurate 
measure of the cost of credit expressed as a yearly rate. The APR is 
designed to be a benchmark for consumer shopping. In consumer testing 
conducted for the Board, however, the APR appeared not to be fulfilling 
that objective in connection with mortgage loans.
    A single figure such as the APR is simple to use, particularly if 
consumers can use it to evaluate and compare competing products, rather 
than having to evaluate multiple figures.\23\ This is especially true 
for a figure such as the APR, which has a forty-year history in 
consumer disclosures, and thus is familiar to consumers. Nevertheless, 
if that single figure is not understood by consumers or does not fully 
represent what it purports to represent, the usefulness of that figure 
is undermined. Consumer testing shows that most consumers do not 
understand the APR, and many believe that the APR is the interest rate.
---------------------------------------------------------------------------

    \23\ See The 1998 Joint Report at 9.
---------------------------------------------------------------------------

    Under the current ``some fees in, some fees out'' approach to the 
finance charge, mortgage lenders also have an incentive to unbundle the 
cost of credit and shift some of the costs from the interest rate into 
ancillary fees that are excluded from the finance charge and not 
considered when calculating the APR, resulting in a lower APR than 
otherwise would have been disclosed. This further undermines the 
usefulness of the APR and has resulted in the proliferation of ``junk 
fees,'' such as fees for preparing loan-related documents. Such 
unbundling of the cost of credit, and the resulting pricing complexity, 
can have a detrimental impact on consumers. For example, research 
undertaken by HUD suggests that borrowers experience great difficulty 
when deciding whether the tradeoff between paying higher up-front costs 
or paying a higher interest rate is in their best interest, and that 
borrowers who do not pay up-front loan origination fees generally pay 
less than borrowers who do pay such fees.\24\ To the extent that the 
APR calculation includes most or all fees, the APR can reduce the 
incentive for lenders to include junk fees in credit agreements.\25\
---------------------------------------------------------------------------

    \24\ U.S. Department of Housing and Urban Development, A Study 
of Closing Costs for FHA Mortgages at x-xi and 2-4 (May 2008).
    \25\ See The 1998 Joint Report at 9.
---------------------------------------------------------------------------

    Based on extensive outreach conducted by Board staff, there appears 
to be a broad consensus that the ``some fees in, some fees out'' 
approach to the finance charge and corresponding APR calculation and 
disclosure is seriously flawed. Many industry representatives consider 
the finance charge definition overly complex. For creditors, this 
complexity creates significant regulatory burden and litigation risk. 
While some industry representatives generally favor a more inclusive 
measure, they have not advocated a specific test for determining the 
finance charge.
    Consumer advocates believe that the exclusions from the finance 
charge undermine the purpose of the finance charge and the APR, which 
is to measure the cost of credit. Some consumer advocates have 
recommended a ``but for'' test that would include in the finance charge 
all fees except those that the consumer would pay if he or she were not 
``obtaining, accessing, or repaying the extension of credit,'' such as 
fees paid in comparable cash transactions.\26\
---------------------------------------------------------------------------

    \26\ Renuart, Elizabeth and Diane E. Thomson, The Truth, the 
Whole Truth, and Nothing but the Truth: Fulfilling the Promise of 
Truth in Lending, 25 Yale J. on Reg. 181, 230 (2008).
---------------------------------------------------------------------------

    In the 1998 Joint Report, the Board and HUD recommended that the 
Congress adopt a more comprehensive definition of the finance 
charge.\27\ The Board and HUD recommended adopting a ``required-cost of 
credit'' test that would include in the finance charge ``the costs the 
consumer is required to pay to get the credit.'' \28\ Under this 
approach, the finance charge would include (and the APR would reflect) 
costs required to be paid by the consumer to obtain the credit, 
including many fees currently excluded from the finance charge, such as 
application fees, appraisal fees, document preparation fees, fees for 
title services, and fees paid to public officials to record security 
interests.\29\ Under the ``required-cost of credit'' test, fees for 
optional services, such as premiums for voluntary credit insurance, 
would be excluded from the finance charge.\30\
---------------------------------------------------------------------------

    \27\ The 1998 Joint Report at 15-16.
    \28\ The 1998 Joint Report at 13, 16.
    \29\ The 1998 Joint Report at 13.
    \30\ The 1998 Joint Report at 13.
---------------------------------------------------------------------------

The Board's Proposal
    A simpler, more inclusive test for determining the finance charge. 
The Board believes consumers would benefit from having a disclosure 
that includes fees or charges that better represent the full cost of 
credit undiluted by myriad exclusions, the basis for which consumers 
cannot be expected to understand. In addition, having a single 
benchmark figure--the APR--that is simple to use should allow consumers 
to evaluate competing mortgage products by reviewing one variable. The 
Board also believes that such a disclosure would reduce compliance 
burdens, regulatory uncertainty, and litigation risks for creditors who 
must provide accurate TILA disclosures.
    Thus, the Board would retain the APR as a benchmark for closed-end 
transactions secured by real property or a dwelling but is proposing 
certain revisions designed to make the APR more useful to consumers. 
First, as discussed below, the Board is proposing to provide consumers 
with more helpful explanation of the APR and what it represents. 
Second, the Board is proposing to require disclosure of the APR 
together with a new disclosure of the interest rate, as discussed 
below. Third, the Board is proposing to replace the ``some fees in, 
some fees out'' approach for determining the finance charge with a 
simpler, more inclusive approach for determining the finance charge 
that is based on TILA Section 106(a), 15 U.S.C. 1605(a). This approach 
is designed to ensure that the finance charge and the corresponding APR 
disclosed to consumers fulfills the basic purpose of TILA by providing 
a more complete and useful measure of the cost of credit.
    Pursuant to its authority under TILA Sections 105(a) and (f) of 
TILA, 15 U.S.C. 1604(a) and (f), the Board is proposing to amend Sec.  
226.4 to make most of the current exclusions from the finance charge 
inapplicable to closed-end credit transactions secured by real property 
or a dwelling. For such loans, the Board is proposing to replace the 
``some fees in, some fees out'' approach with a simpler, more inclusive 
test based on the definition of finance

[[Page 43244]]

charge in TILA Section 106(a), 15 U.S.C. 1605(a), for determining what 
fees or charges are included in the finance charge. The Board believes 
that the current patchwork of fee exclusions from the definition of the 
finance charge is not consistent with TILA's purpose of disclosing the 
cost of credit to the consumer. The Board believes that a more 
inclusive approach to determining the finance charge would be more 
consistent with TILA's purpose, enhance consumer understanding and use 
of the finance charge and APR disclosures, and reduce compliance costs. 
The Board also believes that the proposed revisions to the finance 
charge may enhance competition for third-party services since creditors 
would likely be more mindful of fees or charges that must be included 
in the finance charge and APR.
    The proposed test for determining the finance charge tracks the 
language of current Sec.  226.4 but excluding Sec.  226.4(a)(2). 
Specifically, under this test, a fee or charge is included in the 
finance charge for closed-end credit transactions secured by real 
property or a dwelling if it is (1) ``payable directly or indirectly by 
the consumer'' to whom credit is extended, and (2) ``imposed directly 
or indirectly by the creditor as an incident to or a condition of the 
extension of credit.'' The finance charge would continue to exclude 
fees or charges paid in comparable cash transactions. See Sec.  
226.4(a). The finance charge also includes charges by third parties if 
the creditor: (1) Requires use of a third party as a condition of or 
incident to the extension of credit, even if the consumer can choose 
the third party; or (2) retains a portion of the third-party charge, to 
the extent of the portion retained. See Sec.  226.4(a)(1). Other 
exclusions from the finance charge for closed-end credit transactions 
secured by real property or a dwelling would be limited to late fees 
and similar default or delinquency charges, seller's points, and 
premiums for property and liability insurance.
    As new services are added, and new fees are charged, in connection 
with closed-end credit transactions secured by real property or a 
dwelling, creditors would have to apply the basic test in making 
judgments about whether or not new fees must be included in the finance 
charge. The Board requests comment on whether further guidance is 
needed to assist creditors in making these determinations, and, if so, 
what specific guidance would be helpful.
    Loans covered. Section 226.4 is part of Subpart A, General, as 
opposed to Subpart C, Closed-End Credit. Nevertheless, the proposed 
amendments to Sec.  226.4 would apply only to closed-end credit 
transactions secured by real property or a dwelling, consistent with 
the general scope of this proposed rule. The Board seeks comment on 
whether the same amendments should be made applicable to other closed-
end credit and may consider such amendments under a future review of 
Regulation Z. Contemporaneous with this proposal, the Board is 
publishing separately proposed rules regarding home equity lines of 
credit (HELOCs). Accordingly, the Board is not proposing to apply the 
changes to the finance charge determination to HELOCs in this 
rulemaking. As discussed in the HELOC proposal, the Board believes that 
changing the definition of finance charge for HELOC accounts would not 
have a material effect on the HELOC disclosures and accordingly is 
unnecessary.
    Impact on coverage of other rules. One potential consequence of 
adopting a more inclusive test for determining the finance charge is 
that more loans may qualify as ``HOEPA loans,'' as described in TILA 
Section 103(aa), and therefore be subject to the additional disclosures 
and prohibitions applicable to such loans under TILA Section 129. 
Similarly, more loans may be subject to the Board's recently adopted 
protections for higher-priced mortgage loans under Sec.  226.35, which 
become effective on October 1, 2009. 73 FR 44522; Jul. 30, 2008. 
Finally, more loans may qualify as covered loans under certain State 
anti-predatory lending laws that use the APR as a coverage test. The 
Board has conducted some analysis to quantify these impacts.
    To estimate representative charges, the Board obtained information 
from a 2008 survey conducted by Bankrate.com on closing costs for each 
state, based on a $200,000 hypothetical mortgage loan.\31\ Using these 
estimates, and scaling those that are calculated as a percentage of 
loan amount as necessary, the Board estimated the effect on the APRs of 
first-lien loans in two databases: HMDA records, which include most 
closed-end home loans, and data obtained from Lender Processing 
Services, Inc. (LPS), which include mostly prime and near-prime home 
loans serviced by several large mortgage servicers.
---------------------------------------------------------------------------

    \31\ To supplement the Bankrate.com survey with estimated 
recording fees and taxes, which the survey did not include, the 
Board used the Martindale-Hubbell service's digest of State laws. As 
discussed below, the Board is not proposing to revise comment 4(a)-
5, which provides principles for determining the treatment of taxes 
based on the party on whom the law imposes the tax. For the sake of 
simplicity, the Board did not attempt to distinguish such laws on 
this basis and, instead, included all recording taxes in the finance 
charge under the proposal. The analysis thus may have included some 
recording taxes in the finance charge under the proposal that could 
have been excluded under comment 4(a)-5.
---------------------------------------------------------------------------

    On the basis of this analysis, the Board estimates that proposed 
Sec.  226.4 would increase the share of first-lien refinance and home 
improvement loans covered by HOEPA, under Sec.  226.32, by about 0.6 
percent. While this increase is small, the Board also notes that, 
because very few HOEPA loans are originated overall, the absolute 
number of loans covered would increase markedly--more than 350 percent. 
Because the HMDA data do not include APRs for loans below the rate 
spread reporting thresholds, see 12 CFR 203.4(a)(12), 2006 LPS data 
were used to estimate the impact on coverage of Sec.  226.35. Based on 
this analysis, the Board estimates that about 3 percent of the first-
lien loans in the loan amount range of the typical home purchase or 
refinance loan ($175,000 to $225,000) that were below the Sec.  226.35 
APR threshold would have been above the threshold if proposed Sec.  
226.4 had been in effect at the time.
    The Board also examined HMDA data for the impact of the proposed, 
more inclusive finance charge definition on APRs in certain states. 
Specifically, the Board considered the APR tests for coverage of first-
lien mortgages under the anti-predatory lending laws in the District of 
Columbia (DC), Illinois, and Maryland. These laws are the only three 
State anti-predatory lending laws with APR coverage thresholds that are 
lower than the federal HOEPA APR threshold, for first-lien loans, of 
800 basis points over the U.S. Treasury yield on securities with 
comparable maturities. DC and Illinois use a threshold of 600 basis 
points, and Maryland uses a threshold of 700 basis points, over the 
comparable Treasury yield.\32\ Freddie Mac and Fannie Mae have policies 
under which they will not purchase loans that exceed the Illinois 
thresholds,\33\ but they have no such policies with regard to DC or 
Maryland. The Board estimates that proposed Sec.  226.4 would convert 
the following percentages of first-lien loans that are under the 
applicable APR threshold into loans that exceed that threshold and thus 
would become covered by the applicable State anti-predatory lending 
law: DC, 2.5%; Illinois, 4.0%; Maryland, 0.0%.
---------------------------------------------------------------------------

    \32\ DC Code Ann. 26-1151.01(7)(A)(i); Ill. Comp. Stat. ch. 815, 
137/10; Md. Code Ann. Com. Law 12-1029(a)(2).
    \33\  http://www.freddiemac.com/learn/pdfs/uw/Pred_requirements.pdf; https://www.efanniemae.com/sf/guides/ssg/annltrs/pdf/2003/03-12.pdf.

---------------------------------------------------------------------------

[[Page 43245]]

    The Board notes that the impact of the proposed finance charge 
definition on APRs varies among loans based on two significant factors. 
First, because many of the affected charges are fixed dollar amounts, 
the impact is significantly greater for smaller loans. Second, the 
impact likely would vary geographically because some charges, notably 
title insurance premiums and recording fees and taxes, vary 
considerably by state. The Board believes the proposal, on balance, 
would be in consumers' interests but seeks comment on these 
consequences of the proposal and the impact it may have on loans that 
could become subject to these various laws.
    Legal authority. The Board is proposing to adopt the simpler, more 
inclusive test for determining the finance charge and corresponding APR 
pursuant to its general rulemaking, exception, and exemption 
authorities under TILA Section 105. Section 105(a) directs the Board to 
prescribe regulations to carry out the purposes of this title, which 
include facilitating consumers' ability to compare credit terms and 
helping consumers avoid the uninformed use of credit. 15 U.S.C. 
1601(a), 1604(a). Section 105(a) generally authorizes the Board to make 
adjustments and exceptions to TILA to effectuate the statute's 
purposes, to prevent circumvention or evasion of the statute, or to 
facilitate compliance with the statute. 15 U.S.C. 1601(a), 1604(a).
    The Board has considered the purposes for which it may exercise its 
authority under TILA Section 105(a) carefully and, based on that 
review, believes that the proposed adjustments and exceptions are 
appropriate. The proposal has the potential to effectuate the statute's 
purpose by better informing consumers of the total cost of credit and 
to prevent circumvention or evasion of the statute through the 
unbundling or shifting of the cost of credit from finance charges to 
fees or charges that are currently excluded from the finance charge. 
The Board believes that Congress did not anticipate how such unbundling 
would undermine the purposes of TILA, when it enacted the exceptions. 
For example, fees for preparation of loan-related documents are 
excluded from the finance charge by TILA Section 106(e), 15 U.S.C. 
1605(e); in practice, document preparation fees have become a common 
vehicle used by creditors to enhance their revenue without having any 
impact on the finance charge or APR. A simpler, more inclusive approach 
to determining the finance charge also would facilitate compliance with 
the statute.
    TILA Section 105(f) generally authorizes the Board to exempt any 
class of transactions from coverage under any part of TILA if the Board 
determines that coverage under that part does not provide a meaningful 
benefit to consumers in the form of useful information or protection. 
15 U.S.C. 1604(f)(1). The Board is proposing to exempt closed-end 
transactions secured by real property or a dwelling from the complex 
exclusions in TILA Section 106(b) through (e), 15 U.S.C. 1605(b) 
through (e). TILA Section 105(f) directs the Board to make the 
determination of whether coverage of such transactions under those 
exclusions provides a meaningful benefit to consumers in light of 
specific factors. 15 U.S.C. 1604(f)(2). These factors are (1) the 
amount of the loan and whether the disclosure provides a benefit to 
consumers who are parties to the transaction involving a loan of such 
amount; (2) the extent to which the requirement complicates, hinders, 
or makes more expensive the credit process; (3) the status of the 
borrower, including any related financial arrangements of the borrower, 
the financial sophistication of the borrower relative to the type of 
transaction, and the importance to the borrower of the credit, related 
supporting property, and coverage under TILA; (4) whether the loan is 
secured by the principal residence of the borrower; and (5) whether the 
exemption would undermine the goal of consumer protection.
    The Board has considered each of these factors carefully and, based 
on that review, believes that the proposed exemptions are appropriate. 
Mortgage loans generally are the largest credit obligation that most 
consumers assume. Most of these loans are secured by the consumer's 
principal residence. For many consumers, their mortgage loan is the 
most important credit obligation that they have. Consumer testing 
suggests that consumers find the finance charge and APR disclosures 
confusing and unhelpful when shopping for a mortgage. Along with other 
changes, replacing the patchwork ``some fees in, some fees out'' 
approach to determining the finance charge with a more inclusive 
approach that reflects the consumer's total cost of credit has the 
potential to further the goals of consumer protection and promote the 
informed use of credit for mortgage loans. Adoption of a more inclusive 
finance charge also would simplify compliance, reduce regulatory 
burden, and reduce litigation risk for creditors.
    The Board's exception and exemption authority under Sections 105(a) 
and (f) does not apply in the case of a mortgage referred to in Section 
103(aa), which are high-cost mortgages generally referred to as ``HOEPA 
loans.'' The Board does not believe that this limitation restricts its 
ability to apply the revised provisions regarding finance charges to 
all mortgage loans, including HOEPA loans. This limitation on the 
Board's general exception and exemption authority is a necessary 
corollary to the decision of the Congress, as reflected in TILA Section 
129(l)(1), to grant the Board more limited authority to exempt HOEPA 
loans from the prohibitions applicable only to HOEPA loans in Section 
129(c) through (i) of TILA. See 15 U.S.C. 1639(l)(1). Here, the Board 
is not proposing any exemptions from the HOEPA prohibitions. This 
limitation does raise a question as to whether the Board could use its 
exception and exemption authority under Sections 105(a) and (f) to 
except or exempt HOEPA loans, but not other types of mortgage loans, 
from other, generally applicable TILA provisions. That question, 
however, is not implicated by this proposal.
    Here, the Board is proposing to apply its general exception and 
exemption authority to enhance the finance charge disclosure for all 
loans secured by real property or a dwelling, including both HOEPA and 
non-HOEPA loans, in order to fulfill the statute's purpose of having 
the finance charge and APR disclosures reflect the total cost of 
credit. It would not be consistent with the statute or with 
Congressional intent to interpret the Board's authority under Sections 
105(a) and (f) in such a way that the proposed revisions could apply 
only to mortgage loans that are not subject to HOEPA. Reading the 
statute in a way that would deprive HOEPA borrowers of improved finance 
charge and APR disclosures is not a reasonable construction of the 
statute and contravenes the Congress's goal of ensuring ``that enhanced 
protections are provided to consumers who are most vulnerable to 
abuse.'' \34\
---------------------------------------------------------------------------

    \34\ H.R. Conf. Rept. 103-652 at 159 (Aug. 2, 1994).
---------------------------------------------------------------------------

    The Board solicits comment on all aspects of this proposal, 
including the cost, burden, and benefits to consumers and to industry 
regarding the proposed revisions to the determination of the finance 
charge. The Board also requests comment on any alternatives to the 
proposal that would further the purposes of TILA and provide consumers 
with more useful disclosures.
4(a) Definition
    Comment 4(a)-5 contains guidance for determining whether taxes 
should be treated as finance charges. Generally, a tax imposed on the 
creditor is a finance

[[Page 43246]]

charge if the creditor passes it through to the consumer. If applicable 
law imposes a tax solely on the consumer, on the creditor and consumer 
jointly, on the credit transaction itself without specifying a liable 
party, or on the creditor with direction or authorization to pass it 
through to the consumer, the tax is not a finance charge. Consequently, 
an examination of the law imposing each tax that is paid by the 
consumer is required to determine whether such taxes are finance 
charges. This examination of laws creates burden for creditors and may 
result in inconsistent treatment of similar taxes. The resulting 
disclosures likely are not as useful to consumers as they might be if 
all taxes were treated consistently. The Board seeks comment on whether 
the rules for determining the finance charge treatment of taxes imposed 
by State and local governments should be simplified and, if so, how. 
The Board also seeks comment on whether any such simplification should 
be for purposes of closed-end transactions secured by real property or 
a dwelling only or should have more general applicability.
    Proposed new comment 4(a)-6 would clarify that there is no 
comparable cash transaction in a transaction where there is no seller, 
such as a refinancing, and thus the comparable cash transaction 
exclusion from the finance charge does not apply to such transactions.
4(a)(2) Special Rule; Closing Agent Charges
    The Board is proposing to amend Sec.  226.4(a)(2), which set out 
special rules for closing agent charges, in light of the proposed new 
Sec.  226.4(g), discussed below. As a result, this provision would no 
longer apply to closed-end credit transactions secured by real property 
or a dwelling because the fees excluded by Sec.  226.4(a)(2) meet the 
general definition of the finance charge in TILA Section 106(a). The 
Board also proposes certain conforming amendments to the staff 
commentary under this provision.
    Under the general definition of ``finance charge'' in TILA Section 
106(a), a charge is a finance charge if it is (1) ``payable directly or 
indirectly by the person to whom the credit is extended,'' and (2) 
``imposed directly or indirectly by the creditor as an incident to the 
extension of credit.'' 15 U.S.C. 1605(a). Application of the basic 
statutory definition as the test for determining which charges are 
finance charges would result in many third-party charges being treated 
as finance charges because such third-party charges often are payable 
directly or indirectly by the consumer and imposed indirectly by the 
creditor. For instance, because real estate settlements are complex 
financial and legal transactions, creditors generally require a 
licensed closing agent (often an attorney) to conduct closings to 
ensure that the transaction is handled with professional skill and 
care. These closing agents typically impose fees on the consumer in the 
course of ensuring that the loan is consummated appropriately. In some 
cases, the creditor clearly requires the particular third-party service 
for which a fee is charged, such as where the creditor instructs the 
closing agent to send documents by overnight courier. In other cases, 
however, whether the creditor requires the particular service is not 
clear.
    A rule that requires case-by-case factual determinations as to 
whether a particular third-party fee must be included in the finance 
charge results in complexity and inconsistent treatment of such fees. 
Such inconsistent treatment in turn undermines the utility of the 
finance charge and APR as comparison shopping tools and introduces 
uncertainty and litigation risk for creditors. For these reasons, the 
Board believes that fees charged by closing agents, both their own and 
those of other third parties they hire to perform particular services, 
should be treated uniformly as finance charges. The Board seeks comment 
on whether any such third-party charges do not fall within the basic 
test for determining the finance charge and could be excluded from the 
finance charge without requiring factual determination in each case.
    Requiring third-party charges to be included in the finance charge 
creates some risk that a creditor may understate the finance charge if 
the creditor does not know that a particular charge was imposed by a 
third party. This risk is mitigated to some extent by TILA Section 
106(f), which provides that a disclosed finance charge is treated as 
accurate if it does not vary from the actual finance charge by more 
than $100 or is greater than the amount required to be disclosed. 15 
U.S.C. 1605(f). This tolerance has been incorporated into Regulation Z. 
See Sec.  226.18(d)(1). The Board requests comment on whether it should 
increase the finance charge tolerance, for example to $200, in light of 
its proposal to require more third-party charges to be included in the 
finance charge. The Board also requests comment on whether the existing 
or any increased tolerance should be linked to an inflation index, such 
as the Consumer Price Index.
    Excluding fees from the finance charge because they are voluntary 
or optional also is not consistent with the statutory purpose of 
disclosing the ``cost of credit,'' which includes charges imposed ``as 
an incident to the extension of credit.'' \35\ 15 U.S.C. 1605(a). One 
basis for the current exclusions for voluntary or optional charges is 
an implicit assumption that they are not ``imposed directly or 
indirectly by the creditor'' on the consumer. However, charges may be 
imposed by a creditor even if the services for which the fee is imposed 
are not specifically required by the creditor. Moreover, a test that 
depends upon whether a service is ``voluntary'' inherently requires a 
factual determination. In the current provisions addressing credit 
insurance, the Board has identified certain objective criteria for 
determining when the consumer's purchase of such insurance is deemed to 
be voluntary. However, as discussed below, this approach has many 
problems and has not proven satisfactory. The Board believes that 
drawing a bright-line to include in the finance charge both voluntary 
and required charges that are imposed by the creditor would eliminate 
the difficulties posed by this type of fact-based analysis and provide 
a more consistent measure of the cost of credit.
---------------------------------------------------------------------------

    \35\ The Board has consistently interpreted the definition of 
finance charge as not dependent on whether a charge is voluntary or 
required. As a practical matter, most voluntary fees are excluded 
because they coincidentally are payable in a comparable cash 
transaction, not specifically because they are voluntary. See, e.g., 
61 FR 49237, 49239; Sept. 19, 1996 (charges for voluntary debt 
cancellation agreements).
---------------------------------------------------------------------------

    Another basis for the current exclusions for voluntary or optional 
charges in connection with the credit transaction is an assumption that 
creditors cannot know the amounts of such charges at the time the 
disclosure must be provided to the consumer. The Board presumes that 
creditors know the amounts of their own voluntary charges, if any. The 
Board believes that creditors generally know or can readily determine 
voluntary third-party charges when providing TILA disclosures three 
business days before consummation, as proposed Sec.  226.19(a)(2)(ii) 
would require. As a practical matter, the primary voluntary third-party 
charge in connection with a mortgage transaction of which the Board is 
aware (and that is not otherwise excluded from the finance charge) is 
the premium for voluntary credit insurance, and creditors generally 
solicit consumers for such insurance. In fact, under existing Sec.  
226.4(d)(1)(ii), creditors historically

[[Page 43247]]

have had to disclose the premium for voluntary credit insurance to 
exclude it from the finance charge. The Board nevertheless solicits 
comment on whether there are voluntary third-party charges the amounts 
of which cannot be determined three business days before consummation.
    The Board recognizes that creditors may not know what voluntary or 
optional charges the consumer will incur when providing early TILA 
disclosures. When providing early TILA disclosures, creditors may rely 
on reasonable assumptions regarding voluntary or optional charges and 
label those amounts as estimates. The Board invites comment on whether 
further guidance is required regarding reasonable assumptions that may 
be made regarding voluntary or optional charges in early TILA 
disclosures.
4(b) Examples of Finance Charges
    The Board is proposing technical amendments to comment 4(b)-1 to 
reflect the fact that the exclusions from the finance charge under 
Sec.  226.4(c) through (e), other than Sec. Sec.  226.4(c)(2), 
226.4(c)(5) and 226.4(d)(2), would not apply to closed-end credit 
transactions secured by real property or a dwelling.
4(c) Charges Excluded From the Finance Charge
    The Board proposes to amend Sec.  226.4(c), which lists 
miscellaneous exclusions from the finance charge, to provide that Sec.  
226.4(c) is limited by proposed new Sec.  226.4(g). Thus, except for 
late fees and similar default or delinquency charges and seller's 
points, the exclusions in Sec.  226.4(c) would not apply to closed-end 
credit transactions secured by real property or a dwelling. The Board 
also proposes certain conforming amendments to the staff commentary 
under those provisions.
4(c)(2)
    The exclusion of fees for actual unanticipated late payment, 
exceeding a credit limit, or for delinquency, default, or a similar 
occurrence in Sec.  226.4(c)(2) would be retained for closed-end credit 
transactions secured by real property or a dwelling. The Board believes 
these charges should be excluded because they necessarily occur only 
after the finance charge is disclosed to consumers. At the time the 
TILA disclosures must be provided to consumers, a creditor cannot know 
whether it will impose such charges or their amounts.
4(c)(5)
    The exclusion of seller's points from the finance charge in Sec.  
226.4(c)(5) would be retained for closed-end credit transactions 
secured by real property or a dwelling. Seller's points are not payable 
by the consumer. Comment 226.4(c)(5)-1 notes that seller's points may 
be passed on to the buyer in the form of a higher sales price for the 
property or dwelling. Even then, seller's points are excluded from the 
finance charge. A different rule would require a fact-specific 
determination in every transaction involving seller's points regarding 
whether and to what extent the seller shifted those costs to the 
borrower. The Board does not believe that such a rule is feasible. The 
Board seeks comment on the retention of the seller's points exclusion.
4(c)(7) Real-Estate Related Fees
    The Board is proposing to amend Sec.  226.4(c)(7), which currently 
excludes from the finance charge a number of fees charged in 
transactions secured by real property or in residential mortgage 
transactions if those fees are bona fide and reasonable. Under the 
proposal, the following fees currently excluded would be included in 
the finance charge for closed-end credit transactions secured by real 
property or a dwelling: fees for title examination, abstract of title, 
title insurance, property survey, and similar purposes; fees for 
preparing loan-related documents, such as deeds, mortgages, and 
reconveyance or settlement documents; notary and credit-report fees; 
property appraisal fees or fees for inspections to assess the value or 
condition of the property if the service is performed prior to closing, 
including fees related to pest-infestation or flood-hazard 
determinations; and amounts required to be paid into escrow or trustee 
accounts if the amounts would not otherwise be included in the finance 
charge. The commentary provisions under Sec.  226.4(c)(7) would also be 
amended accordingly.
    As amended, Sec.  226.4(c)(7) and the commentary provisions under 
Sec.  226.4(c)(7) would apply only to open-end credit plans secured by 
real property and open-end residential mortgage transactions. Thus, for 
HELOCs, the fees specified in Sec.  226.4(c)(7) would continue to be 
excluded from the finance charge. The Board requests comment on whether 
it should retain Sec.  226.4(c)(7), as proposed to be amended, or 
delete Sec.  226.4(c)(7) altogether, in light of the proposed changes 
to the Regulation Z HELOC rules, published today in a separate Federal 
Register notice. See the discussion under Sec.  226.4 in that notice.
4(d) Insurance and Debt Cancellation and Debt Suspension Coverage
    The Board is proposing technical amendments to comment 4(d)-12 to 
reflect the fact that the exclusions from the finance charge under 
Sec.  226.4(e) would not apply to closed-end transactions secured by 
real property or a dwelling.
4(d)(1) and (3) Voluntary Credit Insurance Premiums; Voluntary Debt 
Cancellation and Debt Suspension Fees
    The Board is proposing to amend Sec. Sec.  226.4(d)(1), exclusion 
for voluntary credit insurance premiums, and 226.4(d)(3), exclusion for 
voluntary debt cancellation and debt suspension fees, to limit their 
application consistently with proposed Sec.  226.4(g). Thus, these 
exclusions would not apply to closed-end transactions secured by real 
property or a dwelling.
    Age or employment eligibility criteria. Under TILA Section 
106(a)(5), 15 U.S.C. 1605(a)(5), a premium or other charge for any 
guarantee or insurance protecting the creditor against the obligor's 
default or other credit loss is a finance charge. Under Sec. Sec.  
226.4(b)(7) and 226.4(b)(10), a premium or charge for credit life, 
accident, health, or loss-of-income insurance, or debt cancellation or 
debt suspension coverage is a finance charge if the insurance or 
coverage is written in connection with a credit transaction. TILA 
Section 106(b), 15 U.S.C. 1605(b), allows the creditor to exclude from 
the finance charge any charge or premium for credit life, accident, or 
health insurance written in connection with any consumer credit 
transaction if (1) the coverage is not a factor in the approval by the 
creditor of the extension of credit, and this fact is clearly disclosed 
in writing to the consumer; and (2) in order to obtain the insurance, 
the consumer specifically requests the insurance after getting the 
disclosures. Under Sec. Sec.  226.4(d)(1) and 226.4(d)(3), the creditor 
may exclude from the finance charge any premium for credit life, 
accident, health or loss-of-income insurance; any charge or premium 
paid for debt cancellation coverage for amounts exceeding the value of 
the collateral securing the obligation; or any charge or premium for 
debt cancellation or debt suspension coverage in the event of loss of 
life, health, or income or in case of accident, whether or not the 
coverage is insurance, if (1) the insurance or coverage is not required 
by the creditor and the creditor discloses this fact in writing; (2) 
the creditor discloses the premium or charge for the initial term of 
the insurance or coverage,

[[Page 43248]]

(3) the creditor discloses the term of insurance or coverage, if the 
term is less than the term of the credit transaction, and (4) the 
consumer signs or initials an affirmative written request for the 
insurance or coverage after receiving the required disclosures. In 
addition, under Sec.  226.4(d)(3)(iii), the creditor must disclose for 
debt suspension coverage the fact that the obligation to pay loan 
principal and interest is only suspended, and that interest will 
continue to accrue during the period of suspension.\36\ Under proposed 
Sec.  226.4(g), these provisions would not apply to closed-end credit 
transactions secured by real property or a dwelling.
---------------------------------------------------------------------------

    \36\ The provisions regarding debt suspension coverage were in 
the December 2008 Open-End Final Rule. See 74 FR 5244, 5400; Jan. 
29, 2009. These provisions will take effect on July 1, 2010.
---------------------------------------------------------------------------

    Some creditors offer credit insurance or debt cancellation or debt 
suspension products with eligibility restrictions, but may not evaluate 
whether applicants for the products actually meet the eligibility 
criteria at the time the applicants request the product.\37\ For 
instance, a consumer who is 70 at the time of enrollment could never 
receive the benefits of a product with a 65-year-old age limit.\38\ 
Similarly, a consumer who is self-employed at the time of enrollment 
would not receive benefits if the product requires the consumer to be 
employed as a W-2 wage employee.\39\
---------------------------------------------------------------------------

    \37\ See, e.g., Parker et al. v. Protective Life Ins. Co. of 
Ohio et al., Nos. 2004-T-0127 and 2004-T-0128, 2006 Ohio App. LEXIS 
3983, at *28 (Ohio Ct. App. Aug. 4, 2006) (reversing summary 
judgment for defendants automobile dealership and insurer because 
the automobile dealership employee did not evaluate whether the 
plaintiffs were eligible for credit disability insurance and the 
plaintiffs were later denied benefits based on eligibility 
restrictions); Stewart v. Gulf Guaranty Life Ins. Co., No. 2000-CA-
01511-SCT, 2002 Miss. LEXIS 254, at *4 (Miss. Aug. 15, 2002) 
(affirming the jury award where the insurer did not require the bank 
employee to have the consumer fill out a credit life and disability 
insurance application regarding pre-existing conditions and the 
insurer later denied coverage based on a pre-existing condition).
    \38\ See, e.g., Fed. Trade Comm'n v. Stewart Finance Holdings, 
Inc. et al., Civ. Action No. 103CV-2648, Final Judgment and Order at 
13 (N.D. Ga. Nov. 9, 2005) (alleging that the finance company sold 
accidental death and dismemberment insurance to borrowers who were 
not eligible for the product due to age restrictions).
    \39\ See, e.g., In the Matter of Providian Nat'l Bank, OCC 
Docket No. 2000-53, Consent Order (June 28, 2000) (alleging that the 
bank marketed an involuntary unemployment credit protection program 
but failed to adequately disclose that such protection was 
unavailable to consumers who were self-employed).
---------------------------------------------------------------------------

    Although age and employment eligibility criteria may be set forth 
in the product marketing materials and/or enrollment forms, the Board 
believes few consumers notice this information when they obtain credit 
and choose to purchase the voluntary credit insurance or debt 
cancellation or debt suspension coverage. Because the product is sold 
in connection with a credit transaction that is underwritten by the 
creditor, the consumer may reasonably believe that the creditor has 
determined that the consumer is eligible for the product. This may be 
especially true for age restrictions because that information is 
typically requested by the creditor on the credit application form. As 
a result, many consumers may not discover until they file a claim that 
they were paying for a product for which they were not eligible when 
they initially purchased it. Consumers that do not submit claims may 
never discover that they are paying for products that hold no value for 
them.
    To address this problem, the Board proposes to add Sec. Sec.  
226.4(d)(1)(iv) and 226.4(d)(3)(v) to permit creditors to exclude a 
premium or charge from the finance charge only if the creditor 
determines at the time of enrollment that the consumer meets any 
applicable age or employment eligibility criteria for the credit 
insurance or the debt suspension or debt cancellation coverage. These 
provisions would apply to open-end as well as closed-end (non-real 
property) credit transactions. Proposed comment 4(d)-14 would state 
that a premium or charge for credit life, accident, health, or loss-of-
income insurance, or debt cancellation or debt suspension coverage is 
voluntary and can be excluded from the finance charge only if the 
consumer meets the product's age or employment eligibility criteria at 
the time of enrollment. The proposed comment would further clarify that 
to exclude such a premium or charge from the finance charge, the 
creditor would have to determine at the time of enrollment that the 
consumer is eligible for the product under the product's age or 
employment eligibility restrictions.
    Proposed comment 4(d)-14 would provide that the creditor could use 
reasonably reliable evidence of the consumer's age or employment status 
to satisfy the condition. Reasonably reliable evidence of a consumer's 
age would include using the date of birth on the consumer's credit 
application, on the driver's license or other government-issued 
identification, or on the credit report. Reasonably reliable evidence 
of a consumer's employment status would include the consumer's 
information on a credit application, Internal Revenue Service Form W-2, 
tax returns, payroll receipts, or other evidence such as a letter or e-
mail from the consumer or the consumer's employer. A determination of 
age or employment eligibility at the time of enrollment should not be 
unduly burdensome because in most cases the creditor would already have 
information about the consumer's age and employment status as part of 
the credit underwriting process. The Board seeks comment on whether 
other examples of reasonably reliable evidence of the consumer's age or 
employment status should be included.
    Proposed comment 4(d)-14 would clarify that, if the consumer does 
not meet the product's age or employment eligibility criteria, then the 
premium or charge is not voluntary and must be included in the finance 
charge. If the creditor offers a bundled product (such as credit life 
insurance combined with credit involuntary unemployment insurance) and 
the consumer does not meet the age and/or employment eligibility 
criteria for all of the bundled products, the proposed commentary would 
clarify that the creditor must either: (1) treat the entire premium or 
charge for the bundled product as a finance charge, or (2) offer the 
consumer the option of selecting only the products for which the 
consumer is eligible and exclude the premium or charge from the finance 
charge if the consumer chooses an optional product for which the 
consumer meets the age and/or employment eligibility criteria at the 
time of enrollment.
    The Board proposes this rule and commentary to address concerns 
about the voluntary nature of this product. TILA Section 106(b), 15 
U.S.C. 1605(b), states that ``[c]harges or premiums for credit life, 
accident, or health insurance written in connection with any consumer 
credit transaction shall be included in the finance charge unless (1) 
the coverage of the debtor by the insurance is not a factor in the 
approval by the creditor of the extension of credit, and this fact is 
clearly disclosed in writing to the person applying for or obtaining 
the extension of credit; and (2) in order to obtain the insurance in 
connection with the extension of credit, the person to whom the credit 
is extended must give specific affirmative written indication of his 
desire to do so after written disclosure to him of the cost thereof.'' 
Historically, Sec.  226.4(d) has implemented this provision as a 
``voluntariness'' standard. For example, in 1981, comment 4(d)-5 was 
adopted as part of the TILA simplification process. The comment stated 
that the credit insurance ``must be voluntary in order for the premium 
to be excluded from the finance charge.'' 46 FR 50288, 50301; Oct. 9, 
1981 (emphasis added). In 1996, the Board amended Regulation Z to apply 
the rules for credit insurance to debt cancellation coverage. In 
adopting this provision, the Board

[[Page 43249]]

stated: ``The new rule allows creditors to exclude fees for voluntary 
debt cancellation coverage from the finance charge when specified 
disclosures are made.'' 61 FR 49237, 49240; Sept. 19, 1996 (emphasis 
added). In the December 2008 Open-End Final Rule, the Board applied the 
rules for credit insurance and debt cancellation coverage to debt 
suspension coverage. In adopting this provision, the Board referred to 
the May 2007 Open-End Proposed Rule, which stated that the Board 
``proposed to revise Sec.  226.4(d)(3) to expressly permit creditors to 
exclude charges for voluntary debt suspension coverage from the finance 
charge when, after receiving certain disclosures, the consumer 
affirmatively requests such as product.'' 74 FR 5244, 5266; Jan. 29, 
2009 (emphasis in original). Finally, the model forms currently contain 
the following statement emphasizing the voluntary nature of the 
product: ``Credit life insurance and credit disability insurance are 
not required to obtain credit, and will not be provided unless you sign 
and agree to pay the additional cost.'' See Appendix H-1 (Credit Sale 
Model Form) and Appendix H-2 (Loan Model Form). The Board believes that 
if the consumer was ineligible for the benefits of credit insurance or 
debt cancellation or debt suspension coverage at the time of 
enrollment, then the purchase cannot be voluntary because a reasonable 
consumer would not knowingly purchase a policy for which he or she can 
derive no benefit. For these reasons, the Board believes that the 
requirements of proposed Sec. Sec.  226.4(d)(1)(iv) and 226.4(d)(3)(v) 
would help ensure that the purchase of credit insurance or debt 
cancellation or debt suspension coverage would, in fact, be voluntary.
    The Board notes that although the proposed rule would require 
creditors to determine the consumer's age and/or employment eligibility 
for the product at the time of enrollment, the proposed rule would not 
affect the creditor's ability to deny coverage if the consumer 
misrepresented his or her age or employment status at the time of 
enrollment. Finally, the proposed rule does not require a creditor to 
determine if a consumer ceases to meet the age or employment 
eligibility criteria after enrollment. For example, the creditor has 
complied with the proposal if the consumer becomes ineligible for the 
policy or coverage after enrollment. State or other law may address 
these issues. However, the Board solicits comment on whether creditors 
should be required to determine whether the consumer meets the 
product's age or employment eligibility criteria after the product is 
sold (e.g., before renewing an annual premium), or whether creditors 
should be required to provide notice when the consumer exceeds the age 
limit of the product after enrollment.
    Revised disclosures. As discussed above, TILA Section 106(b), 15 
U.S.C. 1605(b), and Sec. Sec.  226.4(d)(1) and 226.4(d)(3) allow a 
creditor to exclude from the finance charge a credit insurance premium 
or debt cancellation or debt suspension fee if the creditor provides 
disclosures that inform the consumer of the voluntary nature and cost 
of the product. Currently, Regulation Z does not specifically mandate 
the format of these disclosures, but provides sample language in the 
model forms. For example, Appendix H-2 (Loan Model Form) contains the 
following language: ``Credit life insurance and credit disability 
insurance are not required to obtain credit, and will not be provided 
unless you sign and agree to pay the additional cost.'' The model form 
also shows the type of product (e.g., credit life or credit 
disability); the cost of the premium; and a signature line. The 
signature area is accompanied by the following language: ``I want 
credit life insurance.''
    Concerns have been raised about whether the current disclosures 
sufficiently inform consumers of the voluntary nature and costs of the 
product. To address these concerns, a disclosure was tested that 
included a charge for credit life insurance and listed the product 
under the title ``Optional Features.'' Only about half of the 
participants understood that accepting credit insurance was voluntary 
and that they could decline the product. Subsequently, a disclosure was 
tested that stated, ``STOP. You do not have to buy this insurance to 
get this loan.'' After reading this disclosure, all participants 
understood the voluntary nature of the product.
    In addition, concerns have been raised about the product's cost. 
The product may be more costly than, for example, traditional life 
insurance, but may not provide additional benefits. To address this 
concern, the Board tested the following language: ``If you have 
insurance already, this policy may not provide you with any additional 
benefits. Other types of insurance can give you similar benefits and 
are often less expensive.'' Participant comprehension of the costs and 
benefits of the product was significantly increased by these plain-
language disclosures.
    Concerns have also been raised about eligibility restrictions. 
Consumers might not be aware that they may incur a cost for a product 
that provides no benefit to them if the eligibility criteria are not 
met at the time of enrollment. Accordingly, the Board tested the 
following language: ``Even if you pay for this insurance, you may not 
qualify to receive any benefits in the future.'' Participants were 
greatly surprised to learn that they might purchase the insurance only 
to later discover that they were not eligible for benefits. A few 
participants indicated that they did not understand how they could pay 
for the coverage and then receive no benefits. To address this issue 
and to conform to the requirements of proposed Sec. Sec.  
226.4(d)(1)(iv) and 226.4(d)(3)(v), the following statement was added 
to the disclosure: ``Based on our review of your age and/or employment 
status at this time, you would be eligible to receive benefits.'' 
However, if there are other eligibility restrictions, such as pre-
existing health conditions, the creditor would be required to disclose 
the following statements: ``Based on our review of your age and/or 
employment status at this time, you may be eligible to receive 
benefits. However, you may not qualify to receive any benefits because 
of other eligibility restrictions.''
    Finally, a sentence was added to the disclosure to refer consumers 
to the Board's Web site to learn more about the product, and the cost 
disclosure was streamlined to display more clearly the exact cost of 
the product. Most consumer testing participants indicated they would 
visit the Board's Web site to learn more about a credit insurance or 
debt cancellation or debt suspension product.
    Based on this consumer testing, the Board proposes to add model 
clauses and samples that provide clearer information to consumers about 
the voluntary nature and costs of credit insurance or debt cancellation 
or debt suspension coverage. These model clauses and samples would 
apply in open-end or closed-end (not secured by real property) 
transactions, if the product is voluntary and the consumer qualifies 
for benefits based on age or employment. For closed-end transactions 
secured by real property or a dwelling, the model clause or sample 
would be required whether or not the product is voluntary. Model 
Clauses and Samples are proposed at Appendix G-16(C) and G-16(D) and H-
17(C) and H-17(D). These Model Clauses and Samples would be in addition 
to the Debt Suspension Model Clauses and Samples found at Appendix G-
16(A) and G-16(B) and H-17(A) and H-17(B).
    Timing of disclosures. Currently, comment 4(d)-2 states that ``[i]f 
disclosures are given early, for example

[[Page 43250]]

under Sec.  226.17(f) or Sec.  226.19(a), the creditor need not 
redisclose if the actual premium is different at the time of 
consummation. If insurance disclosures are not given at the time of 
early disclosure and insurance is in fact written in connection with 
the transaction, the disclosures under Sec.  226.4(d) must be made in 
order to exclude the premiums from the finance charge.'' The Board 
proposes to delete the reference to Sec.  226.19(a) to conform to the 
new timing and redisclosure requirements under proposed Sec.  
226.19(a).
4(d)(2) Property Insurance Premiums
    The proposal would retain the exclusion from the finance charge of 
premiums for insurance against loss or damage to property or against 
liability arising out of the ownership or use of property under TILA 
Section 106(c) and Sec.  226.4(d)(2). Consumers typically purchase 
property and liability insurance to protect against a variety of risks, 
including loss of or damage to the property, such as damage caused by 
fire, loss of or damage to personal property kept on the property, such 
as furniture, and owner liability for injuries incurred by visitors to 
the property. Although creditors generally require such insurance as a 
condition of extending closed-end credit secured by real property or a 
dwelling in order to protect the value of the collateral that is 
securing the loan, consumers who do not have mortgages regularly 
purchase this type of insurance to protect themselves from the risks 
described above. This type of insurance is best viewed as a hybrid 
product that protects not only the value of the creditor's collateral, 
but also protects the consumer from loss or impairment of the 
consumer's equity in the property, loss or impairment of the consumer's 
personal property, and personal liability if anyone is injured on the 
property. Consequently, it is impossible to segregate that portion of 
the insurance (and that portion of the premium) which protects the 
creditor from that portion which protects only the consumer.
    In addition, the Board has not identified significant abuses in 
connection with the sale or marketing of insurance against loss or 
damage to property or against liability arising out of the ownership or 
use of property. The market for these products appears to be 
competitive. Consumers can purchase this type of insurance from many 
insurance companies, including companies not associated with mortgage 
lenders. In addition, policies generally are tailored to the particular 
risks faced by the consumer. Thus, consumers have choices with regard 
to how much insurance to purchase to cover various risks and, as a 
result, have some control over the premiums they pay.
    The Board requests comment on the appropriateness of retaining the 
current exclusion from the finance charge of premiums for insurance 
against loss or damage to property or against liability arising out of 
the ownership or use of property. The Board notes that, under current 
Sec.  226.4(d)(2), the category of property and liability insurance has 
been interpreted to include coverage against flood risks; the Board 
seeks comment on whether the reasons for retaining the exclusion 
discussed above are applicable to flood insurance specifically and, if 
not, whether it should be subject to separate treatment under 
Regulation Z. In addition, the Board requests comment on whether 
including such premiums in the finance charge could have adverse or 
unintended consequences for consumers and for creditors.
    TILA Section 106(c) states that charges or premiums for property 
insurance must be included in the finance charge unless ``a clear and 
specific statement in writing is furnished by the creditor to the 
person to whom the credit is extended, setting forth the cost of the 
insurance if obtained from or through the creditor, and stating that 
the person to whom the credit is extended may choose the person through 
which the insurance is to be obtained.'' 15 U.S.C. 1605(c) (emphasis 
added). Section 226.4(d)(2) permits property insurance premiums to be 
excluded from the finance charge under the following conditions, among 
others: ``If the coverage is obtained from or through the creditor, the 
premium for the initial term of insurance coverage shall be disclosed. 
If the term of insurance is less than the term of the transaction, the 
term of insurance shall also be disclosed.'' (Emphasis added). Comment 
4(d)-8 states, in relevant part, that ``[t]he premium or charge must be 
disclosed only if the consumer elects to purchase the insurance from 
the creditor; in such a case, the creditor must also disclose the term 
of the property insurance coverage if it is less than the term of the 
obligation.'' (Emphasis added.) Currently, the comment does not use the 
statutory language ``from or through the creditor'' and does not define 
the phrase. To conform to the statutory and regulatory language, the 
Board proposes to amend comment 4(d)-8 to clarify that the premium or 
charge and term (if less than the term of the obligation) must be 
disclosed if the consumer elects to purchase the insurance ``from or 
through the creditor.'' In addition, the proposed comment would clarify 
that insurance is available ``from or through a creditor'' if it is 
available from the creditor's ``affiliate,'' as that term is defined 
under the Bank Holding Company Act, 12 U.S.C. 1841(k). The Bank Holding 
Company Act defines an ``affiliate'' as ``any company that controls, is 
controlled by, or is under common control with another company.'' Thus, 
if the consumer elects to purchase property insurance from a company 
that controls, is controlled by, or is under common control with the 
creditor, then the creditor would be required to disclose the cost of 
the insurance, and the term, if it is less than the term of the 
obligation. The Board believes that this proposed rule would clarify 
for creditors the meaning of ``through the creditor'' and provide 
consumers with a clearer disclosure of the cost of property insurance.
4(d)(4) Telephone Purchases
    Under Sec. Sec.  226.4(d)(1) and 226.4(d)(3), creditors may exclude 
from the finance charge premiums for credit insurance or fees for debt 
cancellation or debt suspension coverage, if the creditor provides 
certain disclosures in writing and the consumer signs or initials an 
affirmative written request for the insurance or coverage. Over the 
years, the Board has received industry requests to permit creditors to 
provide the disclosures and obtain the affirmative consumer request 
orally in order to facilitate telephone purchases of these products. In 
addition, the OCC has issued telephone sales guidelines for national 
banks that sell debt cancellation and debt suspension coverage. 12 CFR 
37.6(c)(3), 37.7(b).
    In the December 2008 Open-End Final Rule, the Board created an 
exception to the requirement to provide prior written disclosures and 
obtain written signatures or initials for telephone purchases of credit 
insurance and debt cancellation or debt suspension coverage in 
connection with open-end (not home-secured) plans. 74 FR 5244, 5267; 
Jan. 29, 2009. This rule will take effect on July 1, 2010. Under new 
Sec.  226.4(d)(4), for telephone purchases a creditor may make the 
disclosures orally and the consumer may affirmatively request the 
insurance or coverage orally, provided that the creditor (1) maintains 
evidence that the consumer, after being provided the disclosures 
orally, affirmatively elected to purchase the insurance or coverage, 
and (2) mails the required disclosures within three business days after 
the telephone purchase. New comment 226.4(d)(4)-1 provides that a 
creditor does not satisfy

[[Page 43251]]

the requirement to obtain a consumer's affirmative request if the 
``request'' was a response to a leading question or negative consent. 
The comment also provides an example of an acceptable enrollment 
question (``Do you want to enroll in this optional debt cancellation 
plan?'').
    The Board promulgated this rule pursuant to its exception and 
exemption authorities under TILA Section 105. Section 105(a) authorizes 
the Board to make exceptions to TILA to effectuate the statute's 
purposes, which include facilitating consumers' ability to compare 
credit terms and helping consumers avoid the uninformed use of credit. 
15 U.S.C. 1601(a), 1604(a). In addition, the Board considered the 
exemption factors set forth in TILA Section 105(f)(2), 15 U.S.C. 
1604(f)(2), and determined that an exemption for telephone purchases 
for open-end (not home-secured) plans was appropriate because the rule 
contained adequate safeguards to ensure that oral purchases are 
voluntary. 74 FR 5268. The Board emphasized that consumers in open-end 
(not home-secured) plans receive monthly statements that clearly 
disclose fees, including credit insurance and debt cancellation or debt 
suspension coverage charges. Id. Consumers who are billed for insurance 
or coverage they did not request can dispute the charge as a billing 
error. Id. The Board stated that as part of the closed-end review, it 
would consider whether to expand the telephone purchase rule to this 
type of credit. 74 FR 5267.
    The Board believes that a telephone purchase rule for closed-end 
credit is not appropriate. Monthly statements are not required for 
closed-end credit, and it would be difficult for consumers who do not 
receive monthly statements to detect charges for unwanted coverage. 
Moreover, there is no billing error resolution process for closed-end 
loans.
    Finally, the Board noted in the December 2008 Open-End Final Rule 
that an exception or exemption for the telephone purchase of credit 
insurance or debt cancellation or debt suspension coverage in 
connection with closed-end loans may be ``less necessary.'' 74 FR 5267. 
For open-end (not home-secured) credit, new comments 4(b)(7) and (8)-2 
and 4(b)(10)-2 in the December 2008 Open-End Final Rule clarify that 
credit insurance and debt cancellation or debt suspension coverage is 
``written in connection with a credit transaction'' if the consumer 
purchases it after the opening of an open-end (not home-secured) plan 
because the consumer retains the ability to obtain advances of funds. 
74 FR 5265. Therefore, in such a transaction, the creditor must comply 
with the disclosure and consumer request requirements even if the 
credit insurance and debt cancellation or debt suspension coverage is 
sold after the opening of the plan. A creditor in an open-end (not 
home-secured) transaction may be more likely to market the product by 
telephone after the opening of the plan, and new Sec.  226.4(d)(4) 
facilitates the telephone purchase. By contrast, a creditor in a 
closed-end transaction is more likely to have the opportunity to meet 
the consumer face-to-face at or before consummation to market the 
product, provide the disclosure, and obtain the consumer request. For 
these reasons, this proposal does not contain a telephone purchase rule 
for credit insurance or debt cancellation or debt suspension coverage 
sold in connection with a closed-end credit transaction. The Board 
seeks comment on this issue. For a discussion of the application of the 
telephone purchase rule to HELOCs, see the Board's proposal for such 
transactions published simultaneously with this proposal.
4(e) Certain Security Interest Charges
    The Board proposes to amend Sec.  226.4(e), which provides 
exclusions from the finance charge for certain government recording and 
related charges and insurance premiums incurred in lieu of such 
charges, as limited by proposed Sec.  226.4(g). Thus, the exclusions 
listed in Sec.  226.4(e) would not apply to closed-end credit 
transactions secured by real property or a dwelling. The Board also 
proposes certain conforming amendments to the staff commentary under 
this provision.
4(g) Special Rule; Closed-End Mortgage Transactions
    The Board is proposing to add a new Sec.  226.4(g) as a special 
rule for closed-end credit transactions secured by real property or a 
dwelling. Proposed Sec.  226.4(g) would provide that the exclusions 
from the finance charge enumerated in Sec. Sec.  226.4(a)(2) (closing 
agent charges), (c) (miscellaneous charges), (d) (premiums for certain 
insurance and debt cancellation coverage), and (e) (certain security-
interest charges) do not apply to closed-end credit transactions 
secured by real property or a dwelling, except that the exclusions in 
Sec.  226.4(c)(2) for late, over-limit, delinquency, default, and 
similar fees, Sec.  226.4(c)(5) for seller's points, and Sec.  
226.4(d)(2) for property and liability insurance would continue to 
apply to such transactions. As noted above, a cross-reference to the 
special rule in Sec.  226.4(g) would be added to each of the enumerated 
sections. With these changes, the following fees that currently are 
excluded from the finance charge would be included in the finance 
charge for closed-end mortgage transactions (unless otherwise 
excluded): Closing agent charges, application fees charged to all 
applicants for credit (whether or not credit is extended), voluntary 
credit insurance premiums, voluntary debt-cancellation charges or 
premiums, taxes or fees required by law and paid to public officials 
relating to security interests, premiums for insurance obtained in lieu 
of perfecting a security interest, taxes imposed as a condition of 
recording the instruments securing the evidence of indebtedness, and 
various real-estate related fees.
    Proposed commentary to Sec.  226.4(g) is included to clarify the 
rule for mortgage transactions. Proposed comment 4(g)-1 clarifies that 
the commentary for the exclusions identified above no longer applies to 
closed-end credit transactions secured by real property or a dwelling. 
Proposed comment 4(g)-2 clarifies that third-party charges that meet 
the definition under Sec.  226.4(a) and are not otherwise excluded 
generally are finance charges, whether or not the creditor requires the 
services for which they are imposed. Proposed comment 4(g)-3 clarifies 
that charges payable in a comparable cash transaction, such as property 
taxes and fees or taxes imposed to record the deed evidencing transfer 
of title to the property from the seller to the buyer, are not finance 
charges because they would have to be paid even if no credit were 
extended to finance the purchase.
Request for Comment
    The Board solicits comment on the benefits and costs of the 
proposed changes for determining the finance charge for closed-end 
credit transactions secured by real property or a dwelling. The Board 
requests comment specifically on whether this approach adequately or 
appropriately addresses the concerns raised by the ``some fees in, some 
fees out'' approach in light of the statute's purposes, the need for 
consumer protection and meaningful disclosures, and industry concerns 
regarding complexity and burden. The Board also seeks comment on the 
benefits and costs of the rules for insurance and related products 
under the proposed amendments to Sec.  226.4(d).

Section 226.17 General Disclosure Requirements

    The Board is proposing new rules governing format and content of 
disclosures for transactions secured by real property or a dwelling 
under new

[[Page 43252]]

Sec. Sec.  226.37 and 226.38. Accordingly, the Board proposes 
conforming and technical amendments to current Sec. Sec.  226.17 and 
226.18, as discussed more fully below. In addition, in reviewing the 
rules for closed-end credit, regulatory text and associated commentary 
have been redesignated, and footnotes moved to the text of the 
regulation or commentary, as appropriate, to facilitate compliance with 
the regulation.
17(a) Form of Disclosures
17(a)(1)
    The Board proposes special rules in new Sec.  226.37 and associated 
commentary to govern the format of disclosures required under proposed 
Sec. Sec.  226.38 and 226.20(d), and existing Sec. Sec.  226.19(b) and 
226.20(c). These new format rules would be in addition to the rules 
contained in current Sec.  226.17(a)(1). Current Sec.  226.17(a)(1) 
requires that closed-end credit disclosures be grouped together, 
segregated from everything else, and not contain any information not 
directly related to the disclosures. The Board proposes to revise Sec.  
226.17(a)(1) to clarify that the general disclosure standards continue 
to apply to transactions secured by real property or a dwelling, but 
under the proposal, creditors would also be required to meet the higher 
standards under proposed Sec.  226.37. In addition, Sec.  226.17(a)(1) 
would be revised to reflect the requirement of electronic disclosures 
in certain circumstances, as discussed under Sec.  226.19(d). Under the 
proposal, the substance of footnotes 37 and 38 would be moved to the 
regulatory text of Sec.  226.17(a)(1).
    Footnotes 37 and 38 currently provide exceptions to the grouped and 
segregated requirement under Sec.  226.17(a)(1). Footnote 37 allows 
creditors to include certain information not directly related to the 
required disclosures, such as the consumer's name, address, and account 
number. Footnote 38, which implements TILA Section 128(b)(1) in part, 
allows creditors to exclude certain required disclosures from the 
grouped and segregated requirement, such as the creditor's identity 
under Sec.  226.18(a). 15 U.S.C. 1638(b)(1). The Board proposes to 
revise the substance of footnote 38 to require that the creditor's 
identity under Sec.  226.18(a) be subject to the grouped together and 
segregated requirement for all closed-end credit disclosures. (See 
proposed Sec.  226.37(a)(2), which parallels this approach for 
transactions secured by real property or a dwelling). The Board 
proposes to make this adjustment pursuant to its authority under TILA 
Section 105(a). 15 U.S.C. 1604(a). Section 105(a) authorizes the Board 
to make exceptions and adjustments to TILA to effectuate the statute's 
purposes, which include facilitating consumers' ability to compare 
credit terms, and avoiding the uninformed use of credit. 15 U.S.C. 
1601(a).
    The Board believes requiring the creditor's identity to be grouped 
together with required disclosures could assist consumers. The Board 
believes it is important for the disclosures to bear the creditor's 
identity so that consumers can more easily identify the appropriate 
entity. As a result, the Board believes the proposal would help serve 
TILA's purpose to provide meaningful disclosure of terms.
    Commentary to Sec.  226.17(a)(1) provides guidance to creditors 
regarding the general disclosures standards contained in Sec.  
226.17(a)(1). The Board proposes to clarify the applicability of 
comments 17(a)(1)-2, -5, -6, and -7 to transactions secured by real 
property or a dwelling.
    Current comment 17(a)(1)-2 provides an exception to the grouped and 
segregated requirement for disclosures on variable rate transactions 
required under existing Sec. Sec.  226.19(b) and 226.20(c). For the 
reasons discussed under proposed Sec.  226.37(a)(2), the Board proposes 
to require that ARM loan program disclosures under proposed Sec.  
226.19(b), and ARMs adjustment notices under proposed Sec.  226.20(c), 
be subject to the grouped and segregated requirement. As a result, the 
reference made to Sec. Sec.  226.19(b) and 226.20(c) would be removed 
from comment 17(a)(1)-2.
    Current comment 17(a)(1)-5, which addresses information considered 
directly related to the segregated disclosures, would be revised to 
clarify that it does not apply to transactions secured by real property 
or a dwelling, and to cross-reference proposed Sec.  226.37(a)(2). 
Under the proposal, cross-references in comments 17(a)(1)-5(viii), 
(xi), (xii), and (xvi) would be updated; no substantive change is 
intended. In addition, as noted below, proposed revisions to Sec.  
226.18(f) regarding variable rate transactions, and proposed Sec.  
226.38(j)(6) regarding assumption disclosure for transactions secured 
by real property or a dwelling, render comments 17(a)(1)-5(xiii) and 
(xiv) unnecessary and therefore those comments would be deleted. 
Finally, comment 17(a)(1)-5(xvi) would be revised to update cross-
references.
    As discussed under proposed Sec. Sec.  226.37(a)(2) and 226.38, the 
Board proposes to require that creditors make disclosures for 
transactions secured by real property or a dwelling only as applicable. 
Current comment 17(a)(1)-6, which permits creditors to design multi-
purpose forms for closed-end credit disclosures as long as they are 
clear and conspicuous, would be revised to clarify that it does not 
apply to transactions secured by real property or a dwelling, as 
discussed more fully below under proposed Sec.  226.37(a)(2).
    Finally, the Board proposes to clarify in current comment 17(a)(1)-
7 that transactions secured by real property or a dwelling and that 
have balloon payment financing with leasing characteristics are treated 
as closed-end credit under TILA and subject to its disclosure 
requirements.
17(a)(2)
    Section 226.17(a)(2), which implements TILA Section 122(a), 
requires the terms finance charge and annual percentage rate, together 
with a corresponding amount or percentage rate, to be more conspicuous 
than any other disclosure, except the creditor's identity under Sec.  
226.18(a). The Board proposes new disclosure requirements under 
proposed Sec.  226.38(e)(5)(ii) for the finance charge (renamed 
``interest and settlement charges''), and under proposed Sec. Sec.  
226.37(a)(2) and 226.38(b) for the APR. As a result, the Board would 
revise Sec.  226.17(a)(2) to be inapplicable to transactions secured by 
real property or a dwelling.
17(b) Time of Disclosures
    Section 227.17(b) and comment 17(b)-1 require creditors to make 
closed-end credit disclosures before consummation of the transaction; 
special timing requirements apply to dwelling-secured transactions and 
variable-rate transactions. As discussed more fully under Sec.  226.19, 
the Board is proposing to require creditors to make pre-consummation 
disclosures for transactions secured by real property or a dwelling in 
accordance with special timing requirements. As a result, the Board 
proposes to revise Sec.  226.17(b) and comment 17(b)-1 to clarify that 
more specific timing rules would apply to transactions secured by real 
property or a dwelling. Current comment 17(b)-2, which addresses 
disclosure requirements for transactions converted from open-end to 
closed-end, would be revised to clarify that the special timing 
requirements under Sec.  226.19(b) would apply for adjustable rate 
transactions secured by real property or a dwelling.

[[Page 43253]]

17(c) Basis of Disclosures and Use of Estimates
17(c)(1) Legal Obligation
    Section 226.17(c)(1) requires that disclosures under subpart C 
reflect the terms of the legal obligation between the parties. 
Commentary to Sec.  226.17(c)(1) provides guidance regarding disclosure 
of specific transaction types and loan features. The Board proposes to 
add new provisions in Sec.  226.17(c)(1)(i) through (vi) to move 
certain content from commentary to the regulation, as discussed below. 
In addition, the Board would revise certain commentary to Sec.  
226.17(c)(1) to reflect the new disclosure regime for mortgages, and 
redesignate comments as appropriate. Each of these proposed 
subsections, and accompanying commentary, is discussed below.
    Comments 17(c)(1)-1 and 17(c)(1)-2 generally address disclosure of 
the legal obligation and modification of such obligation. Comment 
17(c)(1)-1 would be revised to include the general principle that the 
consumer is presumed to abide by the terms of the legal obligation. For 
example, proposed comment 17(c)(1)-1 states that creditors should 
assume that a consumer will make payments on time and in full. This 
proposed revision is consistent with existing comment 17(c)(2)(i)-3, 
which states that creditors may base all disclosures on the assumption 
that payments will be made on time, disregarding any possible 
inaccuracies resulting from consumers' payment patterns. Comment 
17(c)(2)(i)-3 specifically addresses disclosures for simple-interest 
transactions that potentially may be affected by late payments. The 
proposed revisions to comment 17(c)(1)-1 would clarify that disclosures 
for all transactions subject to Sec.  226.17 should be based on the 
assumption that the consumer will adhere to the terms of the legal 
obligation.
    Comment 17(c)(1)-2 would be revised to clarify that transactions 
secured by real property or a dwelling are subject to the special 
disclosure rules under proposed Sec.  226.38(a)(3) and (c). Under the 
proposal, preferred-rate loans with a fixed interest rate would not be 
considered ARMs, and therefore, comment 17(c)(1)-2 also would be 
revised to remove the cross-reference to Sec.  226.19(b). Comment 
17(c)(1)-2 would be redesignated as 17(c)(1)-2(i) through (iii). 
Comment 17(c)(1)-16, which addresses disclosure for credit extensions 
that may be treated as multiple transactions, would be moved and 
redesignated as comment 17(c)(1)-3; no substantive change is intended.
    Comment 17(c)(1)-15 states that where a deposit account is created 
for the sole purpose of accumulating payments that are applied to 
satisfy the consumer's credit obligation--a practice used in Morris 
Plan transactions--payments to that account are treated the same as 
loan payments. Under the proposal, comment 17(c)(1)-15 would be 
removed. As discussed below, Morris Plan transactions are rare. In 
addition, the Board believes that such deposits clearly constitute loan 
payments and therefore comment 17(c)(1)-15 is unnecessary.
    The remaining commentary to Sec.  226.17(c)(1) would be revised and 
redesignated as discussed below under proposed subsections 17(c)(1)(i) 
through (vi).
17(c)(1)(i) Buydowns
    Comments 17(c)(1)-3 through 17(c)(1)-5 address third-party 
buydowns, consumer buydowns, and split buydowns, respectively. The 
proposed rule would add a new provision in Sec.  226.17(c)(1)(i) that 
reflects that existing commentary about buydowns. Proposed Sec.  
226.17(c)(1)(i) requires creditors to disclose an APR that is a 
composite rate, based on the rate in effect during the initial period 
and the rate in effect for the remainder of the loan's term, if the 
consumer's interest rate or payments are reduced for all or part of the 
loan term. Proposed Sec.  226.17(c)(1)(i) applies to seller or third-
party buydowns if they are reflected in the legal obligation, and to 
all consumer buydowns.
    Comments 17(c)(1)-3 through 17(c)(1)-5 would be redesignated as 
comments 17(c)(1)(i)-1 through -4 and revised to reflect changes in the 
terminology used under the proposed rule to describe the finance 
charge, for transactions secured by real property or a dwelling.
17(c)(1)(ii) Wrap-Around Financing
    Comment 17(c)(1)-6 provides guidance on disclosures for 
transactions that involve wrap-around financing; comment 17(c)(1)-7 
provides guidance on disclosures for wrap-around transactions that 
include a balloon payment. Both comments state that, in transactions 
that involve wrap-around financing, the amount financed equals the sum 
of the new funds advanced by the wrap creditor and the remaining 
principal owed to the original creditor on the pre-existing loan. The 
proposed rule would incorporate this guidance into proposed Sec.  
226.17(c)(1)(ii). Comments 17(c)(1)-6 and 17(c)(1)-7 would be 
redesignated as comments 17(c)(1)(ii)-1 and 17(c)(1)(ii)-2, 
respectively; no substantive change is intended.
17(c)(1)(iii) Variable- or Adjustable-Rate Transactions
    Comment 17(c)(1)-8 currently provides that creditors should base 
disclosures for variable- or adjustable-rate transactions on the full 
term of the transaction and the terms in effect at the time of 
consummation and should not assume that the rate will increase. The 
proposed rule would incorporate that guidance into proposed Sec.  
226.17(c)(1)(iii). Proposed Sec.  226.17(c)(1)(iii) would require 
creditors to base disclosures for variable- or adjustable-rate 
transactions on the full loan term, and on the terms in effect at the 
time of consummation, except as otherwise provided under proposed 
Sec. Sec.  226.17(c)(1)(iii) or 226.38(a)(3) and (c) for transactions 
secured by real property or a dwelling.
    As discussed below under proposed Sec.  226.38(c), creditors would 
be required to disclose specified rate and payment adjustments for 
adjustable-rate loans secured by real property or a dwelling. As a 
result, comment 17(c)(1)-8 would be revised to clarify that creditors 
must disclose specified rate and payment adjustments for adjustable-
rate loans secured by real property or a dwelling in accordance with 
the requirements under proposed Sec.  226.38(c). Current comment 
17(c)(1)-8 would be redesignated as comment 17(c)(1)(iii)-1.
    Current comment 17(c)(1)-9, which states that a variable-rate 
feature does not, by itself, make the disclosures estimates, would be 
redesignated as comment 17(c)(1)(iii)-2. No substantive change is 
intended.
17(c)(1)(iii)(A) and (B) Discounted and Premium Rates
    Comment 17(c)(1)-10 provides that if the initial interest for a 
variable-rate transaction is not determined by the index or formula 
used to make later interest-rate adjustments, disclosures should 
reflect a composite APR based on the initial interest rate for as long 
as it is charged and, for the remainder of the term, the rate that 
would have been applied using the index or formula at the time of 
consummation. The proposed rule would incorporate that commentary into 
proposed Sec.  226.17(c)(1)(iii)(B).
    Proposed Sec.  226.17(c)(1)(iii) contains two separate disclosure 
rules; which disclosure rule applies depends on whether or not the 
initial rate is determined using the same index or formula used to make 
subsequent rate adjustments. If the initial rate is determined using 
the same index or

[[Page 43254]]

formula used for subsequent rate adjustments, then the general rule 
that disclosures must reflect the terms in effect at the time of 
consummation applies under proposed Sec.  226.17(c)(1)(iii)(A). If the 
initial rate is set using a different index or formula, however, 
disclosures must reflect a composite APR under proposed Sec.  
226.17(c)(1)(iii)(B). The composite APR would be based on the initial 
rate for as long as it is charged and, for the remainder of the loan 
term, the rate that would have applied if such index or formula had 
been used at the time of consummation. Comments 17(c)(1)-10(i) through 
(vi) would be revised to reflect that, under the proposed rule, for 
transactions secured by real property or a dwelling, new terminology 
would be used for specified disclosures (for example, the term 
``interest and settlement charges'' would be used in place of ``finance 
charge''), as discussed below. Comments 17(c)(1)-10(i) through (vi) 
also would be redesignated as comments 17(c)(1)(iii)-3(i) through (vi); 
no substantive change is intended. Finally, a cross-reference in 
comment 24(c)-4 would be updated to reflect the redesignation of 
comment 17(c)(1)-10.
    Comment 17(c)(1)-11 provides that variable rate transactions 
include the following transaction types, even if initially they feature 
a fixed interest rate: balloon-payment loans where the creditor is 
unconditionally obligated to renew, but can increase the interest rate 
at the time of renewal; preferred-rate loans where the interest rate 
may increase upon some future event; and price-level adjusted mortgages 
that provide for periodic payment and loan balance adjustments. (But 
see the discussion under proposed Sec.  226.19(b) on comment 19(b)-5, 
which clarifies that creditors need not provide the disclosures 
required by Sec.  226.19(b) for specified balloon-payment, preferred-
rate, and price-level adjusted mortgages.) As discussed below, proposed 
Sec.  226.38(a)(3), which address disclosure of loan type for 
transactions secured by real property or a dwelling, would treat each 
of these transaction types as fixed-rate loans. As a result, comment 
17(c)(1)-11 would be revised to clarify that balloon-payment, 
preferred-rate, and price-level adjusted mortgages secured by real 
property or a dwelling are considered fixed-rate transactions for the 
purposes of the loan type disclosure required under proposed Sec.  
226.38(a)(3). (See also the discussion under proposed Sec.  226.38(c), 
which clarifies that the loan type attributed to transactions under 
proposed Sec.  226.38(a)(3) applies for purposes of interest rate and 
payment summary disclosures under proposed Sec.  226.38(c).)
    Further, certain shared-equity or shared-appreciation mortgages are 
considered variable-rate transactions under comment 17(c)(1)-11. 
However, under the proposal, if a mortgage is secured by real property 
or a dwelling, the mortgage would not be considered an adjustable-rate 
loan solely because of a shared-equity or shared-appreciation feature. 
As discussed under proposed Sec. Sec.  226.19(b)(2)(ii)(F) and 
226.38(d)(2)(vi), the Board would require creditors to disclose shared-
equity or shared-appreciation as a loan feature for transactions 
secured by real property or a dwelling. As a result, guidance in 
comment 17(c)(1)-11 relating to shared-equity and shared-appreciation 
mortgages would be deleted.
    Comment 17(c)(1)-11 would be redesignated as comment 17(c)(1)(iii)-
4(i) through (iii), except that guidance under current comment 
17(c)(1)-11 regarding graduated payment mortgages and step-rate 
transactions without a variable-rate feature would be redesignated as 
comment 17(c)(1)(iii)-5. A cross-reference to comment 17(c)(1)-11 in 
comment 30-1 would be updated accordingly. Comment 17(c)(1)-12, which 
addresses graduated-payment ARMs, would be redesignated as comment 
17(c)(1)(iii)-6(i) through (iii); no substantive change is intended.
    Current comment 17(c)(1)-13 states that creditors may base 
disclosures for growth-equity mortgages (also referred to as ``payment-
escalated mortgages'') on estimated payment increases, using the best 
information reasonably available, or may disclose by analogy to the 
variable-rate disclosures in Sec.  226.18(f)(1). As discussed below, 
current Sec.  226.18(f) contains disclosure requirements for variable-
rate transactions that differ based on a loan's security interest and 
term. Under the proposed rule, Sec.  226.18(f) would be revised so that 
a loan's security interest, not its term, would determine whether the 
creditor would provide variable- or adjustable-rate disclosures. 
Accordingly, under the proposal, the reference made in comment 
17(c)(1)-13 to providing disclosures analogous to those under current 
Sec.  226.18(f)(1) would be deleted, and comment 17(c)(1)-13 would be 
revised to require creditors to base disclosures for growth-equity 
mortgages using estimated payment increases. The reference to 
graduated-payment mortgages would be removed for clarity. Comment 
17(c)(1)-13 would be redesignated as comment 17(c)(1)(iii)-7.
17(c)(1)(iv) Reverse Mortgages
    Comment 17(c)(1)-14 provides that if a reverse mortgage has a 
specified period for disbursements but repayment is due only upon the 
occurrence of a future event such as the death of the consumer, the 
creditor must assume that repayment will occur when disbursements end. 
The proposed rule would incorporate this commentary into the regulation 
as proposed Sec.  226.17(c)(1)(vi). Comment 17(c)(1)-14 would be 
revised to clarify that the disclosure requirements for reverse 
mortgage under Sec.  226.33 apply only if the consumer's death is one 
of the conditions of repayment, as provided under Sec.  226.33(a). 
Comment 17(c)(1)-14 also would be revised by removing the discussion of 
shared-equity and shared-appreciation features because under the 
proposed rule transactions with such features would not be deemed 
adjustable-rate loans solely because of such features, as discussed 
above. Further, comment 17(c)(1)-14 would be revised to state that, if 
a reverse mortgage has an adjustable interest rate and is secured by 
real property or a dwelling, the creditor must disclose the shared-
equity or shared-appreciation feature as required under Sec. Sec.  
226.19(b)(2)(ii)(F) and 226.38(d)(2)(vi). Finally, under the proposed 
rule comment 17(c)(1)-14 would be redesignated as comment 17(c)(1)(iv)-
1(i) through (iii).
17(c)(1)(v) Tax Refund-Anticipation Loans
    Comment 17(c)(1)-17 clarifies that if a consumer is required to 
repay a tax refund-anticipation loan when the consumer receives a tax 
refund, disclosures are to be based on the creditor's estimate of the 
time the refund will be delivered. Comment 17(c)(1)-17 further 
clarifies that the finance charge includes any repayment amount that 
exceeds the loan amount that is not excluded from the finance charge 
under Sec.  226.4. The proposed rule would incorporate this guidance 
into the regulation as proposed Sec.  226.17(c)(1)(v). Comment 
17(c)(1)-17 which would be redesignated as comments 17(c)(1)(v)-1(i) 
and -1(ii) under the proposed rule. No substantive change is intended.
17(c)(1)(vi) Pawn Transactions
    For pawn transactions, proposed Sec.  226.17(c)(1)(vi) would 
require creditors to: (1) Disclose the initial sum provided to the 
consumer as the amount financed; (2) include the difference between the 
initial sum provided to the consumer and the price at which the

[[Page 43255]]

item is pledged or sold in the finance charge; and (3) determine the 
APR using the redemption date as the end of the loan term. Proposed 
Sec.  226.17(c)(1)(vi) is consistent with comment 17(c)(1)-18, which 
would be redesignated as comment 17(c)(1)(vi)-1. No substantive change 
is intended.
17(c)(2) Estimates
    Under the proposal, Sec.  226.17(c)(2) would be revised to clarify 
that proposed Sec.  226.19(a) would limit creditors' ability to provide 
estimated disclosures for transactions secured by real property or a 
dwelling. As discussed below, proposed Sec.  226.19(a) requires 
creditors to provide disclosures that consumers must receive no later 
than three business days before consummation and which may not be 
estimated disclosures. Comments 17(c)(2)(i)-1 and 17(c)(2)(i)-2, which 
address the basis and labeling of estimates, respectively, also would 
be revised to reflect this limitation. In addition, comment 
17(c)(2)(i)-3, which states that creditors may base all disclosures on 
the assumption that consumers will make timely payments, would be 
revised to clarify that creditors may also assume that consumers would 
make payments in the amounts required by the terms of the legal 
obligation. In technical revisions, a heading would be added to Sec.  
226.17(c)(2) for clarity; no substantive change is intended.
17(c)(3) Disregarded Effects
    In technical revisions, a heading would be added to Sec.  
226.17(c)(3) for clarity, and guidance under current comment 17(c)(3)-1 
would be redesignated as 17(c)(3)-1(i) and (ii). No substantive change 
is intended.
17(c)(4) Disregarded Irregularities
    Under the proposal, Sec.  226.17(c)(4) would be revised to clarify 
that creditors may disregard period irregularities when disclosing the 
payment summary table, as required under proposed Sec.  226.38(c), for 
transactions secured by real property or a dwelling. No substantive 
change to the treatment of period irregularities is intended.
    In technical revisions, a heading would be added to Sec.  
226.17(c)(4) for clarity. Also, comment 17(c)(4)-1 would be 
redesignated as comment 17(c)(4)-1(i) and (ii), and comment 17(c)(4)-2 
would be redesignated as comment 17(c)(4)-2(i) through (iii). No 
substantive change is intended.
17(c)(5) Demand Obligations
    Under the proposal, comment 17(c)(5)-1, which addresses demand 
obligation disclosures, would be revised to reflect that proposed 
Sec. Sec.  226.19(b)(2)(ii)(D) and 226.38(d)(2)(iv) contain 
requirements for disclosing a demand feature in transactions secured by 
real property or a dwelling. Comment 17(c)(5)-2, which addresses future 
events such as the maturity date, would be revised to clarify that 
certain disclosures for transactions not secured by real property or a 
dwelling may not contain estimated disclosures, as discussed below 
under proposed Sec.  226.19(a)(2). Comment 17(c)(5)-3, which addresses 
demand after a stated period, would be revised to delete obsolete 
references to specific loan programs and update cross-references. 
Comment 17(c)(5)-4, which addresses balloon payment mortgages, would be 
revised to reflect that creditors must disclose a payment summary table 
for transactions secured by real property or a dwelling under proposed 
Sec.  226.38(c) (rather than a payment schedule, as required for 
transactions not secured by real property or a dwelling under Sec.  
226.18(g)) and to update a cross-reference. In technical revisions, a 
heading would be added to Sec.  226.17(c)(5) for clarity; no 
substantive change is intended.
17(c)(6) Multiple Advance Loans
    In technical revisions, a heading would be added to Sec.  
226.17(c)(6) for clarity; no substantive change is intended.
17(d) Multiple Creditors; Multiple Consumers
    Section 226.17(d) addresses transactions that involve multiple 
creditors and consumers. The Board does not propose any changes to 
these provisions, except that the guidance contained in current comment 
17(d)-1 would be redesignated as comment 17(d)-1(i) through (iii); no 
substantive change is intended.
17(e) Effect of Subsequent Events
    Section 226.17(e) addresses whether a subsequent event makes a 
disclosure inaccurate or requires a new disclosure. Under proposed 
Sec.  226.20(e), if a creditor obtains insurance on behalf of the 
consumer subsequent to consummation, the creditor would be required to 
provide notice before charging for such insurance. The Board proposes 
to revise comment 17(e)-1 to reflect this new requirement.
17(f) Early Disclosures
    Under the proposal, in addition to providing early disclosures, 
creditors would be required to provide additional disclosures that a 
consumer must receive no later than three business days before 
consummation for transactions secured by real property or a dwelling. 
Accordingly, comments 17(f)-1 through -4 would be revised to clarify 
that the special disclosure timing requirements under Sec.  
226.19(a)(2) would apply to transactions secured by real property or a 
dwelling. In technical revisions, guidance in current comment 17(f)-1 
would be renumbered and headings revised to clarify that some of the 
current guidance would not apply to transactions secured by real 
property or a dwelling under the proposed rule.
17(g) Mail or Telephone Orders--Delay in Disclosures
    Section 226.17(g) and comment 17(g)-1 permit creditors to delay 
disclosures for transactions involving mail or telephone orders until 
the first payment is due if certain information, such as the APR or 
finance charge, is provided to the consumer in advance of any request. 
As discussed under Sec.  226.19(a) and 226.20(c), the Board proposes 
special timing requirements for disclosures for transactions secured by 
real property or a dwelling and for adjustable rate transactions. As a 
result, the Board proposes to revise Sec.  226.17(g) and comment 17(g)-
1 to clarify that they do not apply to transactions secured by real 
property or a dwelling.
17(h) and 17(i) Series of Sales--Delay in Disclosures; Interim Student 
Credit Extensions
    Sections 226.17(h) and (i) address delay in disclosures in 
transactions involving a series of sales and interim student credit 
extensions. The Board does not propose any substantive changes to these 
provisions. In technical revisions, a cross-reference is corrected.

Section 226.18 Content of Disclosures

    As noted, the Board proposes to require creditors to provide new 
disclosures for transactions secured by real property or a dwelling 
under proposed Sec.  226.38. Accordingly, the Board would clarify under 
Sec.  226.18 that creditors must provide the new disclosures under 
Sec.  226.38 for transactions secured by real property or a dwelling. 
In addition, the Board proposes conforming amendments to Sec.  226.18 
and associated commentary to reflect the new disclosure regime for 
mortgages, and would redesignate comments as appropriate.
18(a) Creditor
    Currently, Sec.  226.18(a), which implements TILA Section 
128(a)(1), requires disclosure of the identity of the creditor making 
the disclosures. 15

[[Page 43256]]

U.S.C. 1638(a)(1). Comment 18(a)-1 states, in part, that this 
disclosure may, at the creditor's option, appear apart from the other 
required disclosures. As discussed above, currently, Sec.  226.17(a)(1) 
footnote 38, which implements TILA Section 128(b)(1), allows creditors 
to exclude from the grouped and segregated requirement certain required 
disclosures, such as the creditor's identity. 15 U.S.C. 1638(b)(1). 
However, the Board proposes to revise the substance of footnote 38 to 
require the creditor's identity under Sec.  226.18(a) to be subject to 
the grouped together and segregated requirement for all closed-end 
credit disclosures. Thus, the Board proposes to revise comment 18(a)-1 
to reflect this change.
18(b) Amount Financed
    Section 226.18(b) addresses the disclosure and calculation of the 
amount financed. The Board proposes to revise comment 18(b)-2, which 
provides guidance regarding treatment of rebates and loan premiums for 
the amount financed calculation required under Sec.  226.18(b). Comment 
18(b)-2 primarily addresses credit sales, such as automobile financing, 
and provides that creditors may choose whether to reflect creditor-paid 
premiums and seller- or manufacturer-paid rebates in the disclosures 
required under Sec.  226.18. The Board believes that creditor-paid 
premiums and seller- or manufacturer-paid rebates are analogous to 
buydowns. Like buydowns, such premiums and rebates may or may not be 
funded by the creditor and reduce costs that otherwise would be borne 
by the consumer. Accordingly, their impact on the amount financed, like 
that of buydowns, properly depends on whether they are part of the 
legal obligation. See comments 17(c)(1)-1 through -5. The Board is 
proposing to revise comment 18(b)-2 to clarify that the disclosures, 
including the amount financed, must reflect loan premiums and rebates 
regardless of their source, but only if they are part of the terms of 
the legal obligation between the creditor and the consumer. As 
discussed below, proposed comment 38(e)(5)(iii)-2 would parallel this 
approach for transactions secured by real property or a dwelling.
    In addition, the Board proposes to revise comment 18(b)(2)-1, which 
addresses amounts included in the amount financed calculation that are 
not otherwise included in the finance charge, to remove reference to 
real estate settlement charges for the reasons discussed more fully 
under Sec.  226.4.
18(c) Itemization of Amount Financed
    Section 226.18(c) requires a separate disclosure of the itemization 
of amount financed and provides guidance on the amounts that must be 
included in such itemization. As discussed below, the Board proposes 
new Sec.  226.38(e)(5)(iii) to address the calculation and disclosure 
requirements of the amount financed for transactions secured by real 
property or a dwelling. Under the proposal, the substance of footnote 
40, which permits creditors to substitute good faith estimates required 
under RESPA for the itemization of the amount financed for dwelling-
secured transactions, would be moved to new Sec.  226.38(j)(1)(iii).
    Comment 18(c)-2 affords creditors flexibility in the information 
that may be included in the itemization of amount financed. Under the 
proposal, the Board would revise comment 18(c)-2(i) to remove 
references made to escrow items and to the commentary under Sec.  
226.18(g) because the proposal renders them unnecessary, and 18(c)-
2(vi) to reflect a technical revision with no intended change in 
substance or meaning. The Board also proposes to move comment 18(c)-4 
regarding the exemption afforded to RESPA transactions, and 
18(c)(1)(iv)-2 regarding prepaid mortgage insurance premiums to 
proposed comments 38(j)(1)(iii)-1 and 38(j)(1)(i)(D)-2, respectively, 
because they apply only to dwelling-secured transactions.
18(d) Finance Charge
    Section 226.18(d) requires disclosure of the finance charge for 
closed-end credit. As discussed below, the Board proposes new Sec.  
226.38(e)(5)(ii) to address disclosure of the finance charge (renamed 
``interest and settlement charges'') for transactions secured by real 
property or a dwelling. As a result, reference to the finance charge 
tolerances for mortgage loans would be moved from Sec.  226.18(d) to 
proposed Sec.  226.38(e)(5)(ii); no substantive change is intended. 
Technical amendments to comment 18(d)(2) would reflect this revision.
18(e) Annual Percentage Rate
    Section 226.18(e) requires disclosure of the annual percentage 
rate, using that term. The substance of footnote 42 would be moved to 
the regulatory text of Sec.  226.18(e). Technical amendments to comment 
18(e)-2 would reflect this revision; no substantive change is intended.
18(f) Variable Rate
    Section 226.18(f)(1) contains disclosure requirements for variable-
rate transactions not secured by a consumer's principal dwelling and 
variable-rate transactions secured by a consumer's principal dwelling 
if the loan term is one year or less. Section 226.18(f)(1) requires 
creditors to make the following disclosures within three business days 
after receiving the consumer's application: (1) Circumstances under 
which the APR may increase; (2) any limitations on the increase; (3) 
the effect of an increase; and (4) an example of the payment terms that 
would result from an increase. Section 226.18(f)(2) applies to 
variable-rate transactions secured by a consumer's principal dwelling 
with a loan term greater than one year, and requires creditors to 
disclose that the loan has a variable-rate feature together with a 
statement that variable-rate program disclosures (required by current 
Sec.  226.19(b)) have been provided earlier.
    The Board adopted Sec.  226.18(f)(2) in 1987, at the same time that 
it adopted Sec.  226.19(b) (disclosures for variable-rate mortgages 
with terms greater than one year). The Board adopted those provisions 
based on recommendations by the Federal Financial Institutions 
Examination Council (FFIEC). 52 FR 48665; Dec. 24, 1987. However, the 
Board applied the requirements of those provisions only to loans 
secured by a principal dwelling with a term greater than one year. 
Loans secured by a principal dwelling with a term of one year or less, 
and loans not secured by a principal dwelling remained subject to rules 
in Sec.  226.18(f)(1). The Board did not apply the new variable-rate 
loan disclosure requirements to such loans because public comments 
expressed concern about potential compliance problems for creditors 
making short-term loans. 52 FR at 48666.
    Proposed Sec. Sec.  226.19(b) and 226.38(c) contain disclosure 
requirements for closed-end adjustable-rate loans secured by real 
property or a dwelling, and would apply the same rules to loans with a 
term of one year or less as for loans with a term greater than one 
year. Disclosures required by those provisions are discussed below. As 
a result, Sec.  226.18(f)(2) and comment 18(f)(2)-1, which address 
requirements and guidance for closed-end adjustable-rate loans secured 
by real property or a dwelling, are unnecessary and would be deleted. 
The substance of footnote 43, which permits creditors to substitute 
information required under Sec.  226.18(f)(2) and 226.19(b) for the 
disclosures required by Sec.  226.18(f)(1), would also be deleted. 
Section 226.18(f)(1)(i) through (iv) would be redesignated as Sec.  
226.18(f)(1) through

[[Page 43257]]

(4), and references in comment 18(f)-1 would be updated.
    As discussed below, proposed Sec. Sec.  226.19(b)(3)(iii) and 
226.38(d)(2)(iii) regarding disclosure of shared-equity or shared-
appreciation loan features would render guidance about shared-equity or 
shared-appreciation mortgages in comment 18(f)-1 unnecessary, and 
therefore that comment would be deleted. Comment 18(f)(1)-1 regarding 
terms used in disclosures, and comment 18(f)(1)(i)-2 regarding 
conversion features would be redesignated as comments 18(f)-2 and -3, 
respectively. Finally, comments 18(f)(1)(i)-1, 18(f)(1)(ii)-1, 
18(f)(1)(iii)-1, and 18(f)(1)(iv)-1 would be redesignated as comments 
18(f)(1)-1, 18(f)(2)-1, 18(f)(3)-1, and 18(f)(4)-1, respectively.
18(g) Payment Schedule
    Section 226.18(g) and associated commentary address the disclosure 
of the payment schedule for all closed-end credit. As discussed under 
proposed Sec.  226.38(c), the Board would require creditors to provide 
disclosures regarding interest rates and monthly payments in a tabular 
format for transactions secured by real property or a dwelling. As a 
result, creditors would not need to comply with the disclosure 
requirements of Sec.  226.18(g) for such transactions. However, as 
discussed under proposed Sec.  226.38(e)(5)(i), creditors would be 
required to disclose the number and total amount of payments that the 
consumer would make over the full term of the loan for transactions 
secured by real property or a dwelling. Proposed comment 18(e)(5)(i)-1 
would require creditors to calculate the total payments following the 
rules under Sec.  226.18(g) and associated commentary. As a result, the 
Board proposes to revise comment 18(g)-3 to require creditors to 
disclose the total number of payments for all payment levels as a 
single figure for transactions secured by real property or a dwelling, 
and to cross-reference proposed Sec.  226.38(e)(5)(i).
18(h) Total of Payments
    In a technical revision, the substance of footnote 44 would be 
moved to the regulation text of Sec.  226.18(e); technical amendments 
to comment 18(h)-3 would reflect this revision.
18(i) Demand Feature
    Section 226.18(i) and associated commentary address the following 
for all closed-end credit: disclosure of a demand feature; the type of 
demand features covered; and the relationship to payment schedule 
disclosures. The Board does not propose any change to this provision, 
except that comments 18(i)-2 and -3 would be updated to cross-reference 
proposed Sec. Sec.  226.38(d)(2)(iv) and 226.38(c), which address the 
disclosure requirements for a demand feature and payment schedule, 
respectively, for transactions secured by real property or a dwelling. 
No substantive change is intended.
18(k) Prepayment
    Section 226.18(k)(1) provides that, when an obligation includes a 
finance charge computed from time to time by application of a rate to 
the unpaid principal balance, the creditor must disclose a statement 
that indicates whether or not a penalty may be imposed if the 
obligation is prepaid in full. Comment 18(k)(1)-1 provides examples of 
charges considered penalties under Sec.  226.18(k)(1). One such example 
is ``interest charges for any period after prepayment in full is 
made.'' When the loan is prepaid in full, there is no balance to which 
the creditor may apply the interest rate. Accordingly, the proposed 
rule would revise this example for clarity; no substantive change is 
intended. Proposed Sec.  226.38(a)(5) contains requirements for 
disclosing prepayment penalties for transactions secured by real 
property or a dwelling. As discussed below, commentary on proposed 
Sec.  226.38(a)(5) is consistent with the commentary on Sec.  
226.18(k), as proposed to be revised.
18(j) Through 18(m) Total Sale Price; Prepayment; Late Payment; 
Security Interest
    Sections 226.18(j), (k), (l), and (m) address, respectively, 
disclosures regarding: total sale price; prepayment; late payment; and 
security interest. The Board does not propose any changes to these 
provisions, except for a minor technical amendment to comment 18(k)(1)-
1, as discussed above. However, as noted below, the Board proposes new 
disclosure requirements under Sec. Sec.  226.38(a)(5) and 
226.38(d)(1)(iii) regarding prepayment penalties, Sec.  226.38(j)(3) 
regarding late payment, and Sec.  226.38(f)(2) regarding security 
interest, for transactions secured by real property or a dwelling.
18(n) Insurance and Debt Cancellation
    Section 226.18(n) requires disclosure of insurance and debt 
cancellation in accordance with the requirements under Sec.  226.4(d) 
to exclude such fees from the finance charge. For the reasons discussed 
under Sec.  226.4(d), the Board proposes to revise Sec.  226.18(n) and 
comment 18(n)-2 to clarify that this disclosure requirement also 
applies to debt suspension policies.
18(o) and 18(p) Certain Security-Interest Charges; Contract Reference
    Sections 226.18(o) and (p) address, respectively, disclosures 
regarding certain security-interest charges and contract reference. The 
Board does not propose any changes to these provisions. However, as 
noted below, the Board would require creditors to provide parallel 
contract references for transactions secured by real property or a 
dwelling under proposed Sec.  226.38(j)(5). No parallel disclosure for 
security-interest charges is proposed for transactions secured by real 
property or a dwelling because such disclosures would not apply to 
those transactions under the Board's proposed revisions to Sec.  226.4, 
discussed above.
18(q) Assumption Policy
    Section 226.18(q) and associated commentary require disclosure of 
assumption policies for residential mortgage transactions. Under the 
proposal, the Board proposes to move Sec.  226.18(q) and comments 
18(q)-1 and -2 to proposed Sec.  226.38(j)(6) and comments 38(j)(6)-1 
and -2, respectively, because assumption policies apply only to 
transactions secured by real property or a dwelling. No substantive 
change is intended.
18(r) Required Deposit
    Section 226.18(r) addresses disclosure requirements when creditors 
require consumers to maintain deposits as a condition to the specific 
transaction. Footnote 45 provides additional guidance on such required 
deposits and includes a reference to payments made under Morris Plans. 
Although at least one Morris Plan bank remains active, Morris Plans 
essentially are obsolete today. Accordingly, the Board proposes to move 
the substance of footnote 45 to the regulation text but delete the 
reference to Morris Plans. Comments 18(r)-1, -3, and -5 would also be 
similarly revised. In addition, under the proposal, comment 18(r)-2 on 
pledged-account mortgages would be moved to comment 38(i)-2 because it 
applies only to transactions secured by real property. (See also 
comment 17(c)(1)-15 on Morris Plans, which the Board proposes to delete 
as unnecessary.) Comment 18(r)-6 would be redesignated as comment 
18(r)-6(i) through (vii).

[[Page 43258]]

Section 226.19 Early Disclosures and Adjustable-Rate Disclosures for 
Transactions Secured by Real Property or a Dwelling

    Section 226.19(a) currently contains timing requirements for 
providing disclosures for closed-end transactions secured by a dwelling 
and subject to RESPA. Section 226.19(b) contains disclosure timing and 
content requirements for variable-rate loans secured by a consumer's 
principal dwelling. The Board proposes to revise Sec.  226.19(a) and 
(b) to apply the disclosures to any closed-end transaction secured by 
real property or a dwelling, for reasons discussed below. Section 
226.19(a) also would be revised to require creditors to provide new 
disclosures that a consumer must receive at least three business days 
before consummation, in addition to the existing requirement to provide 
early disclosures within three business days of application. The Board 
also proposes to revise the content of disclosures for ARMs required 
under Sec.  226.19(b), require new disclosures about risky loan 
features in proposed Sec.  226.19(c), and to include existing rules 
about disclosures provided through an intermediary agent or broker, or 
by telephone or electronic communication, in proposed Sec.  226.19(d).
19(a) Good Faith Estimates of Mortgage Transaction Terms and New 
Disclosures
    TILA Section 128(b)(2), 15 U.S.C. 1638(b)(2), requires creditors to 
mail or deliver to consumers good faith estimates of disclosures 
required by TILA Section 128(a), 15 U.S.C. 1638(a) (early disclosures), 
for a transaction secured by a dwelling and subject to RESPA. As 
amended by the MDIA, TILA Section 128(b)(2) requires creditors to 
deliver or mail the early disclosures at least seven business days 
before consummation. Further, TILA Section 128(b)(2), as amended by the 
MDIA, requires that the creditor provide corrected disclosures if the 
disclosed APR changes in excess of a specified tolerance. The consumer 
must receive the corrected disclosures no later than three business 
days before consummation. The Board implemented these MDIA requirements 
in Sec.  226.19(a) through a final rule effective July 30, 2009 (MDIA 
Final Rule). 74 FR 23289; May 19, 2009.
    The Board proposes to expand the coverage of Sec.  226.19(a) so 
that the timing provisions would apply to closed-end mortgage 
transactions secured by real property or a dwelling, and would not be 
limited to RESPA-covered transactions. Thus, proposed Sec.  226.19(a) 
would apply to transactions secured by real property that does not 
include a dwelling, such as vacant land, and transactions that are not 
subject to RESPA, such as construction loans.
    The Board also proposes to revise Sec.  226.19(a) so that, in 
addition to the early disclosures, the creditor must provide final 
disclosures that the consumer must receive no later than three business 
days before consummation. Under existing Sec.  226.19(a), by contrast, 
a consumer must receive new disclosures at least three business days 
before consummation only if changes to the previously disclosed APR 
exceed a specified tolerance. The Board is proposing two alternative 
provisions to address circumstances where terms change after the 
consumer has received the final disclosures.
19(a)(1)(i) Time of Good Faith Estimates of Disclosures
    TILA Section 128(b)(2), 15 U.S.C. 1638(b)(2), as amended by the 
MDIA, requires creditors to provide early disclosures if a transaction 
is secured by a dwelling and subject to RESPA. However, TILA's early 
disclosure requirements do not apply to mortgage transactions for 
personal, family, or household purposes if they are secured by real 
property that is not a dwelling, for example a consumer's business 
property. Creditors need not provide early disclosures for transactions 
secured by property of 25 acres or more, temporary financing (such as a 
construction loan), or transactions secured by vacant land because 
RESPA does not apply to such transactions. 24 CFR 3500.5(b)(1), (3), 
and (4).
    The Board proposes to expand Sec.  226.19(a) to cover transactions 
secured by real property, even if the property is not a dwelling and 
even if the transaction is not subject to RESPA. (Transactions secured 
by a consumer's interest in a timeshare plan would be treated 
differently, as discussed under Sec.  226.19(a)(5) below.) Under TILA 
Section 128(b)(2), 15 U.S.C. 1638(b)(2), if the transaction is not 
secured by a dwelling, or is not covered by RESPA, the creditor is only 
required to provide disclosures before consummation. The Board proposes 
to require creditors to provide early disclosures under TILA for all 
closed-end transactions secured by real property or a dwelling to 
facilitate compliance.
    Section 226.18 currently contains requirements for the content of 
transaction-specific disclosures secured by real property or a 
dwelling, whether or not creditors are required to provide that content 
in early disclosures. Although under the proposed rule Sec.  226.38 
rather than Sec.  226.18 would contain requirements for disclosure 
content for transactions secured by real property or a dwelling, the 
content required in early disclosures is the same as the content of 
disclosures provided in cases where early disclosures are not required. 
Applying the requirement to provide early disclosures to all 
transactions secured by real property or a dwelling would simplify 
creditors' determination of the time by which creditors must make the 
disclosures required by Sec.  226.38. The Board requests comment about 
operational or other issues involved in providing early disclosures for 
temporary loans, however. The Board also solicits comment on whether 
there are other types of loans exempt from RESPA to which it is not 
appropriate to apply proposed Sec.  226.19(a).
    Proposed new comment 19-1 states that proposed Sec.  226.19 applies 
to transactions secured by real property or a dwelling even if such 
transactions are not subject to RESPA. The proposed comment clarifies 
that TILA does not apply to transactions that are primarily for 
business, commercial, or agricultural purposes, however. (Proposed 
comment 19-1 addresses the introductory text to proposed Sec.  226.19, 
which provides that all of Sec.  226.19, not only Sec.  226.19(a), 
applies to closed-end transactions secured by real property or a 
dwelling.)
    Comment 19(a)(1)(i)-1, which discusses the coverage of Sec.  
226.19(a), would be removed because proposed comment 19-1 would discuss 
the coverage of all of proposed Sec.  226.19. Comment 19(a)(1)(i)-2 
would be revised to clarify that under the proposed rule disclosures 
required by proposed Sec.  226.19(a)(2) may not contain estimated 
disclosures, with limited exceptions. The comment also would be revised 
to reflect that proposed Sec.  226.37 contains requirements for 
disclosure of estimates and contingencies, as discussed below. Comment 
19(a)(1)(i)-3 would be revised to reflect that creditors may rely on 
RESPA and Regulation X to determine when an application is received, 
even for transactions not subject to RESPA. Comment 19(a)(1)(i)-5 would 
be revised to refer to the itemization of the amount financed 
disclosures in proposed Sec.  226.38(j) rather than in Sec.  226.18(c), 
as currently referenced. Finally, comments 19(a)(1)(i)-2 through -5 
would be redesignated as comments 19(a)(1)(i)-1 through -4.
19(a)(1)(ii) Imposition of Fees
    On July 30, 2008, the Board published the 2008 HOEPA Final Rule 
amending Regulation Z, which implements TILA

[[Page 43259]]

and HOEPA. The July 2008 final rule requires creditors to give 
transaction-specific cost disclosures no later than three business days 
after receiving a consumer's application, for closed-end mortgage 
transactions secured by a consumer's principal dwelling, under Sec.  
226.19(a)(1)(i). Further, the 2008 HOEPA Final Rule prohibits creditors 
and other persons from imposing a fee on the consumer, other than a fee 
for obtaining the consumer's credit history, before the consumer 
receives the early disclosures, under Sec.  226.19(a)(1)(ii) and (iii). 
Section 226.19(a)(1)(ii) provides that if the early disclosures are 
mailed to the consumer, the consumer is considered to have received 
them three business days after they are mailed. 73 FR 44522, 44600-
44601.
    The proposed rule would revise Sec.  226.19(a)(1)(ii) to conform to 
the presumption of receipt provision the Board subsequently adopted in 
the MDIA Final Rule in Sec.  226.19(a)(2)(ii).\40\ Under the proposed 
rule Sec.  226.19(a)(1)(ii) would be revised to provide that if the 
early disclosures are mailed to the consumer or delivered to the 
consumer by means other than delivery in person, the consumer is deemed 
to have received the corrected disclosures three business days after 
they are mailed or delivered. This is consistent with comment 
19(a)(1)(ii)-1, which provides that creditors may impose a fee any time 
after midnight following the third business day after the creditor 
delivers or mails the early disclosures in all cases, regardless of the 
method the creditor uses to provide the early disclosures. The Board 
does not intend to make substantive changes by conforming the 
presumption of receipt provisions under Sec. Sec.  226.19(a)(1)(ii) and 
226.19(a)(2)(ii).
---------------------------------------------------------------------------

    \40\ On the same day the July 2008 final rule was published, the 
Congress passed the MDIA. Under the MDIA, if the APR stated in the 
early disclosures changes in excess of a specified tolerance, the 
creditor must provide corrected disclosures that the consumer must 
receive no later than three business days before consummation. The 
MDIA provides that if the creditor mails the corrected disclosures, 
the consumer is considered to have received them three business days 
after they are mailed. These early disclosure rules are contained in 
TILA Section 128(b)(2)(E) (to be codified at 15 U.S.C. 
1638(b)(2)(E)). Section 226.19(a)(2)(ii) implements these rules.
---------------------------------------------------------------------------

    The Board also proposes to revise comment 19(a)(1)(ii)-1 to clarify 
that the three-business-day presumption of receipt applies in all 
cases, including where a creditor uses electronic mail or a courier to 
provide the early disclosures. Proposed comment 19(a)(1)(ii)-1 provides 
that creditors that use electronic mail or a courier other than the 
postal service may use the three-business-day presumption of receipt. 
This comment is consistent with existing comment 19(a)(2)(ii)-3 adopted 
through the MDIA Final Rule. (Comment 19(a)(2)(ii)-3 would be 
redesignated as comment 19(a)(2)(v)-1 and conforming edits would be 
made in connection with the proposed requirement that creditors provide 
final disclosures that the consumer must receive no later than three 
business days before consummation, as discussed below.)
    An additional change would be made to comment 19(a)(1)(ii)-1 under 
the proposed rule. Currently, comment 19(a)(1)(ii)-1 provides that if 
the creditor places the early disclosures in the mail, the creditor may 
impose a fee in all cases ``after midnight on the third business day 
following mailing of the disclosures.'' The Board recognizes that the 
phrase ``after midnight on the third business day'' may be construed to 
mean either that the creditor may impose a fee at the beginning of the 
third business day after the creditor receives the consumer's 
application, or at the beginning of the fourth business day after the 
creditor receives the consumer's application. Thus, the Board proposes 
to revise comment 19(a)(1)(ii)-1 to provide that the creditor may 
impose a fee after the consumer receives the early disclosures or, in 
all cases, after midnight following the third business day after 
mailing the early disclosures. For example, proposed comment 
19(a)(1)(ii)-1 provides that (assuming that there are no intervening 
legal public holidays) a creditor that receives the consumer's written 
application on Monday and mails the early mortgage loan disclosure on 
Tuesday may impose a fee on the consumer on Saturday.
19(a)(2)(ii) Three-Business-Day Waiting Period
    Under Sec.  226.19(a), as revised by the MDIA Final Rule, if 
changes to the APR disclosed for a closed-end transaction secured by a 
dwelling and subject to RESPA exceed a specified tolerance, creditors 
must provide corrected disclosures. The consumer must receive the 
corrected disclosures no later than three business days before 
consummation. The tolerance specified for closed-end ``regular 
transactions'' (those that do not involve multiple advances, irregular 
payment periods, or irregular payment amounts) is \1/8\ of 1 percentage 
point and for closed-end ``irregular transactions'' (those that involve 
multiple advances, irregular payment periods, or irregular payment 
amounts, such as an ARM with a discounted initial interest rate) is \1/
4\ of 1 percentage point. See Sec.  226.22(a) and footnote 46; comment 
17(c)(1)-10(iv).
    Currently, if an APR stated in early disclosures for a closed-end 
transaction not subject to Sec.  226.19(a) remains accurate but other 
terms that were not labeled as estimates change, the creditor must 
disclose those changed terms before consummation under Sec.  226.17(f). 
Creditors also must provide corrected disclosures if a variable-rate 
feature is added to a closed-end transaction under Sec.  226.17(f), 
whether or not the transaction is subject to Sec.  226.19(a). See 
comment 17(f)-2. In practice, most creditors provide ``final'' 
disclosures to a consumer on the day of consummation, whether or not 
the loan terms stated in the early disclosures have changed.
    Under the proposed rule, after providing early disclosures for a 
closed-end transaction secured by real property or a dwelling, 
creditors would provide a second set of disclosures in all cases, under 
Sec.  226.19(a)(2)(ii). The consumer would have to receive these final 
disclosures no later than three business days before consummation. 
Proposed Sec.  226.19(a)(2)(ii) is designed to address long-standing 
concerns that consumers may find out about different loan terms or 
increased settlement costs only at consummation. Members of the Board's 
Consumer Advisory Council and commenters on prior Board rulemakings 
have expressed concern about consumers not learning of changes to 
credit terms until consummation. Further, several participants in the 
Board's consumer testing stated that they had been surprised at closing 
by important changes in loan terms. For example, some participants said 
that they had been told at closing that a loan would have an adjustable 
rate even though previously they had been told they would receive a 
fixed-rate loan. Participants said that they closed despite unfavorable 
changes in loan terms because they lacked alternatives, especially in 
the case of a loan financing a home purchase. Some participants stated 
that they accepted changed terms because the loan originator advised 
them that they could easily obtain a refinance loan with better terms 
in the near future.
    Terms or costs may change after early disclosures are given for a 
variety of reasons, including that the consumer did not lock the 
interest rate at application or an appraisal report developed after 
early disclosures are provided shows a different property value than 
the creditor assumed when providing the early disclosure. Regardless of 
the reason for the changed terms, a consumer who receives notice

[[Page 43260]]

of changed loan terms at consummation that differ from those originally 
disclosed does not have a meaningful opportunity to make an informed 
credit decision.
    To address concerns about changes to loan terms, proposed Sec.  
226.19(a)(2)(ii) requires creditors to provide final disclosures that a 
consumer would have to receive no later than the third business day 
before consummation. Under proposed Sec.  226.38(a)(4), the early 
disclosures and final disclosures would contain total estimated 
settlement costs disclosed under RESPA and HUD's Regulation X, which 
implements RESPA. Regulation X permits final settlement charges to be 
disclosed at consummation; the consumer may request that final 
settlement charges be disclosed twenty-four hours in advance, however. 
24 CFR 3500.10(a) and (b). Thus, under RESPA, creditors, settlement 
agents, and settlement service providers have until the day of 
consummation to determine the amounts of the various settlement costs. 
Effective January 1, 2010, Regulation X provides that the sum of most 
lender-required third party settlement costs may vary no more than 10 
percent from the same costs disclosed on the good faith estimate (GFE) 
delivered earlier. Certain other changes, such as the lender's 
origination fee, cannot vary, unless the consumer did not lock the 
interest rate.
    The Board believes that proposed Sec.  226.19(a)(2) would not 
conflict with tolerance and timing rules under Regulation X--that is, 
creditors could comply with both Regulation Z and Regulation X. 
However, the Board's proposal would require creditors to finalize 
settlement costs earlier than RESPA does: At least three business days 
before consummation, and as much as a week before consummation if the 
creditor mails the disclosures to the consumer.\41\ The Board 
recognizes that requiring that loan terms and costs be finalized 
several days before consummation would require significant changes to 
current settlement practices. These changes would generate costs that 
creditors and third-party service providers would pass on to consumers. 
The Board solicits comment on the operational and other practical 
effects of requiring that consumers receive final TILA disclosures for 
closed-end loans secured by real property or a dwelling no later than 
three business days before consummation.
---------------------------------------------------------------------------

    \41\ Under existing and proposed Sec.  226.19(a)(2), a consumer 
is deemed to receive corrected disclosures three business days after 
a creditor mails them. Under existing and proposed Sec.  
226.19(a)(2), creditors may but need not rely on the presumption of 
receipt to determine when the three-business-day waiting period 
begins, whether creditors mail TILA disclosures using the postal 
service, use a courier other than the postal service, or provide 
disclosures electronically. Alternatively, creditors may rely on 
evidence of receipt. 74 FR at 23293; 73 FR 44522, 44593; July 30, 
2008.
---------------------------------------------------------------------------

    Proposed comment 19(a)(2)(ii)-1 provides that creditors must 
provide final disclosures even if the terms disclosed have not changed 
since the creditor provided the early disclosures. Proposed comment 
19(a)(2)(ii)-2 provides that disclosures made under Sec.  
226.19(a)(2)(ii) must contain each of the applicable disclosures 
required by Sec.  226.38.
    If escrows for taxes and insurance will be required, creditors may 
disclose periodic payments of taxes and insurance as estimates under 
Sec.  226.38(c). If the creditor includes escrowed amounts when 
calculating the total of payments under Sec.  226.38(e)(5)(i), then the 
total of payments also would be disclosed as estimated disclosures, as 
discussed in comment 38(e)(5)-1. Periodic payment disclosures that 
include escrowed amounts must be estimated disclosures because the 
creditor cannot know with certainty the amounts for property taxes and 
insurance after the first year of the loan. Proposed comment 
19(a)(2)(ii)-3 clarifies that other disclosures may not be estimated 
under proposed Sec.  226.19(a)(2)(ii). Finally, comment 19(a)(2)(ii)-4 
provides an example that illustrates when consummation may occur after 
the consumer receives the final disclosures.
19(a)(2)(iii) Additional Three-Business-Day Waiting Period
    The Board is proposing two alternative requirements for creditors 
to provide corrected disclosures after making the final disclosures 
required by Sec.  226.19(a)(2)(ii), to be designated as Sec.  
226.19(a)(2)(iii). Consumers would have to receive the corrected 
disclosures required by proposed Sec.  226.19(a)(2)(iii) no later than 
the third business day before consummation. Under both Alternative 1 
and Alternative 2, comment 19(a)(2)-2 would be revised to reflect that 
there is more than one three-business-day waiting period under Sec.  
226.19(a).
    Alternative 1. The first alternative would require that a creditor 
provide corrected disclosures if any terms stated in the final 
disclosures required by proposed Sec.  226.19(a)(2)(ii) change. This 
would ensure that consumers are aware of the final loan terms and costs 
at least three business days before consummation. The consumer would 
have to receive the corrected disclosures no later than the third 
business day before consummation.
    Under Alternative 1, proposed comment 19(a)(2)(iii)-1 clarifies 
that a disclosed APR is accurate for purposes of Sec.  
226.19(a)(2)(iii) if the disclosure is accurate under proposed Sec.  
226.19(a)(2)(iv). (Under proposed Sec.  226.19(a)(2)(iv), an APR 
disclosed under proposed Sec.  226.19(a)(2)(ii) or (iii) is considered 
accurate as provided by Sec.  226.22, except that in certain 
circumstances the APR is considered accurate if the APR decreases from 
the APR disclosed previously, as discussed below.) Proposed comment 
19(a)(2)(iii)-2 states that disclosures made under Sec.  
226.19(a)(2)(ii) must contain each of the disclosures required by Sec.  
226.38. Proposed comment 19(a)(2)(iii)-3 clarifies that creditors may 
rely on proposed comment 19(a)(2)(ii)-3 in determining which of the 
disclosures required by Sec.  226.19(a)(2)(iii) may be estimated 
disclosures. Proposed comment 19(a)(2)(iii)-4 provides an example that 
shows when consummation may occur after the consumer receives corrected 
disclosures. Existing comments 19(a)(2)(ii)-1 through -4 would be 
removed under Alternative 1.
    Alternative 2. It is not clear that it is always in a consumer's 
interest to delay consummation until three business days after the 
consumer receives corrected disclosures if any terms or costs change. 
Thus, the Board proposes an alternative Sec.  226.19(a)(2)(iii) that 
incorporates the existing tolerance for APR changes under Sec.  226.22 
and incorporates an additional tolerance discussed under Sec.  
226.19(a)(iv). If the APR changes beyond the specified tolerances, 
creditors would be required to provide corrected disclosures that the 
consumer must receive no later than three business days before 
consummation.
    Under the second alternative, after the creditor provides the final 
disclosures, only APR changes beyond the specified tolerances or the 
addition of a variable-rate feature to the loan would trigger a 
requirement that consumers receive corrected disclosures no later than 
three business days before consummation. In other cases, the creditor 
would have to disclose changed terms no later than the day of 
consummation, under existing Sec.  226.17(f). Under this alternative, a 
consumer would be alerted to significant increases in loan costs and 
would have three business days to investigate the reason for the change 
or to consider other options. Smaller APR increases or other changes to 
loan terms would not trigger a three-day delay in consummation, 
however. This alternative is designed to prevent

[[Page 43261]]

relatively minor changes in loan terms from repeatedly delaying 
consummation.
    Under Alternative 2, comment 19(a)(2)(ii)-1 would be redesignated 
as comment 19(a)(2)(iii)-1 and revised to clarify that creditors must 
provide corrected disclosures if the APR disclosed pursuant to Sec.  
226.19(a)(ii) becomes inaccurate under proposed Sec.  226.19(a)(2)(iv), 
which incorporates existing tolerances under Sec.  226.22, or an 
adjustable-rate feature is added. Comment 19(a)(2)(ii)-2 would be 
redesignated as comment 19(a)(2)(iii)-2 and revised to: (1) Reflect 
that corrected disclosures must comply with the format requirements of 
proposed Sec.  226.37 as well as those of Sec.  226.17(a); (2) reflect 
that a different APR will almost always result in changes in ``interest 
and settlement charges'' and the ``payment summary'' (currently 
designated as the finance charge and payment schedule, respectively); 
(3) clarify that the addition of an adjustable-rate feature triggers 
the requirement to provide corrected disclosures, by moving a cross-
reference to comment 17(f)-2; and (4) remove guidance on the timing and 
conditions of new disclosures from guidance on disclosure content, for 
clarity. Proposed comment 19(a)(2)(iii)-3 clarifies that creditors may 
rely on proposed comment 19(a)(2)(ii)-3 in determining which of the 
disclosures required by Sec.  226.19(a)(2)(iii) creditors may estimate. 
Under the proposed rule, comment 19(a)(2)(iii)-4 would be revised to 
update a cross-reference consistent with the proposed rule and reflect 
that consumers must receive disclosures under Sec.  226.19(a)(2)(ii) 
whether or not the disclosures correct the early disclosures.
    The Board solicits comment on whether, under Alternative 2, changes 
other than APR changes in excess of the specified tolerance or the 
addition of an adjustable-rate feature after the creditor makes the new 
disclosures should trigger an additional three-business-day waiting 
period. For example, should the addition of a prepayment penalty, 
negative amortization, interest-only, or balloon payment feature 
trigger a waiting period requirement?
    Proposed Sec.  226.19(a)(2)(iii) (under Alternative 2) would 
require corrected disclosures and a new three-business-day waiting 
period if the previously disclosed APR has become inaccurate. Under 
current rules, a disclosed APR is considered accurate and does not 
trigger corrected disclosures if it results from a disclosed finance 
charge that is greater than the finance charge required to be disclosed 
(i.e., the finance charge is ``overstated''). See Sec. Sec.  
226.22(a)(4) and 226.18(d)(1)(ii). In some transactions, the finance 
charge at consummation might be lower than the amount previously 
disclosed, for example, if the parties agree to a smaller principal 
loan amount after early disclosures were made. In the same transaction, 
the APR might increase because of an increase in the interest rate 
after the early disclosures were made. In this transaction, at 
consummation the previously disclosed finance charge would be 
overstated and the previously disclosed APR understated. In such a 
case, the question has been raised as to whether the previously 
disclosed APR, which was derived from the overstated finance charge, 
should be deemed accurate even though it is understated at 
consummation. The Board believes the APR in this case is not accurate. 
The Board believes an APR ``results from'' an overstated finance charge 
only if the APR also is overstated. The Board solicits comment on 
whether, should Alternative 2 be adopted, the Board also should adopt 
commentary under Sec.  226.22(a)(4) to clarify this interpretation.
    Proposed Sec.  226.19(a)(2)(iv) contains APR tolerances, and 
proposed Sec.  226.38(e)(5)(ii) contains tolerances for interest and 
settlement charges (as the finance charge would be referred to under 
the proposed rule), for transactions secured by real property or a 
dwelling. The Board solicits comment on whether, under Sec.  
226.38(e)(5)(ii), tolerances would be appropriate for numerical 
disclosures other than the APR and interest and settlement charges. For 
example, would dollar tolerances for overstatements of periodic payment 
disclosures required by Sec.  226.38(c) be appropriate? What standards 
should be used to prevent overstated disclosures from undermining the 
integrity of the early disclosures and their usefulness as a shopping 
tool?
19(a)(2)(iv) Annual Percentage Rate Accuracy
    Under proposed Sec.  226.19(a)(2)(iv), an APR disclosed under 
proposed Sec.  226.19(a)(2)(ii) or (iii) is considered accurate as 
provided by Sec.  226.22, except that the APR also is considered 
accurate if the APR decreases due to a discount (1) the creditor gives 
the consumer to induce periodic payments by automated debit from a 
consumer's deposit account or (2) the title insurer gives the consumer 
on owner's title insurance. Thus, such APR changes would not trigger a 
new three-business-day waiting period. Comment 19(a)(2)(iv)-1 clarifies 
that if a change occurs that does not render the APR inaccurate under 
Sec.  226.19(a)(iv), the creditor must disclose the changed terms 
before consummation, consistent with Sec.  226.17(f). The Board 
solicits comment on whether a disclosed APR that is higher than the 
actual APR at consummation should be considered accurate in other 
circumstances.
19(a)(2)(v) Timing of Receipt
    As adopted by the MDIA Final Rule, Sec.  226.19(a)(2)(ii) provides 
that consumers must receive corrected disclosures, if required, no 
later than three business days before consummation. Further, Sec.  
226.19(a)(2)(ii) provides that if the corrected disclosures are mailed 
to the consumer or delivered to the consumer by means other than 
delivery in person, the consumer is deemed to have received the 
disclosures three business days after they are mailed or delivered. The 
proposed rule applies this presumption for purposes of both the waiting 
period under proposed Sec.  226.19(a)(2)(ii) and the waiting period 
under proposed Sec.  226.19(a)(2)(iii). The presumption would be moved 
to Sec.  226.19(a)(2)(v) under the proposed rule.
    Proposed comment 19(a)(2)(v)-1 states that whether the creditor 
provides disclosures by delivery, postal service, electronic mail, or 
courier other than the postal service, consumers are deemed to receive 
the disclosures three business days after the creditor so provides 
them, for purposes of determining when a three-business-day waiting 
period required by Sec.  226.19(a)(2)(ii) or (iii) begins. Further, 
proposed comment 19(a)(2)(v)-1 clarifies that creditors may rely on 
evidence of earlier receipt, regardless of how the creditor provides 
disclosures to the consumer. This commentary is consistent with the 
Board's discussion of delivery and mailing under the MDIA Final Rule 
and the 2008 HOEPA Final Rule. See 74 FR at 23292-23293; 73 FR at 
44593.
19(a)(3) Consumer's Waiver of Waiting Period
    Section 226.19(a)(3) and comment 19(a)(3)-1 would be revised to 
reflect that under the proposed rule the disclosures required for 
transactions secured by real property or a dwelling are contained in 
Sec.  226.38 rather than in Sec.  226.18. Section 226.19(a)(3) also 
would be revised to reflect that there is more than one three-business-
day waiting period under proposed Sec.  226.19(a)(2); comment 19(a)(3)-
1 would be revised to clarify that a separate waiver is required for 
each waiting period to be waived.

[[Page 43262]]

    Section 226.19(a)(2)(ii) currently requires creditors to provide 
corrected disclosures to a consumer if changes to the disclosed APR 
exceed the specified tolerance (APR correction disclosures). The 
consumer must receive APR correction disclosures no later than three 
business days before consummation. Comment 19(a)(3)-2 provides examples 
that show whether or not the three-business-day waiting period would 
need to be waived to allow consummation to occur during the seven-
business-day waiting period required by Sec.  226.19(a)(2)(i), in the 
event of a bona fide personal financial emergency. This example would 
be removed because proposed Sec.  226.19(a)(2)(ii) provides that, after 
the creditor provides the early disclosures, consumers must receive 
final disclosures no later than three business days before consummation 
in all cases. Comment 19(a)(3)-3 provides examples illustrating whether 
or not, after the seven-business-day waiting period required by Sec.  
226.19(a)(2)(i), the three-business-day waiting period triggered by APR 
correction disclosures would need to be waived to allow consummation to 
occur, in the event of a bona fide personal financial emergency. 
Comment 19(a)(3)-3 would be revised to reflect that in all cases 
consumers would have to receive final disclosures after the creditor 
provides the early disclosures under the proposed rule and that under 
proposed Sec.  226.19(a)(2)(iv) a disclosed APR that is overstated is 
considered accurate in specified circumstances. Comment 19(a)(3)-3 
would be redesignated as comment 19(a)(3)-2 under the proposed rule.
19(a)(4) Notice
    Section 226.19(a)(4) currently requires creditors to disclose that 
a consumer need not enter into a loan agreement because the consumer 
has received disclosures or signed a loan application. This requirement 
would be moved to Sec.  226.38(f)(1) under the proposed rule. Proposed 
Sec.  226.38 contains all content requirements for disclosures for 
transactions secured by real property or a dwelling.
19(a)(5) Timeshare Transactions
    Section 226.19(a)(5) excludes transactions secured by a consumer's 
interest in a timeshare plan described in 11 U.S.C. 101(53(D)) 
(timeshare transactions) from Sec.  226.19(a)(1) through (a)(4), which 
address the following: (1) The period within which the creditor must 
provide the early disclosures and the fact that creditors and other 
persons cannot collect fees from the consumer before the consumer 
receives the early disclosures; (2) waiting periods after the creditor 
provides the early disclosures and after the consumer receives 
corrected disclosures (if any) and before consummation; (3) waiver of 
waiting periods; and (4) the requirement to disclose a statement that 
the consumer is not required to consummate a transaction merely because 
the consumer has received disclosures or signed a loan application.
    Section 226.19(a)(5)(ii) contains timing requirements for early 
disclosures, and Sec.  226.19(a)(5)(iii) contains timing requirements 
for corrected disclosures, for timeshare transactions. Waiting periods 
are not required for timeshare transactions, so Sec.  226.19(a)(5) does 
not contain requirements similar to the requirements in Sec.  
226.19(a)(3) for waiving waiting periods for non-timeshare 
transactions. Section 226.19(a)(5) also does not contain a requirement 
similar to that in Sec.  226.19(a)(4) that disclosures contain a 
statement that a consumer need not consummate a transaction simply 
because the consumer receives disclosures or signs a loan application. 
Section 226.19(a)(4) would be removed under the proposed rule, and a 
substantially similar requirement would apply under proposed Sec.  
226.38(f)(1). Proposed Sec.  226.38(f)(1) requires creditors to 
disclose a statement that a consumer is not obligated to consummate a 
loan and that the consumer's signature only confirms receipt of a 
disclosure statement.
    Proposed Sec.  226.38(f)(1) applies to timeshare transactions. The 
MDIA exempts timeshare transactions from the requirements of TILA 
Section 128(b)(2)(C), which existing Sec.  226.19(a)(4) implements. 
However, the Board does not believe that the Congress intended to 
exempt timeshare transactions from any requirement to disclose to a 
consumer that the consumer is not obligated to consummate a loan. Thus, 
the proposed rule does not exempt timeshare transactions from Sec.  
226.38(f)(1).
    Section 226.19(a)(5) would be redesignated as Sec.  226.19(a)(4) 
and cross-references adjusted accordingly under the proposed rule 
because Sec.  226.19(a)(4) would be removed, as discussed above. 
Comment 19(a)(5)(ii)-1 would be revised to reflect that the coverage of 
Sec.  226.19 has been expanded to include transactions not subject to 
RESPA, as discussed above. Comment 19(a)(5)(iii)-1 would be revised to 
clarify that timeshare transactions are subject to the general 
requirement to disclose changed terms under Sec.  226.17(f). Further, 
comment 19(a)(5)(iii)-1 would be revised to reflect that cross-
referenced commentary on variable- or adjustable- rate transactions 
would be incorporated into proposed Sec.  226.17(c)(1)(iii). Finally, 
commentary on Sec.  226.19(a)(5)(ii) and (iii) would be redesignated as 
commentary on Sec.  226.19(a)(4)(ii) and (iii), respectively.
19(b) Adjustable-Rate Loan Program Disclosures
    Section 226.19(b) currently requires creditors to provide detailed 
disclosures about adjustable-rate loan programs and a CHARM booklet if 
a consumer expresses an interest in ARMs. Section 226.19(b) applies to 
closed-end transactions secured by a consumer's principal dwelling with 
a term greater than one year. Creditors must provide these disclosures 
at the time an application form is provided or before the consumer pays 
a non-refundable fee, whichever is earlier. Creditors need not provide 
these disclosures, however, if a loan is secured by a dwelling other 
than a principal dwelling (such as a second home) or real property that 
is not a dwelling (such as vacant land) or with a term of one year or 
less. For such transactions, creditors instead must provide the less 
detailed variable-rate disclosures required by Sec.  226.18(f)(1) 
within three business days after receiving the consumer's application, 
as discussed above.
    The Board proposes to require creditors to provide ARM loan program 
disclosures, and additional disclosures discussed below, at the time an 
application form is provided, for all closed-end transactions secured 
by real property or a dwelling, regardless of the length of the loan's 
term. The ARM disclosures and the new disclosures are intended to alert 
consumers to certain risks before they apply for a loan. The Board 
believes that consumers should receive this information, even where the 
loan would be secured by a second home or unimproved real property, and 
where the loan term is one year or less. In these circumstances, the 
transaction likely involves a significant asset and consumers should 
receive information about risks, so that they can decide whether the 
program or loan feature is appropriate. The Board solicits comment on 
whether loan program disclosures should be given at the time an 
application form is provided to a consumer or before the consumer pays 
a non-refundable fee, whichever is earlier, for transactions other than 
ARMs.
    The Board proposes to require creditors to provide the following 
disclosures at the time an application is provided:

[[Page 43263]]

     The ARM loan program disclosure, for each program in which 
the consumer expresses an interest (proposed Sec.  226.19(b));
     The ``Key Questions about Risk'' document published by the 
Board (proposed Sec.  226.19(c)); and
     The ``Fixed vs. Adjustable-Rate Mortgages'' document 
published by the Board (proposed Sec.  226.19(c)).
    Creditors no longer would be required to provide the CHARM booklet, 
as discussed under Sec.  226.19(c).
    Current content of ARM loan program disclosures. For adjustable-
rate mortgage transactions secured by a consumer's principal dwelling 
with a term greater than one year, Sec.  226.19(b)(2) requires the 
creditor to provide disclosures to consumers at the time an application 
form is provided or before the consumer pays a nonrefundable fee, 
whichever is earlier. Section 226.19(b)(2) requires creditors to 
provide the following disclosures, as applicable, for each adjustable-
rate loan program in which the consumer expresses an interest: (1) The 
fact that interest rate, payment, or term of the loan can change, (2) 
the index or formula used in making adjustments, and a source of 
information about the index or formula, (3) an explanation of how the 
interest rate and payment will be determined, including an explanation 
of how the index is adjusted, such as by the addition of a margin, (4) 
a statement that the consumer should ask about the current margin value 
and current interest rate, (5) the fact that the interest rate will be 
discounted, and a statement that the consumer should ask about the 
amount of the interest rate discount, (6) the frequency of interest 
rate and payment changes, (7) any rules relating to changes in the 
index, interest rate, payment amount, and outstanding loan balance, (8) 
pursuant to TILA Section 128(a)(14), 15 U.S.C. 1638(a)(14), either (a) 
an historical example based on a $10,000 loan amount that illustrates 
how interest rate changes implemented according to the terms of the 
loan program would have affected payments and the loan balance over the 
past fifteen years or (b) the maximum interest rate and payment for a 
$10,000 loan originated at an initial interest rate in effect as of an 
identified month and year and a statement that the periodic payments 
may increase or decrease substantially, (9) an explanation of how the 
consumer may calculate the payments for the loan, (10) the fact that 
the loan program contains a demand feature, (11) the type of 
information that will be provided in notices of adjustments and the 
timing of such notices, and (12) a statement that the disclosure forms 
are available for the creditor's other variable-rate loan programs.
    Amendments to maximum rate and historical example disclosures. TILA 
Section 128(a)(14), 15 U.S.C. 1638(a)(14), requires creditors to 
disclose at application (a) a statement that the periodic payments may 
increase or decrease substantially and the maximum interest rate and 
payment for a $10,000 loan originated at a recent interest rate, 
assuming the maximum periodic increases in rates and payments under the 
program or (b) an historical example illustrating the effects of 
interest rate changes implemented according to the loan program. 
Section 226.19(b)(2)(viii) implements TILA Section 128(a)(14). For the 
reasons discussed below, the Board proposes not to require creditors to 
provide either the historical example or the maximum interest rate and 
payment based on a $10,000 loan.
    The Board proposes to eliminate the disclosure of the historical 
example or the maximum interest rate and payment based on a $10,000 
loan pursuant to the Board's exception and exemption authorities in 
TILA Section 105. Section 105(a) authorizes the Board to make 
exceptions to TILA to effectuate the statute's purposes, which include 
facilitating consumers' ability to compare credit terms and helping 
consumers avoid the uniformed use of credit. See 15 U.S.C. 1601(a), 
1604(a). Section 105(f) authorizes the Board to exempt any class of 
transactions from coverage under any part of TILA if the Board 
determines that coverage under that part does not provide a meaningful 
benefit to consumers in the form of useful information or protection. 
See 15 U.S.C. 1604(f)(1). The Board must make this determination in 
light of specific factors. See 15 U.S.C. 1604(f)(2). These factors are 
(1) the amount of the loan and whether the disclosure provides a 
benefit to consumers who are parties to the transaction involving a 
loan of such amount; (2) the extent to which the requirement 
complicates, hinders, or makes more expensive the credit process; (3) 
the status of the borrower, including any related financial 
arrangements of the borrower, the financial sophistication of the 
borrower relative to the type of transaction, and the importance to the 
borrower of the credit, related supporting property, and coverage under 
TILA; (4) whether the loan is secured by the principal residence of the 
borrower; and (5) whether the exemption would undermine the goal of 
consumer protection.
    The Board has considered each of these factors carefully and based 
on that review believes that the proposed exemption is appropriate. 
Consumer testing conducted by the Board showed that examples based on 
hypothetical loan amounts and interest rates may be confusing to 
consumers and may not provide meaningful benefit. Several participants 
thought the historical example showed payments and rates that actually 
would apply if the participant chose the loan program described in the 
disclosure. Some participants mistakenly thought that the disclosures 
described an ARM with a fifteen-year term because the disclosure showed 
fifteen years' worth of index changes under an ARM program. Some 
consumer testing participants said that disclosures based on a 
hypothetical $10,000 loan amount are not useful to them; these 
consumers said they wanted to see information about rates and terms 
that would actually apply in the context of their own loan amount.
    The Board's exception and exemption authority under Sections 105(a) 
and (f) does not apply in the case of a mortgage referred to in Section 
103(aa), which are high-cost mortgages generally referred to as ``HOEPA 
loans.'' The Board does not believe that this limitation restricts its 
ability to apply the proposed changes to all mortgage loans, including 
HOEPA loans. This limitation on the Board's general exception and 
exemption authority is a necessary corollary to the decision of the 
Congress, as reflected in TILA Section 129(l)(1), to grant the Board 
more limited authority to exempt HOEPA loans from the prohibitions 
applicable only to HOEPA loans in Section 129(c) through (i) of TILA. 
See 15 U.S.C. 1639(l)(1). Here, the Board is not proposing any 
exemptions from the HOEPA prohibitions. This limitation does raise a 
question as to whether the Board could use its exception and exemption 
authority under Sections 105(a) and (f) to except or exempt HOEPA 
loans, but not other types of mortgage loans, from other, generally 
applicable TILA provisions. That question, however, is not implicated 
by this proposal.
    Here, the Board is proposing to apply its general exception and 
exemption authority to eliminate information from the ARM loan program 
disclosure that consumers find confusing or not useful, for all loans 
secured by real property or a dwelling, including both HOEPA and non-
HOEPA loans, in order to fulfill the statute's purpose of facilitating 
consumers' ability to compare credit terms and helping consumers avoid 
the uninformed use of credit. It would not be consistent with the 
statute or with

[[Page 43264]]

Congressional intent to interpret the Board's authority under Sections 
105(a) and (f) in such a way that the proposed revisions could apply 
only to mortgage loans that are not subject to HOEPA. Reading the 
statute in a way that would deprive HOEPA borrowers of improved ARM 
loan program disclosures is not a reasonable construction of the 
statute and contravenes the Congress's goal of ensuring ``that enhanced 
protections are provided to consumers who are most vulnerable to 
abuse.'' \42\
---------------------------------------------------------------------------

    \42\ H.R. Conf. Rept. 103-652 at 159 (Aug. 2, 1994).
---------------------------------------------------------------------------

    The Board notes that proposed Sec.  226.38(c) would require 
creditors to provide consumers with the maximum possible interest rate 
and payment within three business days after the consumer applies for 
an ARM or a loan in which payments may vary. See discussion of Sec.  
226.38(c). Consumer testing indicated that consumers find this 
information very useful when provided in the context of an actual loan 
offer, in contrast to the information for a hypothetical loan amount in 
relation to an historical interest rate or the interest rate or for a 
recently originated loan, as required by TILA Section 128(a)(14).
    In addition to removing Sec.  226.19(b)(2)(viii), the proposed rule 
would remove the related requirement under Sec.  226.19(b)(2)(ix) that 
creditors explain how a consumer may calculate payments for the 
consumer's loan amount based on either the initial interest rate used 
to calculate the maximum interest rate and payment disclosure or the 
most recent payment shown in the historical example. The proposed rule 
also would eliminate commentary on Sec.  226.19(b)(2)(viii) and (ix). 
Further, the proposed rule would eliminate comment 19(b)(2)-2(i)(I), 
which provides that if a loan feature must be taken into account in 
preparing the historical example of payment and loan balance movements 
required by Sec.  226.19(b)(2)(viii), variable-rate loans that differ 
as to that feature constitute separate loan programs under Sec.  
226.19(b)(2).
    Amendments to other regulations and comments. Comment 19(b)-1 
currently provides that in an assumption of an adjustable-rate mortgage 
transaction secured by the consumer's principal dwelling with a term 
greater than one year, disclosures need not be provided under 
Sec. Sec.  226.18(f)(2)(ii) or 226.19(b). Comment 19(b)-2(iv) currently 
provides that in cases where an open-end credit account will convert to 
a closed-end transaction subject to Sec.  226.19(b), the creditor must 
provide the disclosures required by Sec.  226.19(b). The proposed rule 
would integrate the foregoing commentary into Sec.  226.19(b). Proposed 
Sec.  226.19(b) would apply to all closed-end mortgage transactions 
secured by real property or a dwelling regardless of loan security or 
term, however, as discussed above.
    The proposed rule would not require program disclosures to contain 
an explanation of how payments will be determined, a disclosure that 
creditors must make under existing Sec.  226.19(b)(2)(iii). In general, 
consumer testing participants preferred to receive specific information 
about the amount of the payments they would have to make, which 
generally is not available at the time the consumer submits a loan 
application. Most participants found model loan program disclosures 
based on current requirements to be confusing because they contained 
complex terminology. Participants responded much more positively to 
revised model disclosures, which did not discuss technical issues about 
how payments are determined. If a creditor chooses to include an 
explanation of how payments will be determined, the explanation must be 
disclosed apart from the segregated disclosures that proposed Sec.  
226.19(b) requires, as a general rule under proposed Sec.  
226.37(a)(2), discussed below.
    Footnote 45a to Sec.  226.19(b) currently states that creditors may 
substitute information provided in accordance with variable-rate 
regulations of other federal agencies for the disclosures required by 
Sec.  226.19(b). The proposed rule would remove and reserve that 
footnote and comment 19(b)-4. The footnote was designed to account for 
the fact that disclosure rules for variable-rate loans issued by HUD, 
the Federal Home Loan Bank Board, and the Office of the Comptroller of 
the Currency (OCC) were in effect when the Board adopted Sec.  
226.19(b). No comprehensive disclosure requirements for variable-rate 
loans currently are in effect under the rules of HUD, the OCC, or the 
Office of Thrift Supervision (OTS), the successor agency to the FHLBB. 
No such requirements are in effect under the rules of the Federal 
Deposit Insurance Corporation (FDIC) or the National Credit Union 
Administration (NCUA) either. Moreover, HUD and the OTS have 
incorporated the disclosure requirements for variable-rate loans under 
TILA and Regulation Z into their own regulations by cross-
reference.\43\ Accordingly, footnote 45a no longer appears to be 
necessary. The Board requests comment, however, on whether there are 
potential inconsistencies between any ARM loan disclosures required by 
other federal financial institution supervisory agencies that 
Regulation Z should specifically address.
---------------------------------------------------------------------------

    \43\ See 24 CFR 203.49(g) (HUD); 12 CFR 560.210 (OTS). Some of 
those agencies have issued regulations that apply to adjustable rate 
mortgages. See, e.g., 12 CFR 34.22 (OCC) (requiring that an index 
specified in a national bank's loan documents for an ARM subject to 
Sec.  226.19(b) be readily available to and verifiable by a borrower 
and beyond the bank's control). Those requirements do not establish 
comprehensive disclosure requirements, however.
---------------------------------------------------------------------------

    Comment 19(b)-5 currently states that creditors must provide 
disclosures under Sec.  226.19(b) for certain renewable balloon-
payment, preferred-rate, and price-level adjusted mortgages with a 
fixed interest rate, if they are secured by a dwelling and have a term 
greater than one year. However, such mortgages lack most of the 
adjustable interest rate and payment features required to be disclosed 
under proposed Sec.  226.19(b)(1). For example, the frequency of rate 
and payment changes for a preferred-rate loan with a fixed interest 
rate likely cannot be known because the loss of the preferred rate is 
based on factors other than a formula or a change in the value of an 
index. Accordingly, under the proposed rule creditors would not be 
required to provide ARM loan program disclosures under Sec.  226.19(b) 
for such mortgages. Creditors would be required to provide ARM loan 
program disclosures for such mortgages if their interest rate is 
adjustable, however. Cross-references in comment 19(b)-5 would be 
updated and the comment would be redesignated as comment 19(b)-3 under 
the proposed rule.
    Existing comment 19(b)(2)-2(i) provides examples of particular loan 
features that distinguish separate loan programs. That commentary would 
be redesignated as comment 19(b)-5(i) but generally would be unchanged 
under the proposal, with one exception. Differences among rules 
relating to loan balance changes would be removed as an example of a 
particular loan feature that distinguishes separate loan programs. 
However, differences in the possibility of negative amortization would 
continue to distinguish separate loan programs, as discussed above. 
Also, existing comment 19(b)(2)(vii)-2(i) on disclosing a negative 
amortization feature would be redesignated as comment 19(b)-5 under the 
proposal.
    The requirement to provide loan program disclosures for each loan 
program in which a consumer expresses an interest generally would 
remain unchanged. However, comment 19(b)(2)-4 would be revised to state 
that a creditor ``must describe''--rather than

[[Page 43265]]

``must fully describe''--an ARM loan program. The proposal would reduce 
some of the material that creditors must disclose about ARM loan 
programs to highlight information that is most important to consumers, 
as discussed above.
    Use of term ``Adjustable-Rate Mortgage'' or ``ARM.'' Proposed Sec.  
226.19(b) requires the creditor to disclose the heading ``Adjustable-
Rate Mortgage'' or ``ARM.'' Participants in the Board's consumer 
testing showed greater familiarity with the term ``adjustable-rate 
mortgage'' than with ``variable-rate mortgage.'' Format requirements in 
proposed Sec.  226.19(b)(4)(iii) state that the statement must be more 
conspicuous than, and must precede, the other disclosures required by 
Sec.  226.19(b) and must be located outside of the tables required by 
proposed Sec.  226.19(b)(4)(iv). Finally, proposed Sec.  
226.19(b)(4)(iii) states that creditors may make the ``Adjustable-Rate 
Mortgage'' or ``ARM'' disclosure in a heading that states the name of 
the creditor and the name of the loan program, such as ``ABC Bank 3/1 
Adjustable Rate Mortgage.''
19(b)(1) Interest Rate and Payment Disclosures
    Proposed Sec.  226.19(b)(1) requires the creditor to disclose the 
following information, as applicable, grouped together under the 
heading ``Interest Rate and Payment,'' using that term: (1) The 
introductory period, (2) the frequency of the rate and payment change, 
(3) the index, (4) the limit on rate changes, (5) the conversion 
feature, and (6) the preferred rate.
    Introductory period. Proposed Sec.  226.19(b)(1)(i) requires the 
creditor to disclose the period during which the interest rate or 
payment remains fixed and a statement that the interest rate may vary 
or the payment may increase after that period. This disclosure is 
similar to that required under existing Sec.  226.19(b)(2)(i). Proposed 
Sec.  226.19(b)(1)(i) also requires the creditor to provide an 
explanation of the effect on the interest rate of having an initial 
interest rate that is not determined using the index or formula that 
applies for interest rate adjustments, that is, of having a discounted 
or premium interest rate. This disclosure requirement is similar to 
that required under existing Sec.  226.19(b)(2)(v). However, the 
proposed rule would eliminate the requirement that ARM loan program 
disclosures state that the consumer should ask about the amount of the 
interest rate discount.
    Frequency of rate and payment change. Proposed Sec.  
226.19(b)(1)(ii) requires the creditor to disclose the frequency of 
interest rate and payment changes, as currently is required under Sec.  
226.19(b)(2)(vi).
    Index. Proposed Sec.  226.19(b)(1)(iii) requires the creditor to 
disclose the index or formula used in making adjustments and a source 
of information about the index or formula. Proposed Sec.  
226.19(b)(1)(iii) also requires the creditor to provide an explanation 
of how the interest rate will be determined, including an explanation 
of how the index is adjusted, such as by the addition of a margin. 
Those requirements are contained in existing Sec.  226.19(b)(2)(ii) and 
(iii). However, the proposed rule eliminates Sec.  226.19(b)(2)(iv), 
which requires the creditor to disclose that the consumer should ask 
about the current margin value and current interest rate.
    Limit on rate changes. Currently, requirements for disclosing 
interest rate or payment limitations and carryover are contained in 
existing Sec.  226.19(b)(2)(vii). The proposed rule would retain these 
requirements, under proposed Sec.  226.19(b)(1)(iv). (Existing Sec.  
226.19(b)(2)(vii) also contains a requirement to disclose negative 
amortization. The proposed rule would retain that requirement as 
proposed Sec.  226.19(b)(2)(ii)(B), as discussed below.)
    Conversion feature. Existing comment 19(b)(2)(vii)-3 provides that 
if a loan program permits consumers to convert a variable-rate loan to 
a fixed-rate loan, the creditor must disclose that the fixed interest 
rate after conversion may be higher than the adjustable interest rate 
before conversion. Comment 19(b)(2)(vii)-3 further provides that the 
creditor must disclose any limitations on the period during which the 
loan may be converted, a statement that conversion fees may be charged, 
and any interest rate and payment limitations that apply if the 
consumer exercises the conversion option. The proposed rule would 
integrate this commentary into proposed Sec.  226.19(b)(1)(v).
    Preferred rate. Currently, if the variable-rate mortgage 
transaction is a preferred-rate loan, the creditor must disclose any 
event that would allow the creditor to increase the interest rate, for 
example, upon the termination of the consumer's employment with the 
creditor, whether voluntary or involuntary. See comment 19(b)(2)(vii)-
4. The creditor also must disclose that fees may be charged when the 
preferred rate no longer is in effect, if applicable. The Board 
proposes to retain these requirements in proposed Sec.  
226.19(b)(1)(vi).
19(b)(2) Key Questions About Risk
    Currently, TILA Section 128(a)(14), 15 U.S.C. 1638(a)(14), and 
Sec.  226.19(b)(2), require the creditor to disclose only certain 
information about certain adjustable-rate mortgage features early in 
the mortgage application process. The Board believes, however, that the 
consumer should be aware early in the process of other risky features, 
in addition to adjustable-rate features. For this reason, the Board 
proposes to require ``Key Question'' disclosures several times during 
the process to allow consumers to become aware of and track potentially 
risky features of their loan. Consumer testing and document design 
principles suggest that keeping language and design elements consistent 
between forms improves consumers' ability to identify and track any 
changes in the information being disclosed. As discussed more fully 
below, proposed Sec.  226.19(c)(1) would require the creditor to 
provide a Board publication entitled ``Key Questions to Ask about Your 
Mortgage'' at the time an application form is provided to the consumer 
or before the consumer pays a non-refundable fee, whichever is earlier. 
The content of this disclosure would be published by the Board and 
would address important terms related to any type of mortgage, whether 
fixed-rate or adjustable-rate. At the same time, if the consumer 
expresses an interest in an ARM loan program, proposed Sec.  
226.19(b)(2) would require the creditor to disclose the ``Key Questions 
about Risk'' as part of the ARM loan program disclosure. These ``Key 
Questions'' would be tailored to the specific ARM loan program in which 
the consumer has expressed an interest. Subsequently, within three days 
of the creditor receiving the consumer's application for a specific 
loan program, proposed Sec.  226.38(d) would require the creditor to 
make a similar disclosure of ``Key Questions about Risk'' in the 
transaction-specific TILA disclosure. The list of the ``Key Questions 
about Risk'' for the transaction-specific TILA disclosure required 
under proposed Sec.  226.38(d) would be the same as that required for 
the ARM loan program disclosure under proposed Sec.  226.19(b)(2), but 
the information in the TILA disclosure would be specific to the loan 
program for which the consumer applied and would apply to fixed-rate or 
adjustable-rate loan programs. The Board believes that consistently 
using the ``Key Questions'' terminology would enhance consumers' 
ability to identify, review, and understand the disclosed terms across 
all disclosures, and,

[[Page 43266]]

therefore, avoid the uninformed use of credit.
    Key questions about risk. As discussed above, current Sec.  
226.19(b)(2) requires the creditor to disclose over 12 loan features. 
Consumer testing showed that the current format for these disclosures 
was very difficult for participants to understand. In addition, because 
the content was so general, participants felt the current disclosure 
would not help them shop for a mortgage. Therefore, the Board proposes 
to replace existing Sec.  226.19(b)(2) with a new streamlined ARM loan 
program disclosure that would contain key information specific to that 
loan program. The proposed rule would require creditors to disclose 
certain information grouped together under the heading ``Key Questions 
about Risk,'' using that term, to draw the consumer's attention to 
information about the potential adverse impact that certain loan 
features could have on the consumer's ability to repay the loan. 
Proposed Sec.  226.19(b)(2)(i) requires the creditor to always disclose 
information about the following three terms: (1) Rate increases, (2) 
payment increases, and (3) prepayment penalties. Proposed Sec.  
226.19(b)(2)(ii) would require the creditor to disclose information 
about the following six terms, but only if they are applicable to the 
loan program: (1) Interest-only payments, (2) negative amortization, 
(3) balloon payment, (4) demand feature, (5) no-documentation or low-
documentation loans, and (6) shared-equity or shared-appreciation. The 
``Key Questions about Risk'' disclosure would be subject to special 
format requirements, including a tabular format and a question and 
answer format, as described under proposed Sec.  226.19(b)(4). The 
Board believes it is critical that consumers be alerted to certain risk 
factors before they have applied for an ARM, so that they can decide 
whether they want a loan with those terms. The Board solicits comment 
on whether there are other risk factors that loan program disclosures 
or publications should identify.
    Required disclosures. As noted above, proposed Sec.  
226.19(b)(2)(i) requires the creditor to disclose information about the 
following three terms: (1) Rate increases, (2) payment increases, and 
(3) prepayment penalties. The Board believes that these three factors 
should always be disclosed. Rate and payment increases pose the most 
direct risk of payment shock. In addition, consumer testing showed that 
interest rate and monthly payment were by far the two most common terms 
that participants used to shop for a mortgage. The Board also believes 
that the prepayment penalty is a key risk factor because it is critical 
to the consumer's ability sell the home or to refinance the loan to 
obtain a lower rate and payments. While the other risk factors are 
important, those factors are only required to be disclosed as 
applicable to avoid information overload.
    Rate and payment increases. With respect to rate increases, 
proposed Sec.  226.19(b)(2)(i)(A) would require the creditor to 
disclose a statement that the interest rate on the loan may increase, 
along with a statement indicating when the first rate increase may 
occur and the frequency with which the interest rate may increase. With 
respect to payment increases, proposed Sec.  226.19(b)(2)(i)(B) would 
require the creditor to disclose a statement indicating whether or not 
the periodic payment on the loan may increase. If the periodic payment 
on the loan may increase, then the creditor would disclose a statement 
indicating when the first payment may increase. For payment option 
loans, if the periodic payment may increase, the creditor would 
disclose a statement indicating when the first minimum payment would 
increase. Proposed comment 19(b)(2)(i)-1 would clarify that the 
requirement to disclose when the first rate or payment increase may 
occur refers to the time period in which the increase may occur, not 
the exact calendar date. For example, the disclosure may state, ``Your 
interest rate may increase at the end of the 3-year introductory 
period.''
    Prepayment penalties. If the obligation includes a finance charge 
computed from time to time by application of a rate to the unpaid 
principal balance, proposed Sec.  226.19(b)(2)(i)(C) would require the 
creditor to disclose a statement indicating whether or not a penalty 
could be imposed if the obligation is prepaid in full. If the creditor 
could impose a prepayment penalty, the creditor would disclose the 
circumstances under which and the period in which the creditor could 
impose the penalty. Because of the importance of prepayment penalties, 
the proposed rule would also require disclosure of this feature under 
proposed Sec.  226.38(a)(5). To avoid duplication, proposed comments 
19(b)(2)(i)(C)-1 to -3 cross-reference proposed comments 38(a)(5)-1 to 
-3 for information about whether there is a prepayment penalty and 
examples of charges that are or are not prepayment penalties.
    Some consumers take out ARM loans planning to refinance or sell the 
home securing the loan before the rate or payment increases. Consumer 
testing showed that while most participants understood the general 
meaning of the phrase ``prepayment penalty,'' they did not realize that 
the penalty would apply if they refinanced their loan or sold their 
home. The Board believes it is important for consumers to understand 
that a prepayment penalty may be imposed in various circumstances, 
including paying off the loan, refinancing, or selling the home early.
    Additional disclosures. As noted above, proposed Sec.  
226.19(b)(2)(ii) requires the creditor to disclose information about 
the following six terms, as applicable: (1) Interest-only payments, (2) 
negative amortization, (3) balloon payment, (4) demand feature, (5) no-
documentation or low-documentation loans, and (6) shared-equity or 
shared-appreciation. The Board proposes to require these disclosures 
only when the feature is present, in contrast to the required 
disclosures of proposed Sec.  226.19(b)(2)(i). Proposed comment 
19(b)(2)(ii)-1 would clarify that ``as applicable'' means that any 
disclosure not relevant to a particular ARM loan program may be 
omitted. Although consumer testing showed that some participants felt 
reassured by seeing all of the risk factors whether they were a feature 
of the loan or not, the Board is concerned about the potential for 
information overload if the entire list is included on every ARM loan 
program disclosure.
    Interest-only payments. Proposed Sec.  226.19(b)(2)(ii)(A) requires 
the creditor to disclose a statement that periodic payments will be 
applied only toward interest on the loan. The creditor would also 
disclose a statement of any limitation on the number of periodic 
payments that will be applied only toward interest on the loan and not 
towards the principal, that such payments will cover the interest owed 
each month, but none of the principal, and that making these periodic 
payments means the loan amount will stay the same and the consumer will 
not have paid any of the loan amount. For payment option loans, the 
creditor would disclose a statement that the loan gives the consumer 
the choice to make periodic payments that cover the interest owed each 
month, but none of the principal, and that making these periodic 
payments means the loan amount will stay the same and the consumer will 
not have paid any of the loan amount. Consumer testing showed that many 
participants did not understand that there are loans where the periodic 
payments do not pay down the mortgage principal. The Board believes it 
is important to alert

[[Page 43267]]

consumers to this feature in order to avoid payment shock when the 
principal becomes due or the periodic payment increases.
    Negative amortization. Proposed Sec.  226.19(b)(2)(ii)(B) would 
require the creditor to disclose a statement that the loan balance may 
increase even if the consumer makes the required periodic payments. In 
addition, the creditor would disclose a statement that the minimum 
payment covers only a part of the interest the consumer owes each 
period and none of the principal, that the unpaid interest will be 
added to the consumer's loan amount, and that over time this will 
increase the total amount the consumer is borrowing and cause the 
consumer to lose equity in the home. The proposed requirement would 
replace existing Sec.  226.19(b)(2)(vii), which requires the creditor 
to disclose any rules relating to changes in the outstanding loan 
balance, including an explanation of negative amortization. The Board 
believes that information regarding negative amortization should be 
disclosed because it is a complicated feature that significantly 
impacts a consumer's ability to repay the loan. Consumer testing showed 
that participants were generally unfamiliar with the term or concept. 
However, participants generally understood the revised transaction-
specific plain-language explanation of negative amortization's causes 
and effects when disclosed in the ``Key Questions'' format.
    Balloon payment. Proposed Sec.  226.19(b)(2)(ii)(C) requires the 
creditor to disclose a statement that the consumer will owe a balloon 
payment, along with a statement of when it will be due. Proposed 
comment 19(b)(2)(ii)(C)-1 would clarify that the creditor must make 
this disclosure if the loan program includes a payment schedule with 
regular periodic payments that when aggregated do not fully amortize 
the outstanding principal balance. Proposed comment 19(b)(2)(ii)(C)-2 
would clarify that the requirement to disclose when the balloon payment 
is due refers to the time period when it is due, not the exact calendar 
date. For example, the disclosure may state, ``You would owe a balloon 
payment due in seven years.'' The Board believes it is important for 
the consumer to be aware early in the process of any potential payment 
shock.
    Demand feature. Proposed Sec.  226.19(b)(2)(ii)(D) would require 
the creditor to disclose a statement that the creditor may demand full 
repayment of the loan, along with a statement of the timing of any 
advance notice the creditor will give the consumer before the creditor 
exercises such right. Proposed comment Sec.  226.19(b)(2)(ii)(D)-1 
would clarify that this requirement would apply not only to 
transactions payable on demand from the outset, but also to 
transactions that convert to a demand status after a stated period. 
Proposed comments Sec.  226.19(b)(2)(ii)(D)-2 and -3 cross-reference 
comment 18(i)-2 regarding covered demand features and comment 18(i)-3 
regarding the relationship to the payment schedule disclosures. The 
proposed rule replaces existing Sec.  226.19(b)(2)(x). The Board 
believes that demand features are rare in consumer mortgage 
transactions, but pose a considerable risk when present and, therefore, 
should be brought to the consumer's attention. Consumer testing showed 
that participants understood the revised language regarding a demand 
feature and thought it was important information.
    No-documentation or low-documentation loans. Proposed Sec.  
226.19(b)(2)(ii)(E) would require the creditor to disclose a statement 
that the consumer's loan could have a higher rate or fees if the 
consumer does not document employment, income, or other assets. In 
addition, the creditor would disclose a statement that if the consumer 
provides more documentation, the consumer could decrease the interest 
rate or fees. The Board is concerned that consumers who obtain loans 
with such features may not understand that they may pay a higher price 
for this feature.
    Shared-equity or shared-appreciation. Proposed Sec.  
226.19(b)(2)(ii)(F) requires the creditor to disclose a statement that 
any future equity or appreciation in the real property or dwelling that 
secures the loan must be shared, along with a statement of the 
percentage of future equity or appreciation to which the creditor is 
entitled, and the events that may trigger such an obligation. The Board 
is aware that a number of shared-equity and shared-appreciation 
programs are being offered to consumers, including low- and moderate-
income borrowers, on various terms. Consumer testing showed that 
participants were generally unfamiliar with the concept of shared-
equity or shared-appreciation. However, to the extent that a shared-
equity or a shared-appreciation feature is being offered as one of the 
loan terms, participants stated that they would want it disclosed 
clearly and prominently.
19(b)(3) Additional Information and Web Site
    Currently, Sec.  226.19(b)(2)(iv) and (v) require the creditor to 
disclose a statement that consumers should ask the creditor about the 
current margin value and current interest rate or the amount of any 
interest rate discount. Existing Sec.  226.19(b)(2)(xii) requires a 
notice that disclosure forms are available for the creditor's other 
variable-rate programs. Consumer testing indicated that many consumers 
skim disclosures quickly and become frustrated if they cannot quickly 
locate the key information they seek. Reducing the number of non-
specific notices in the loan program disclosures would increase the 
likelihood that consumers will read and understand specific 
disclosures. Under proposed Sec.  226.19(b)(3), the creditor would be 
required to disclose that the consumer may visit the Web site of the 
Federal Reserve Board for more information about adjustable-rate 
mortgages and for a list of licensed housing counselors in the 
consumer's area that can help the consumer understand the risks and 
benefits of the loan. The Board believes that streamlining the notice 
will reduce information overload.
19(b)(4) Format Requirements
    Proposed Sec.  226.19(b)(4) contains format requirements for ARM 
loan program disclosures. As discussed more fully in proposed Sec.  
226.37, consumer testing showed that the location and order in which 
information was presented affected consumers' ability to locate and 
comprehend the information disclosed. Based on these findings, the 
Board proposes, under Sec.  226.19(b)(4)(i), to require that creditors 
disclose the ``Key Questions about Risk'' using the format requirements 
for similar disclosures required by Sec.  226.38, except as otherwise 
provided in proposed Sec.  226.19(b)(4). Proposed Sec.  
226.19(b)(4)(ii) would require that the disclosures required by 
paragraphs (b)(1) through (b)(3) be grouped together and placed in a 
prominent location. Proposed Sec.  226.19(b)(4)(iii) would require that 
the heading ``Adjustable Rate Mortgage'' or ``ARM'' required under 
Sec.  226.19(b) be more conspicuous than and precede the other 
disclosures. The heading would be required to be outside the tables 
required under this paragraph. The creditor would be permitted to use a 
heading with the name of the loan program and the name of the creditor, 
such as ``XXX Bank 3/1 ARM.'' Proposed Sec.  226.19(b)(4)(viii) would 
require the disclosure of the Board's Web site and list of licensed 
housing counselors to be disclosed outside of the required tables 
described below.
    Proposed Sec.  226.19(b)(4)(iv) to (vii) would require the 
following special formats for the ARM loan program

[[Page 43268]]

disclosure: tabular format, question and answer format, highlighted 
answers, and special order of disclosures. Proposed Sec.  
226.19(b)(4)(iv) would require the creditor to provide the interest 
rate disclosure required under Sec.  226.19(b)(1) and the ``Key 
Questions about Risk'' disclosure required under Sec.  226.19(b)(2) in 
the form of two tables with headings, content and format substantially 
similar to Model Form H-4(B) in Appendix H. Consumer testing showed 
that using a tabular format improved participants' ability to readily 
identify and understand key information. Only the information required 
or permitted by paragraphs (b)(1) and (b)(2) would be in this table. In 
addition, under Sec.  226.19(b)(4)(v), the ``Key Questions about Risk'' 
disclosures would be required to be grouped together and presented in 
the format of a question and answer in a manner substantially similar 
to Model Form H-4(B) in Appendix H. The table with interest rate 
information would precede the table with the ``Key Questions about 
Risk.'' Consumer testing showed that using a question and answer format 
improved participants' ability to recognize and understand potentially 
risky or costly features of a loan. Proposed Sec.  226.19(b)(4)(vi) 
would require the creditor to disclose each affirmative answer in bold 
text and in all capitalized letters to highlight the fact that a risky 
feature is present in the loan. Negative answers (required under 
proposed Sec.  226.19(b)(2)(i) but not under proposed Sec.  
226.(b)(2)(ii)) would be disclosed in non-bold text. Finally, proposed 
Sec.  226.19(b)(4)(vii) would require the creditor to make the 
disclosures, as applicable, in the following order: Rate increases 
under Sec.  226.19(b)(2)(i)(A), payment increases under Sec.  
226.19(b)(2)(i)(B), interest-only payments under Sec.  
226.19(b)(2)(ii)(A), negative amortization under Sec.  
226.19(b)(2)(ii)(B), balloon payments under Sec.  226.19(b)(2)(ii)(C), 
prepayment penalties under Sec.  226.19(b)(2)(i)(C), demand feature 
under Sec.  226.19(b)(2)(ii)(D), no-documentation or low-documentation 
loans under Sec.  226.19(b)(2)(ii)(E), and shared-equity or shared-
appreciation under Sec.  226.19(b)(2)(ii)(F). This order would ensure 
that consumers receive critical information about their payments first. 
Model Clauses and Samples are proposed at Appendix H-4(C) through H-
4(F).
19(c) Publications for Transactions Secured by Real Property or a 
Dwelling
    Based on the results of consumer testing, under the proposal 
creditors would be required to provide to consumers two Board 
publications for closed-end transactions secured by real property or a 
dwelling. The first publication, entitled ``Key Questions to Ask about 
Your Mortgage,'' discusses loan terms and conditions that are important 
for consumers to consider when selecting a closed-end mortgage loan. 
The second publication, entitled ``Fixed vs. Adjustable Rate 
Mortgages,'' discusses the respective costs and benefits of fixed-rate 
mortgages and ARMs.
    Under existing Sec.  226.19(b)(1), the creditor must provide to the 
consumer a copy of the CHARM booklet published by the Board, or a 
suitable substitute. The Board consumer tested the CHARM booklet and a 
sample current loan program disclosure. Few of the consumer testing 
participants who had obtained an ARM recalled having seen the CHARM 
booklet. Although many participants thought that the information in the 
CHARM booklet is useful, particularly the descriptions of ``payment 
shock,'' prepayment penalties, and negative amortization, most 
participants thought that the CHARM booklet is too long and that they 
likely would not read it.
    The proposed rule would eliminate the requirement under Sec.  
226.19(b)(1) for creditors to provide the CHARM booklet to consumers 
who express interest in an ARM transaction, and instead, under proposed 
Sec.  226.38(c)(2) require a brief Board publication showing the 
principal differences between a fixed-rate loan and an ARM. Comment 
19(b)(1)- and -2 on the CHARM booklet would be removed accordingly. 
Also, proposed Sec.  226.38(c)(1) would require creditors to provide to 
all consumers--regardless of whether they express interest in an ARM--
two new single-page Board publications. These new disclosure forms 
would contain a notice stating where consumers may obtain additional 
information about ARMs. The Board believes that requiring that 
creditors provide the ``Key Questions to Ask about Your Mortgage'' 
publication and the ``Fixed versus Adjustable Rate Mortgages'' 
publication without modifications would promote consistency in the 
information consumers receive about ARMs. Accordingly, proposed Sec.  
226.19(c) would require creditors to provide this information ``as 
published.''
    The Board proposes to require creditors to provide these 
publications at the time a consumer is given an application form or 
pays a non-refundable fee, whichever is earlier, for fixed-rate 
mortgage loans as well as variable-rate mortgage loans. Special rules 
for when a consumer accesses an application form electronically and 
when the creditor receives a consumer's application from an 
intermediary agent or broker are discussed below. The Board solicits 
comment on whether there are other loan types for which loan program 
publications should be given at the time an application form is 
provided to a consumer or before the consumer pays a non-refundable 
fee, whichever is earlier.
19(d) Timing of Disclosures
    Proposed comment 19(c)-1 states that creditors are not required to 
provide disclosures under proposed Sec.  226.19(c) in cases where an 
open-end credit account will convert to a closed-end transaction. The 
``Key Questions to Ask About Your Mortgage'' disclosure and the ``Fixed 
vs. Adjustable Rate Mortgages'' disclosure would not be helpful at that 
time, because the creditor and consumer already will have entered into 
a written agreement. By contrast, transaction-specific disclosures are 
required in such cases under Sec.  226.19(b), both as in effect (see 
comment 19(b)-2(iv)) and as proposed (see proposed Sec.  226.19(b) and 
comment 19(b)-2).
    Existing Sec.  226.19(b) requires that creditors provide variable-
rate loan program disclosures at the time an application form is 
provided to a consumer or before the consumer pays a non-refundable 
fee, whichever is earlier. Comment 19(b)-2 currently discusses when a 
creditor should provide such disclosures in cases where the creditor 
receives a consumer's application through an intermediary agent or 
broker or a consumer requests an application by telephone. The comment 
also clarifies that if the creditor solicits applications by mailing 
application forms, the creditor must send the ARM loan program 
disclosures with the application form. Existing Sec.  226.19(c) 
contains requirements for providing variable-rate loan program 
disclosures when a consumer accesses an application form 
electronically. (Section 226.17(a)(1) currently permits creditors to 
provide the ARM loan program disclosures electronically, without regard 
to the consumer-consent or other provisions of the Electronic 
Signatures in Global and National Commerce Act, 15 U.S.C. 7001 et seq. 
(E-Sign Act)).
    Under the Board's proposal, timing requirements for ARM loan 
program disclosures would be consolidated in proposed Sec.  226.19(d). 
These timing requirements also would apply to the provision of the 
proposed new ``Key Questions to Ask About Your Mortgage'' and ``Fixed 
vs. Adjustable Rate

[[Page 43269]]

Mortgages'' disclosures. Proposed Sec.  226.19(d)(1) contains the 
general requirement to provide ARM loan program disclosures (if a 
consumer expresses interest in ARMs) at the time an application form is 
provided or before the consumer pays a non-refundable fee, whichever is 
earlier. Proposed Sec.  226.19(d)(1) also specifies that creditors must 
provide ARM loan program disclosures before charging a fee for 
obtaining a consumer's credit report.
    Proposed Sec.  226.19(d)(2) states that if a consumer accesses an 
ARM loan application electronically, a creditor must provide the 
disclosures in electronic form, except as provided in Sec.  
226.19(d)(2). Proposed Sec.  226.19(d)(2), in turn, states that if a 
consumer who is physically present in a creditor's office accesses an 
ARM loan application electronically, the creditor may provide 
disclosures in either electronic or paper form. These provisions are 
consistent with existing comment 19(c)-1(i) and (ii). Comment 19(c)-1 
on the form of electronic disclosures would be redesignated as comment 
19(d)(2)(i)-1. Commentary on the timing of electronic disclosures, 
currently contained in comment 19(b)-2(v), would be redesignated as 
comments 19(d)(2)(i)-2 and 19(d)(2)(ii)-1. Further, under the proposed 
rule existing Sec.  226.17(a) would be revised to include the proposed 
new Key Questions to Ask About Your Mortgage'' and ``Fixed vs. 
Adjustable Rate Mortgages'' disclosures among the disclosures creditors 
may provide without regard to the consumer-consent or other provisions 
of the E-Sign Act.
    Proposed Sec.  226.19(d)(3) contains rules for applications made by 
telephone or through an intermediary. These rules are consistent with 
existing comment 19(b)-2. Existing comments 19(b)-2(i) through -2(iii) 
are redesignated as comments 19(d)(3)-1 through 19(d)(3)-3. Existing 
comment 19(b)-2(iii) states that the creditor must include the 
disclosures required by Sec.  226.19(b) with any application form the 
creditor sends by mail to solicit consumers. This comment is 
redesignated as proposed comment 19(d)(3)-3 and revised to cover the 
Key Questions and Fixed versus Adjustable Rate Mortgages disclosures 
required by proposed Sec.  226.19(c).
    Proposed Sec.  226.19(d)(4) provides that, where a consumer does 
not express interest in an ARM until after receiving or accessing an 
application form or paying a non-refundable fee, the creditor must 
provide an ARM loan program disclosure(s) within three business days 
after the consumer expresses such interest to the creditor or the 
creditor receives notice from an intermediary broker or agent that the 
consumer has expressed interest in an ARM. This is consistent with 
existing footnote 45b. Existing comment 19(b)-3 is redesignated as 
comments 19(d)(3)-1 through 19(d)(3)-3 under the proposed rule.
    Proposed Sec.  226.19(d)(5) provides that if the consumer expresses 
an interest in negotiating loan terms that are not generally offered, 
the creditor need not provide the disclosures required by Sec.  
226.19(b) before an application form is provided. Proposed Sec.  
226.19(d)(5) requires that the creditor provide such disclosures as 
soon as reasonably possible after the terms to be disclosed have been 
determined and not later than the time the consumer pays a non-
refundable fee. Further, proposed Sec.  226.19(d)(5) provides that in 
all cases the creditor must provide the disclosures required by Sec.  
226.19(c) of this section at the time an application form is provided 
or before the consumer pays a non-refundable fee, including a fee for 
obtaining a consumer's credit history, whichever is earlier.
    Comment 19(b)(2)-1 currently provides that, if ARM loan program 
disclosures cannot be provided because a consumer expresses an interest 
in individually negotiating loan terms that the creditor generally does 
not offer, the creditor may provide disclosures reflecting those terms 
as soon as reasonably possible after the terms have been decided upon, 
but not later than the time the consumer pays a non-refundable fee. 
Proposed Sec.  226.19(d)(5) incorporates that guidance into the 
regulation. Further, comment 19(b)(2)-1 provides that if, after an 
application form is provided or the consumer pays a non-refundable fee, 
a consumer expresses an interest in an adjustable-mortgage loan program 
for which the creditor has not provided the ARM loan program 
disclosures, the creditor must provide such disclosures as soon as 
reasonably possible. Proposed Sec.  226.19(d)(6) incorporates that 
guidance into the regulation. The foregoing guidance is removed from 
comment 19(b)(2)-1 (which the proposed rule would redesignate as 
comment 19(b)-4) because under the proposed rule timing rules for ARM 
loan program disclosures are contained in Sec.  226.19(d) rather than 
Sec.  226.19(b).

Section 226.20 Subsequent Disclosure Requirements

20(b) Assumptions
    Section 226.20(b) currently requires post-consummation disclosures 
if the creditor expressly agrees in writing with a subsequent consumer 
to accept that consumer as a primary obligator on an existing 
residential mortgage transaction. The Board proposes technical changes 
to Sec.  226.20(b) and associated commentary to reflect the new format 
and content disclosure requirements for transactions secured by real 
property or a dwelling under Sec. Sec.  226.37 and 226.38.
20(c) Rate Adjustments
    For ARM transactions subject to Sec.  226.19(b), Sec.  226.20(c) 
currently requires creditors to mail or deliver to consumers a notice 
of interest rate adjustment at least 25, but no more than 120, calendar 
days before a payment at a new level is due. Section 226.20(c) also 
requires creditors to mail or deliver to consumers an adjustment notice 
at least once each year during which an interest rate adjustment is 
implemented without an accompanying payment change.
    Those adjustment notices must state: (1) The current and prior 
interest rates for the loan; (2) the index values upon which the 
current and prior interest rates are based; (3) the extent to which the 
creditor has foregone any increase in the interest rate; (4) the 
contractual effects of the adjustment, including the payment due after 
the adjustment is made, and a statement of the loan balance; and (5) 
the payment, if different from the payment due after adjustment, that 
would be required to fully amortize the loan at the new interest rate 
over the remainder of the loan term. Model clauses in Appendix H-4(H) 
illustrate how creditors may comply with the requirements of Sec.  
226.20(c).
Discussion
    The Board adopted the requirements for post-consummation 
disclosures (subsequent disclosures) in 1987. The minimum advance 
notice of a rate adjustment was set at 25 days to track the rules of 
the Office of the Comptroller of the Currency (OCC) and to provide 
creditors with flexibility in giving adjustment notices for a variety 
of ARMs. See 52 FR 48665, 48668; Dec. 24, 1987. Since 1987, ARMs have 
grown in popularity, especially from 2003 to 2007. Beginning in 2007, 
ARM growth began to slow as consumers experienced difficulty repaying 
such loans and concerns grew about the risk of payment shock ARMs pose.
    Because ARMs pose the risk of payment shock, it is critical that 
consumers receive notice of ARM payment changes so they can prepare to 
make higher payments if necessary. If

[[Page 43270]]

the new payments are unaffordable, borrowers need time to seek a 
refinance loan with lower payments or make other arrangements. Even if 
a consumer can afford a higher payment, the consumer may want to 
refinance into a fixed-rate loan for payment certainty or into another 
ARM loan with lower payments. It is particularly important that 
consumers with subprime loans receive adequate notice before a payment 
increase, as these borrowers tend to be more vulnerable to payment 
shock.
    The Board believes the current 25-day notice is insufficient to 
allow many consumers to refinance into a loan with affordable payments 
or to make other arrangements. In the ``Subprime Mortgage Guidance'' 
issued in 2007, the Board, the OCC, FDIC, OTS, and NCUA stated that 
consumers should be given at least 60 days before an ARM adjustment in 
which to refinance without paying a prepayment penalty. Several 
consumer advocates who commented on the Board's 2008 HOEPA Final Rule 
stated that consumers with subprime ARMs may need significant time in 
which to seek out a refinancing, in some cases as much as 6 months.
The Board's Proposal
    The Board proposes to require creditors to mail or deliver a notice 
of an interest rate adjustment at least 60 days before payment at a new 
level is due, instead of the current 25-day provision. Creditors would 
provide notice annually where interest rate changes are made without 
accompanying payment changes under the proposed. Proposed Sec.  
226.20(c)(1)(i) contains timing requirements for circumstances where a 
payment change accompanies an interest rate adjustment, and proposed 
Sec.  226.20(c)(ii) contains timing requirements for circumstances 
where no payment change accompanies interest rate changes made during a 
year.
    Proposed Sec.  226.20(c)(2) contains content requirements for 
disclosures required where a payment change accompanies an interest 
rate adjustment. Proposed Sec.  226.20(c)(3) contains content 
requirements for disclosures required once each year where no payment 
change accompanies an interest rate change. Whether or not a payment 
change is made, under proposed Sec.  226.20(c)(4) creditors would 
disclose the following information: (1) The date until which the 
creditor may impose a prepayment penalty if the consumer prepays the 
obligation in full, if applicable; (2) a phone number the consumer may 
call to obtain additional information about the loan; and (3) a 
telephone number and Internet Web site for HUD-licensed housing 
counselors. Proposed Sec.  226.20(c)(5) contains formatting 
requirements for discloses required by proposed Sec.  226.20(c).
    Section 226.20(c) currently provides that an adjustment to the 
interest rate with or without a corresponding adjustment to the payment 
in an adjustable-rate mortgage subject to Sec.  226.19(b) is an event 
requiring new disclosures to the consumer. The proposed rule would 
retain this provision. Comment 20(c)-1 provides that the requirements 
of Sec.  226.20(c) apply where the interest rate and payment change due 
to the conversion of an adjustable-rate mortgage subject to Sec.  
226.19(b) to a fixed-rate mortgage. The proposed rule would incorporate 
this guidance into proposed Sec.  226.20(c). Further, the proposed rule 
would revise comment 20(c)-1 for clarity and to remove commentary on 
timing requirements, because timing requirements are contained in 
proposed Sec.  226.20(c)(1).
    The proposed rule would revise comment 20(c)-2 to clarify that 
price-level adjusted mortgages and similar mortgages are not subject to 
the disclosure requirements of Sec.  226.20(c) because they are not 
subject to the disclosure timing requirements of Sec.  226.19(b), as 
discussed above. The proposed rule would remove the commentary stating 
that ``shared-equity'' and ``shared-appreciation'' mortgages are not 
subject to the disclosure requirements of Sec.  226.20(c) to conform 
with the removal of reference to such mortgages as examples of 
variable-rate transactions from comment 17(c)(1)-11 (redesignated as 
proposed comment 17(c)(1)(iii)-4), as discussed above. Under the 
proposed rule, whether or not creditors must provide ARM adjustment 
notices for a shared-equity or shared-appreciation mortgage depends on 
whether such mortgage has an adjustable rate or a fixed rate. Shared-
equity and shared-appreciation mortgages with a fixed rate would not be 
considered adjustable-rate mortgages under the proposed rule.
20(c)(1) Timing of Disclosures
    The Board proposes to require creditors to mail or deliver a notice 
of an interest rate adjustment for a closed-end ARM at least 60, but no 
more than 120, days before payment at a new level is due. This proposal 
is designed to provide borrowers with enough advance notice about an 
impending rate and payment change to enable them to refinance the loan 
if they cannot afford the adjusted payment. Even if consumers do not 
need or want to refinance a loan, they may need time to adjust other 
spending in order to afford higher mortgage loan payments.
    The Board issued the current rule requiring 25 days' notice before 
a payment at a new level is due in 1987. Home Mortgage Disclosure Act 
(HMDA) data for the years 2004 through 2007 suggest that a requirement 
to provide ARM adjustment 60, rather than 25, days before payment at a 
new level is due more closely reflects the time needed for consumers to 
refinance a loan.\44\ In each of those years, for first-lien refinance 
loans, the period between loan application and origination was 25 days 
or less for 50 percent of the loans originated, 45 days or less for 75 
percent of the loans originated, and 65 days or less for 90 percent of 
the loans originated. (These data do not include time needed to compare 
available refinance loans.) Requiring creditors to provide an ARM 
adjustment notice at least 60 days before payment at a new level is due 
would better enable consumers to arrange to make a higher payment (if 
applicable) without missing a payment or paying less than the amount 
due.
---------------------------------------------------------------------------

    \44\ HMDA data consist of information reported by about 8,600 
home lenders, including all of the nation's largest mortgage 
originators. Reported loans are estimated to represent about 80 
percent of all home lending nationwide. Accordingly, HMDA data 
likely provide a broadly representative view of U.S. home lending. 
Robert B. Avery, Kenneth P. Brevoort, and Glenn B. Canner, The 2007 
HMDA Data, 94 Fed. Reserve Bulletin A107 (Dec. 23, 2008).
---------------------------------------------------------------------------

    The Board believes that a 60-day minimum notice requirement is 
consistent with many existing ARM agreements. For most ARMs, creditors 
base the calculation of interest rate changes on the value of an index 
30 or 45 days prior to the effective date of a rate change (calculation 
date). Creditors generally refer to the period from the calculation 
date to the effective date of the interest rate change as the ``look-
back period.'' (Interest rate change dates tend to be the first of a 
month to correspond with payment due dates.) In turn, payment in the 
new amount is due on the first day of the month following the month in 
which interest accrued at the new rate.
    Thus, for most ARM loans creditors know what the new interest rate 
and payment will be well before payment at a new level is due, even 
assuming a week-long lag between publication of an index's level and 
the creditor's verification of that level. In fact, many creditors mail 
or deliver notice of an interest rate and payment change 60 or more 
days before payment at a new level is due.

[[Page 43271]]

    However, some ARM agreements may provide for shorter look-back 
periods. For example, the calculation date for some ARM products is the 
first business day of the month that precedes the effective date of the 
interest rate change. The first day of that month may not be a business 
day, in which case the look-back period would be fewer than 30 days. In 
addition, it takes time for index levels to be reported and for 
creditors to confirm the index level and prepare disclosures for 
delivery or mailing.
    Proposed Sec.  226.20(c)(1) requires creditors to provide advance 
notice of an adjustment at least 60, but no more than 120, days before 
payment at a new level is due, not before the interest rate changes. 
Comment 20(c)-1 would be revised to reflect the increase in the 
required advance notice of a payment adjustment. Proposed comment 
20(c)(1)-1 provides that if an adjustable-rate feature is added when an 
open-end credit account is converted to an adjustable-rate transaction, 
creditors must provide disclosures under Sec.  226.20(c)(1) where 
payments change due to conversion of a transaction subject to Sec.  
226.19(b) to a fixed-rate transaction. Because relevant payment changes 
under existing and proposed Sec.  226.20(c) are those due to interest 
changes, proposed comment 20(c)(1)-2 clarifies that payment changes due 
to adjustments in property tax obligations or premiums for mortgage-
related insurance do not trigger requirements to disclose interest rate 
and payment adjustments.
    The Board solicits comment on the operational changes creditors and 
servicers would need to make to provide disclosures at least 60 days 
before payment at a new level is due. Are there indices that are 
published at times that would make compliance with such a rule 
difficult? Are reported levels for particular indices difficult to 
confirm within a few days? The Board requests comment on whether 
requiring creditors to provide 45, rather than 60, days' advance notice 
of a payment change better balance concerns about providing sufficient 
notice to consumers and sufficient time for creditors to verify 
reported indices and prepare disclosures.
    A look-back period of 45 days likely provides ample time for a 
creditor to determine a loan's new interest rate and provide 
disclosures at least 60 days before payment at a new level is due, as 
discussed above. Are there reasons why a look-back period of forty-five 
days is not feasible for certain loan types for which a shorter look-
back period is common, for example, subordinate-lien loans? Also, where 
an interest rate and payment adjustment is due to the conversion of an 
adjustable-rate mortgage to a fixed-rate mortgage under a written 
agreement, should creditors continue to be required to provide an 
adjustment notice at least 25, rather than at least 60, days before 
payment at a new level is due?
    Coverage. Section 226.20(c) currently applies to transactions 
subject to Sec.  226.19(b), which applies to closed-end ARMs secured by 
a consumer's principal dwelling with a term greater than one year. The 
Board is proposing to apply Sec.  226.19(b) to all closed-end ARMs 
secured by real property or a dwelling, as discussed above. Proposed 
Sec.  226.20(c) would apply to the same category of transactions.
    The Board recognizes that currently creditors need not provide ARM 
adjustment notices under existing Sec.  226.20(c) for a short-term 
transaction, such as a construction loan, with an adjustable rate. The 
Board solicits comment on whether a 60-day notice period is appropriate 
for such loans and if not, what period would be appropriate and still 
provide consumers sufficient notice of a payment change.
    Existing ARM loan agreements. The Board is aware that some ARM loan 
agreements may provide for a look-back period that is too short for the 
creditor to be able to provide an adjustment notice at least 60 days 
before payment at a new level is due. The Board seeks comment on the 
number or proportion of existing ARM loan agreements under which 
creditors or servicers could not comply with a minimum 60-day advance 
notice requirement.
20(c)(2)(i)
    Where a payment change accompanies an interest rate change, 
proposed Sec.  226.20(c)(2)(i) requires creditors to disclose a 
statement that changes are being made to the interest rate and the date 
such change is effective. Proposed Sec.  226.20(c)(2)(i) also requires 
creditors to state that more detailed information is available in the 
loan agreements. Proposed Sec.  226.20(c)(5)(ii) requires that these 
disclosures appear before the other required disclosures, as discussed 
below.
20(c)(2)(ii)
    Proposed Sec.  226.20(c)(2)(ii) requires creditors to provide the 
following disclosures for covered loans in the form of a table: (1) The 
current and new interest rates; (2) if payments are interest-only or 
negatively amortizing, the amount of the current and new payment 
allocated to pay interest, principal, and property taxes and mortgage-
related insurance, as applicable; and (3) the current and new periodic 
payment amounts and the due date for the first new payment. This 
content is substantially similar to the content of the ``Payment 
Summary'' table in the TILA disclosures provided before consummation 
for most types of ARMs. (Under proposed Sec.  226.38, the ``Payment 
Summary'' table for negatively amortizing ARMs differs from the 
``Payment Summary'' table for other ARMs, as discussed below.) Under 
proposed Sec.  226.20(c)(5)(iii), this table would have to contain 
headings, content, and format substantially similar to those in 
Appendix H-4(G), as discussed below.
    Currently, ARM adjustment notices need not state how payments are 
allocated among principal, interest, and escrow accounts. The Board 
believes that a table showing payment allocations would benefit 
consumers with interest-only or negatively amortizing loans. 
Participants in the Board's consumer testing generally understood a 
sample form with a table showing the transition from interest-only 
payments to payments of both principal and interest. Further, all 
participants correctly identified the new payment and the due date of 
the first payment at the new level shown in the table. Almost all 
participants recognized the increase in the interest rate and amounts 
escrowed for taxes and property-related insurance and that part of the 
new payment would be allocated to pay principal.
    Comment 20(c)(1)-1 on disclosing ``current'' and ``prior'' interest 
rates would be revised for clarity to refer instead to ``current'' and 
``new'' interest rates. Under the proposed rule, Sec.  226.20(c)(3) 
contains content requirements for annual notice disclosures and Sec.  
226.20(c)(2) contains content requirements for payment change notices. 
Accordingly, commentary on disclosure where no payment change has 
occurred during a year would be removed from comment 20(c)(1)-1.
20(c)(2)(iii)
    Creditors currently must disclose the index values upon which the 
prior and new interest rates are based, under existing Sec.  
226.19(c)(2). Some consumer testing participants had difficulty 
understanding the relationship among an index, a margin, and an 
interest rate. Accordingly, proposed Sec.  226.20(c)(2)(iii) 
substitutes a requirement that disclosures contain a description of the 
change in the index or formula for the disclosure required under 
existing Sec.  226.20(c)(2). For example, rather than

[[Page 43272]]

disclose that payments previously were based on a 1-year LIBOR rate of 
3.75 and now would be based on a new rate of 5.75, a creditor might 
disclose the following: ``Your interest rate will change due to an 
increase in the 1-year LIBOR index.'' Further, proposed Sec.  
226.20(c)(2)(iii) requires creditors to disclose any application of 
previously foregone increases together with the description of the 
change in the index or formula.
    A simple statement of the occurrence that caused the interest rate 
and payment to change likely conveys a level of information suitable 
for most consumers' needs. In consumer testing conducted for the Board, 
participants indicated that they found explanations of interest rates 
difficult to follow. Thus, providing more information would likely 
result in information overload. Consumers who prefer more information 
can review the loan agreement to determine the interaction between the 
interest rate and the index and margin or to learn more about the 
formula used to determine the interest rate. The loan agreement also 
will contain information about how the creditor may apply previously 
foregone interest. For these reasons, proposed Sec.  226.20(c)(2)(ii) 
does not require creditors to disclose the current and prior index 
values. Comment 20(c)(2)-1 would be removed accordingly.
    Comment 20(c)(4)-1, which discusses the types of contractual 
effects Sec.  226.20(c) requires creditors to disclose--for example, 
effects on the loan term and balance--also would be removed under the 
proposed rule. Proposed comments 20(c)(2)(vi)-2, 20(c)(2)(vii)-1, and 
20(c)(3)(v)-1 reflect the removed commentary, however.
20(c)(2)(iv)
    Existing Sec.  226.20(c)(3) requires that a creditor disclose the 
extent to which the creditor has foregone any increase in the interest 
rate. This requirement would be redesignated as proposed Sec.  
226.20(c)(2)(iv). Further, proposed Sec.  226.20(c)(iv) would require 
creditors to disclose the earliest date a creditor may apply foregone 
interest to future adjustments, subject to any rate caps. Proposed 
comment 20(c)(3)(iv)-1 states that creditors may rely on proposed 
comment 20(c)(2)(iv)-1 in determining to which transactions the 
requirement to disclose foregone interest applies and how to disclose 
such increases. Proposed comment 20(c)(3)(iv)-1 clarifies that 
creditors need not disclose the earliest date the creditor may apply 
foregone interest in notices provided annually when no payment change 
occurs during a year.
20(c)(2)(v)
    Proposed Sec.  226.20(c)(2)(v) would require creditors to disclose 
limits on interest rate or payment increases at each adjustment, if 
any, and the maximum interest rate or payment over the life of the 
loan. This is consistent with the disclosure of rate change limits in 
the ``More Information about Your Payments'' section of the disclosures 
provided within three business days of application. See proposed Sec.  
226.38(e).
20(c)(2)(vi)
    Currently, where the required loan payment is different from the 
payment disclosed under Sec.  226.20(c)(4), Sec.  226.20(c)(5) requires 
a creditor to disclose the payment required to fully amortize the loan 
over the remainder of the loan term. This requirement would be 
redesignated as proposed Sec.  226.20(c)(2)(vi). Further, in all cases 
creditors would disclose a statement regarding whether or not part of 
the new payment will be allocated to pay the loan principal. This is 
consistent with the focus on the impact of loan payments on loan 
principal in the proposed new ``Key Questions'' disclosure in Sec.  
226.19(c) and the ``Key Questions about Risk'' section of the 
disclosure creditors provide within three business days of application 
in proposed Sec.  226.38(d).
    Existing comment 20(c)(5)-1, on fully amortizing payments, would be 
redesignated as comment 20(c)(2)(vi)-1. The comment also would be 
revised for clarity and to update cross-references. Consistent with 
existing comment 20(c)(4)-1, proposed comment 20(c)(2)(vi)-2 clarifies 
that the creditor must disclose any change in the term or maturity of 
the loan if the change resulted from the rate adjustment.
20(c)(2)(vii)
    Existing Sec.  226.20(c)(4) requires creditors to disclose the loan 
balance. This requirement would be redesignated as proposed Sec.  
226.20(c)(2)(vii) and would require creditors to disclose the loan 
balance as of the effective date of the interest rate adjustment. 
Proposed comment 20(c)(2)(vii)-1 clarifies that the balance required to 
be disclosed is the balance on which the new adjusted payment is based. 
This is consistent with existing comment 20(c)(4)-1.
20(c)(3) Content of Annual Interest Rate Notice
    Existing Sec.  226.20(c) requires creditors to provide ARM 
adjustment notices at least once each year during which an interest 
rate adjustment is implemented without an accompanying payment change. 
This requirement would be redesignated as proposed Sec.  226.20(c)(3). 
Currently, Sec.  226.20(c) contains a single list of required 
disclosures creditors must provide as applicable, in a payment change 
notice and an annual notice of interest rate changes without payment 
changes. Proposed Sec.  226.20(c)(3) specifies the disclosures that are 
applicable for purposes of annual notices.
20(c)(3)(i)
    Under proposed Sec.  226.20(c)(3)(i), where no payment adjustment 
has been made during a year, the creditor must disclose that the 
interest rate on the loan has changed without changing the payments the 
consumer must make. Further, proposed Sec.  226.20(c)(3)(i) requires 
creditors to disclose the specific time period for which the annual 
notice discloses interest rates that were not accompanied by payment 
changes. Proposed Sec.  226.20(c)(5)(ii) requires that this disclosure 
appear before the other required disclosures, as discussed below.
20(c)(3)(ii)
    Under proposed Sec.  226.20(c)(3)(ii), a creditor must disclose the 
highest and lowest interest rates applied during the year in which no 
payment change has accompanied interest rate changes. Creditors would 
not disclose all interest rates applied to a transaction if the payment 
has not changed. By contrast, existing comment 20(c)-1 provides that 
creditors either may disclose all interest rates that applied or the 
highest and lowest rates. The Board believes that a simple and clear 
disclosure of the highest and lowest interest rates applied better 
conveys to consumers the impact of interest rate changes than does a 
list of all of the interest rates applied. This is especially true 
where interest rates change more frequently than monthly.
20(c)(3)(iii)
    Creditors disclose the extent to which the creditor has foregone 
any increase in the interest rate under existing Sec.  226.20(c)(3). 
This requirement would be contained in proposed Sec.  226.20(c)(3)(iii) 
for notices where payment changes do not accompany interest rate 
changes made during a year.
20(c)(3)(iv)
    Proposed Sec.  226.20(c)(3)(iv) requires creditors to disclose the 
maximum interest rate that may apply over the life of the loan. This is 
consistent with the disclosure of rate change limits in the ``More 
Information about Your Payments'' section of the disclosures

[[Page 43273]]

provided within three business days of application in proposed Sec.  
226.38(e).
20(c)(3)(v)
    Existing Sec.  226.20(c)(4) requires creditors to disclose the loan 
balance. Under the proposal, this requirement would be contained in 
proposed Sec.  226.20(c)(3)(v) for purposes of annual notices where 
payment changes do not accompany interest rate changes. Creditors would 
disclose the loan balance as of the last date of the year covered by 
the disclosure. Proposed comment 20(c)(3)(v)-1 clarifies that the 
balance required to be disclosed is the balance on which the new 
adjusted payment is based. This is consistent with existing comment 
20(c)(4)-1.
20(c)(4) Additional Information
    Proposed Sec.  226.20(c)(4) requires that ARM adjustment notices 
creditors provide information about prepayment penalties, contacting 
the creditor, and locating housing counseling resources. Proposed Sec.  
226.20(c)(5)(ii) requires that these additional disclosures be located 
directly below the required interest rate disclosures, as discussed 
below.
20(c)(4)(i)
    Proposed Sec.  226.20(c)(4)(i) requires creditors to disclose the 
last date the creditor may impose a penalty if the consumer prepays the 
obligation in full and the amount of the maximum penalty possible 
before that date, if applicable. Under proposed Sec.  226.20(c)(4)(i), 
if an ARM has a prepayment penalty, the creditor must disclose the 
required information whether or not a payment change accompanies the 
interest rate change. The Board believes that disclosures regarding a 
prepayment penalty would assist consumers in determining when to seek a 
refinance loan. When presented with a sample ARM adjustment notice for 
a loan with a prepayment penalty, almost all consumer testing 
participants recognized that a prepayment penalty would apply if they 
obtained a refinance loan before a specified date.
    Proposed Sec.  226.20(c)(4)(i) provides that the creditor shall 
disclose the maximum prepayment penalty possible if the consumer 
prepays in full between the date the creditor delivers or mails the ARM 
adjustment notice and the last day the creditor may impose the penalty. 
The Board requests comment on whether creditors should determine the 
maximum prepayment penalty during some other period, for example 
between the date the creditor prepares the ARM adjustment notice and 
the last day the creditor may impose the penalty.
20(c)(4)(ii)
    Proposed Sec.  226.20(c)(4)(ii) requires creditors to disclose a 
phone number to call for additional information about the consumer's 
loan. Creditors must provide this information whether or not a payment 
change accompanies an interest rate change, under the proposed rule. 
Most consumer testing participants responded positively to tested 
disclosures stating how to contact their lender with questions and 
stated that they would call their lender if they realized they were 
unable to afford higher payments on an ARM.
20(c)(4)(iii)
    Proposed Sec.  226.20(c)(4)(iii) requires creditors to disclose a 
phone number and an Internet Web site consumers may use to obtain a 
list of HUD-licensed housing counselors. The proposed rule requires 
creditors to provide this disclosure whether or not a payment change 
accompanies an interest rate change. Most consumer testing participants 
thought that information about how to locate a HUD-licensed housing 
counselor would be useful to consumers. Some said that they would use 
the information themselves if they had difficulty affording payments.
20(c)(5) Format of Disclosures
20(c)(5)(i)
    Proposed Sec.  226.20(c)(5)(i) requires that the heading, content, 
and format of the disclosures required by Sec.  226.20(c) be 
substantially similar to the heading, content, and format of the model 
form in Appendix H-4(G), where an interest rate adjustment is 
accompanied by a payment change, or the model form in Appendix H-4(K), 
where a creditor provides an annual notice of interest rate adjustments 
without an accompanying payment change. Proposed Sec.  226.20(c)(5)(i) 
also requires that the disclosures required by Sec.  226.20(c) be 
placed in a prominent location. (Comment 37(d)-1 states that 
disclosures meet the prominent location standard if they are located on 
the first page and on the front side of the disclosure statement.)
    Further, under proposed Sec.  226.20(c)(5)(i) the interest rate 
disclosures required by Sec.  226.20(c)(2) (where a payment change 
accompanies an interest rate change) or Sec.  226.20(c)(3) (where no 
payment change occurs during a year) must be grouped together with the 
additional disclosures on prepayment penalties, contacting the creditor 
or servicer for loan information, and locating housing counseling 
resources required by proposed Sec.  226.20(c)(4). These grouped 
disclosures must be segregated from everything else.
20(c)(5)(ii)
    Under proposed Sec.  226.20(c)(5)(ii), the statement that changes 
are being made to the interest rate and payments (under proposed Sec.  
226.20(c)(2)(i)) or that the interest rate has changed without 
accompanying payments changes (under proposed Sec.  226.20(c)(3)(i)) 
must precede the other required disclosures. The additional disclosures 
on information on prepayment penalties, contacting the creditor, and 
housing counseling resources required by proposed Sec.  226.20(c)(4) 
must follow the interest rate disclosures, under proposed Sec.  
226.20(c)(5)(ii).
20(c)(5)(iii)
    Under proposed Sec.  226.20(c)(5)(iii), where a payment change 
accompanies an interest rate adjustment, the interest rate and payment 
change disclosures required by proposed Sec.  226.20(c)(2)(ii) must 
contain headings, content, and format substantially similar to those in 
the table contained in Appendix H-4(G). The textual disclosures 
required by proposed Sec.  226.20(c)(2)(iii) through (vii) must be 
located directly below the table. Further, the format requirements in 
Sec.  226.37 apply to ARM adjustment notices, as discussed below.
    Regulations of other agencies. Footnote 45c to Sec.  226.20(c) 
currently states that creditors may substitute information provided in 
accordance with variable-rate subsequent disclosure regulations of 
other federal agencies for the disclosure required by Sec.  226.20(c). 
The Board adopted footnote 45c in 1987, a time when OCC, FHLBB, and HUD 
regulations contained subsequent disclosure requirements for ARMs. See 
52 FR 48665, 48671; Dec. 24, 1987. The proposed rule would remove 
footnote 45c. No comprehensive disclosure requirements for variable-
rate mortgage transactions presently are in effect under the 
regulations of the other Federal financial institution supervisory 
agencies, as discussed above.
20(d) Periodic Statement for Negative Amortization Loans
    The Board proposes to require creditors to provide periodic 
statements for payment option ARMs with a negative amortization feature 
that are secured by real property or a dwelling. Such ARMs permit 
consumers to choose the amount paid (above a specified minimum) each 
period. In 2006, the Board, the OCC, the OTS, the FDIC, and the NCUA 
expressed concerns about

[[Page 43274]]

consumer understanding of how such loans function and of the effect of 
negative amortization on a loan's balance in the Interagency Guidance 
on Nontraditional Mortgage Product Risks issued in 2006. 71 FR 58609; 
October 4, 2006. The agencies issued related sample illustrations that 
include a payment summary table showing the impact of various payment 
options on the loan balance that creditors may include with periodic 
statements for payment option ARMs. 72 FR 31825, 31831; Jun. 8, 2007. 
The illustrations were not consumer-tested. The Board's proposed model 
table showing payment options is similar to the summary table the 
agencies issued but has been revised based on consumer testing.
    Payment option ARMs are complex products. Most participants in the 
Board's consumer testing were unfamiliar with such loans and with 
negative amortization generally. These loans present consumers with 
choices each month, and how the consumer exercises his or her choice 
may result in negative amortization and much higher payments when the 
consumer must begin to make fully amortizing payments or a balloon 
payment. The Board believes that consumers should be informed of the 
consequences of making minimum payments on such a loan. Thus, the Board 
proposes to require creditors to provide a periodic statement that 
describes a consumer's payment options and the effects of making 
payments in those amounts.\45\
---------------------------------------------------------------------------

    \45\ The Federal financial institution supervisory agencies (the 
Board, the OCC, the OTS, the FDIC, and the NCUA (collectively, the 
agencies)) expressed concerns about consumer understanding of how 
such loans function and of the effect of negative amortization on a 
loan's balance in the Interagency Guidance on Nontraditional 
Mortgage Product Risks issued in 2006. 71 FR 58609; October 4, 2006. 
The agencies issued related sample illustrations that include a 
payment summary table showing the impact of various payment options 
on the loan balance that creditors may include with periodic 
statements for payment option ARMs. 72 FR 31825, 31831; Jun. 8, 
2007. Proposed Sec.  226.20(d) requires creditors to provide 
periodic statements that disclose payment options in the form of a 
table. The proposed model table is similar to the summary table the 
agencies issued but has been revised based on consumer testing.
---------------------------------------------------------------------------

20(d)(1) Timing and Content of Disclosures
    For closed-end transactions secured by real property or a dwelling 
that permit the consumer to select among multiple payment options that 
include an option that results in negative amortization, proposed Sec.  
226.20(d) requires creditors to provide a periodic statement that 
discloses payment options not later than fifteen business days before a 
payment is due. Where payment at a new level is due, however, proposed 
Sec.  226.20(c) requires creditors to provide an ARM adjustment notice 
no later than 60 days beforehand, as discussed above.
20(d)(1)(i) Payment
    Proposed Sec.  226.20(d)(1)(i) would require creditors to disclose, 
based on the interest rate in effect at the time the disclosure is 
made, the payment amount required to: (1) Pay off the loan balance in 
full by the end of the term through regular periodic payments, without 
a balloon payment; (2) prevent negative amortization, if the legal 
obligation explicitly permits the consumer to elect to pay interest 
only without paying principal; and (3) pay the minimum payment required 
under the legal obligation. Under the proposed rule, creditors would 
provide each disclosure as applicable. For example, if the terms of the 
loan obligation did not provide the option for consumers to make 
interest-only payments, creditors would disclose only the required 
minimum payment and the fully amortizing payment.
    In consumer testing conducted for the Board, participants generally 
understood the options presented in the table. Most were able to 
understand that making the minimum required payment would cause their 
loan balance to grow. They also understood that making a fully 
amortizing payment would be a safe choice and would pay their loan 
balance off over time.
    Proposed comment 20(d)(1)-1 clarifies that creditors must provide a 
summary table under Sec.  226.20(d) for covered loans that allow a 
consumer to choose to make a payment that results in negative 
amortization even if the initial payments required do not negatively 
amortize the loan. Proposed comment 20(d)(1)-1 states that a payment 
summary table need only contain those disclosures that apply to payment 
options available to a consumer, however. For example, the proposed 
comment states that if a negatively amortizing loan recasts and a 
consumer must begin to make fully amortizing payments, the payment 
summary table need not disclose payments other than the fully 
amortizing payment.
    Proposed comment 20(d)(1)-2 states that creditors may base all 
disclosures on the assumption that payments will be made on time and in 
the amounts required by the terms of the legal obligation, disregarding 
any possible inaccuracies resulting from consumers' payment patterns. 
This is consistent with existing comment 17(c)(2)(i)-3 and proposed 
revisions to comment 17(c)(1)-1, discussed above. Proposed comment 
20(d)(1)-2 clarifies, however, that creditors may not base disclosures 
for loans with a negatively amortizing feature on the fully amortizing, 
interest-only, or other payment unless that payment is the amount the 
consumer is required to pay under the legal obligation. Finally, 
proposed comment 20(d)(1)(i)-1 states that creditors may rely on 
comment 38(c)(5)-1 to determine whether a payment is a regular periodic 
payment or a balloon payment.
20(d)(1)(ii) Effects
    Proposed Sec.  226.20(d)(1)(ii) requires creditors to disclose the 
effects of making payments in the amounts required to be disclosed 
under proposed Sec.  226.20(d). Appendix H-4(L) contains a proposed 
model form with accessible language on fully amortizing payments, 
interest-only payments, and negatively amortizing minimum payments. 
First, the model form states that a fully amortizing payment will cover 
all the interest owed in a particular payment plus some principal and 
decrease the loan balance and that if the consumer regularly makes the 
fully amortizing payment the consumer will pay off the loan on 
schedule. Second, the model form states that an interest-only payment 
will cover all the interest owed in a particular payment but none of 
the principal, that the consumer's balance will remain the same, and 
that if the consumer regularly makes interest-only payments the 
consumer will have to make larger payments as early as a specified 
date. Third, the model form states that a minimum payment will cover 
only part of the interest owed in a particular payment and result in a 
specified amount of unpaid interest being added to the loan balance and 
that if the consumer makes a minimum payment the consumer in effect 
will be borrowing more money and will lose home equity. Further, the 
model form states that if a consumer regularly makes minimum payments 
the consumer will have to make significantly larger payments as early 
as a specified date.
    Proposed comment 20(d)(1)(ii)-1 states that the disclosures 
required by Sec.  226.20(d) must be consistent with the terms of the 
legal obligation. For example, the proposed comment clarifies that 
disclosures may not state that making fully amortizing payments on an 
interest-only loan will reduce a consumer's loan balance if the 
creditor will not apply payments that exceed the interest-only payment 
to principal.

[[Page 43275]]

20(d)(1)(iii) Unpaid Interest
    Proposed Sec.  226.20(d)(1)(iii) requires creditors to disclose the 
amount that will be added to the loan balance due to unpaid interest, 
if the consumer elects to make a payment that results in negative 
amortization.
20(d)(2) Format of Disclosures
    Proposed Sec.  226.20(d)(2)(i) requires that periodic statements 
for loans with a negative amortization feature contain payment 
disclosures with content substantially similar to the content of Form 
H-4(L) in Appendix H. Further, the proposed provision requires 
creditors to make payment disclosures in a payment summary table with 
headings, content, and format substantially similar to Form H-4(L). 
Proposed Sec.  226.20(d)(2)(ii) requires that disclosures be placed in 
a prominent location (that is, located on the first page and on the 
front side of the disclosure statement, as clarified by proposed 
comment 37(d)(1)-1), with one exception. Under proposed Sec.  
226.20(d)(2)(ii), if the payment disclosures required by Sec.  
226.20(d) are made together with the ARM adjustment disclosures 
required by Sec.  226.20(c), the payment disclosures must be located 
directly below the ARM adjustment disclosures.
    Proposed Sec.  226.20(d)(2)(iii) requires that the table required 
by Sec.  226.20(d)(2)(i) contain only the information required by Sec.  
226.20(d)(1). Other information may be presented with the table under 
the proposed rule, provided that such information appears outside of 
the required table.
    Alternatives not proposed. The Board is proposing to apply the 
requirement to provide periodic statements that contain a payment 
summary table, for payment option ARMs with a negative amortization 
feature that are secured by real property or a dwelling. The Board 
considered requiring periodic statements for all loans secured by real 
property or a dwelling. The Board is not proposing such a requirement, 
however. It is not clear that a monthly statement on a fixed-rate 
mortgage or an ARM without payment options would provide sufficient 
benefits to consumers to offset the costs of providing statements. For 
these loans, the consumer cannot exercise any choice in payments. 
Moreover, creditors must give borrowers advance notice each time the 
required payment for a variable-rate transaction adjusts, under Sec.  
226.20(c), as discussed above. Servicers send borrowers with escrow 
accounts annual statements under RESPA. Some servicers send additional 
escrow notices more frequently, for example quarterly. Those statements 
assist consumers in monitoring account changes related to changes in 
taxes or property insurance costs.
20(e) Creditor-Placed Property Insurance
    Creditor-placed property insurance requirements. The security 
instrument or promissory note typically contains a requirement that the 
consumer maintain insurance on the property securing the loan, such as 
the consumer's dwelling or automobile. If the consumer fails to 
maintain the insurance or the insurance is cancelled, the credit 
agreement typically authorizes the creditor to obtain such insurance at 
the consumer's expense. The premium becomes additional debt of the 
consumer. This practice is known as ``creditor-placed property 
insurance.''
    Industry reports indicate that the volume of creditor-placed 
property insurance premiums has increased significantly in the past few 
years.\46\ Consumers struggling financially may fail to pay required 
property insurance premiums unaware that the creditor has the right to 
obtain such insurance on their behalf and add the premiums to the 
outstanding loan balance.\47\ In some instances, creditors have 
improperly obtained property insurance when they arguably knew or 
should have known that the consumer already had insurance.\48\ 
Generally, creditor-placed insurance is more costly and provides less 
coverage than insurance that a consumer purchases through an insurance 
agent.\49\
---------------------------------------------------------------------------

    \46\ See, e.g., Consumer Credit Industry Association, Fact Book 
of Credit-Related Insurance at 1 (2007) (finding that the 2007 
volume of creditor-placed property insurance premiums was over twice 
the 2002 amount).
    \47\ See State of Wisconsin, Office of the Commissioner of 
Insurance, ``Force-Placed'' Insurance Surprises Those Who Let 
Policies Lapse (May 30, 2002) available at http://oci.wi.gov/pressrel/0502home.htm (``Many people don't realize that if they let 
that [homeowner's] insurance lapse, banks and other lenders can 
legally re-insure their home loan by buying insurance to replace it 
and making the homebuyer pay for it.'').
    \48\ See, e.g., United States of America v. Fairbanks Capital 
Corp., Civ. Action No. 03-12219-DPW, Complaint at ] 17 (D. Mass. 
Nov. 12, 2003) (finding that Fairbanks improperly obtained property 
insurance when it knew or should have known that borrowers already 
had insurance); Ocwen Federal Bank FSB, OTS Docket No. 04592, 
Supervisory Agreement, OTS Docket No. 04592 (Apr. 19, 2004) 
(requiring the bank to take reasonable actions to determine whether 
appropriate hazard insurance is already in place before it obtained 
creditor-placed property insurance).
    \49\ See, e.g., Webb, et al. v. Chase Manhattan Mortgage Corp., 
No. 2:05-CV-0548, 2008 U.S. Dist. LEXIS 42559, at *15 (S.D. Ohio May 
28, 2008) (finding that the creditor-placed property insurance 
premium was four times higher than the plaintiff's original premium 
and did not cover personal property or provide coverage for personal 
liability or medical payments to others).
---------------------------------------------------------------------------

    Currently, there is no provision in Regulation Z or federal law 
that requires the creditor to provide notice of the cost to the 
consumer before charging the consumer for creditor-placed property 
insurance. It appears that only a few states require creditors to 
provide notice, and these requirements differ. Under Michigan law, for 
example, a creditor may not impose charges on a debtor for creditor-
placed property insurance unless the creditor provides two notices and 
allows the borrower a total of 30 days to provide evidence of 
insurance.\50\ New Mexico law, on the other hand, simply requires the 
insurer to provide notice to the debtor within 15 days after the 
placement or renewal of creditor-placed property insurance.\51\ The 
majority of states have no notice requirement. The servicing guidelines 
of Fannie Mae and Freddie Mac also vary greatly. Fannie Mae's 
guidelines state that the servicer ``should'' provide the borrower with 
at least one written notice and a total of at least 60 days to provide 
evidence of insurance before charging for creditor-placed property 
insurance.\52\ Freddie Mac's guidelines do not require the servicer to 
provide notice to the borrower.\53\
---------------------------------------------------------------------------

    \50\ Mich. Comp. Laws Sec.  500.1625 (2009).
    \51\ N.M. Admin. Code Sec.  13.18.3.17 (2009).
    \52\ Fannie Mae Single-Family Servicing Guide, Part II, Ch. 6 
Lender-Placed Property Insurance (2005).
    \53\ Freddie Mac Single-Family Seller/Servicer Guide, Vol. 2, 
Sec.  58.9 Special Insurance Requirements and Changes in Insurance 
Requirements (2007).
---------------------------------------------------------------------------

    In order to ensure that consumers are informed of the cost of 
creditor-placed property insurance, the Board proposes to use its 
authority under TILA Section 105(a), 15 U.S.C. 1604(a), to add Sec.  
226.20(e) to require the creditor to provide notice of the cost and 
coverage of creditor-placed property insurance before charging the 
consumer for such insurance. In addition, proposed Sec.  226.20(e)(4) 
would require the creditor to provide the consumer with evidence of 
creditor-placed property insurance within 15 days of imposing a charge 
for such insurance. Proposed Sec.  226.20(e)(1) would define 
``creditor-placed property insurance'' as ``property insurance coverage 
obtained by the creditor when the property insurance required by the 
credit agreement has lapsed.'' Section 226.20(e) would apply to secured 
closed-end loans, including mortgage and automobile loans. The Board 
solicits comment as to whether this rule should also apply to HELOCs.
    Proposed Sec.  226.20(e)(2) contains three conditions for charging 
for creditor-

[[Page 43276]]

placed property insurance. First, proposed Sec.  226.20(e)(2)(i) would 
require the creditor to make a reasonable determination that the 
required property insurance had lapsed. Second, proposed Sec.  
226.20(e)(2)(ii) would require the creditor to mail or deliver to the 
consumer a written notice containing the information required by the 
proposed rule at least 45 days before a charge is imposed on the 
consumer for the creditor-placed property insurance. Finally, proposed 
Sec.  226.20(e)(2)(iii) would permit the creditor to charge the 
consumer if, during the 45-day notice period, the consumer did not 
provide the creditor with evidence of adequate property insurance.
    Notice period timing and charges. Under the proposed rule, the 
creditor would have to mail or deliver to the consumer the required 
written notice at least 45 days before charging the consumer for the 
cost of creditor-placed property insurance. This 45-day notice period 
is consistent with the 45-day notice period required by the Flood 
Disaster Protection Act of 1973 Section 102(e), 42 U.S.C. 4012a(e), and 
represents the midpoint between State law 30-day notice periods \54\ 
and the 60-day Fannie Mae Servicing Guide recommendation.\55\ The Board 
notes that the provision in the Fannie Mae Servicing Guide is stated as 
a recommendation, but not a requirement. The Board believes that a 45-
day notice period would allow the consumer reasonable time to shop for 
and provide evidence of insurance. The Board recognizes that it may 
take several days for the consumer to receive a notice sent by mail, 
but the consumer would still have at least one calendar month in which 
to shop for and purchase property insurance. Comment is solicited, 
however, on whether a different time period would better serve the 
needs of consumers and creditors.
---------------------------------------------------------------------------

    \54\ See Ark. Code Ann. Sec.  23-101-113 (2008); Mich. Comp. 
Laws Sec.  500.1625 (2009); Miss. Code Ann. Sec.  83-54-25 (2008); 
Tenn. Code Ann. Sec.  56-49-113 (2009).
    \55\ Fannie Mae Single-Family Servicing Guide, Part II, Ch. 6 
Lender-Placed Property Insurance (2005).
---------------------------------------------------------------------------

    Proposed comment 20(e)-1 would make clear that if the creditor 
complies with Sec.  226.20(e), the creditor could charge the consumer 
for creditor-placed insurance as of the 46th day after sending the 
notice to the consumer. For example, a creditor that mails the required 
notice on January 2, 2011, may begin to charge the consumer for the 
cost of the creditor-placed property insurance on February 18, 2011. 
Proposed comment 20(e)-1 would also clarify that the creditor may 
charge the consumer for the cost of any required property insurance 
obtained during the 45-day notice period if such charge is not 
prohibited by applicable State or other law.
    Content and format of notice. Proposed Sec.  226.20(e)(3) would 
require the creditor to provide the written notice clearly and 
conspicuously. Proposed Sec.  226.20(e)(3)(i) would require that the 
notice contain the creditor's name and contact information, the loan 
number, and the address or description of the property securing the 
credit transaction. The Board solicits comment as to whether the 
creditor should be required to establish a local or toll-free telephone 
number for the consumer to contact the creditor.
    Under proposed Sec.  226.20(e)(ii)-(viii), the notice would also 
need to contain the following statements: (1) That the consumer is 
obligated to maintain insurance on the property securing the credit 
transaction; (2) that the required property insurance has lapsed; (3) 
that the creditor is authorized to obtain the property insurance on the 
consumer's behalf; (4) the date the creditor can charge the consumer 
for the cost of the creditor-placed property insurance; (5) how the 
consumer may provide evidence of property insurance; (6) the cost of 
the creditor-placed property insurance stated as an annual premium, and 
that this premium is likely significantly higher than a premium for 
property insurance purchased by the consumer; and (7) that the 
creditor-placed insurance may not provide as much coverage as 
homeowner's insurance. The Board solicits comment on whether the notice 
should also contain statements, if applicable, that the creditor will 
receive compensation for obtaining creditor-placed property insurance 
and that the creditor will establish an escrow account to pay for the 
creditor-placed insurance premium. Although such statements would be 
informative, the Board is concerned that providing these additional 
disclosures could result in information overload for the consumer. A 
Model Clause is proposed at Appendix H-18.
    The Board proposes to use its authority under TILA Section 105(a), 
15 U.S.C. 1604(a), to add Sec.  226.20(e) to require the creditor to 
provide notice before charging the consumer for the cost of creditor-
placed property insurance. TILA Section 105(a), 15 U.S.C. 1604(a), 
authorizes the Board to prescribe regulations to carry out the purposes 
of the act. TILA's purpose includes promoting ``the informed use of 
credit,'' which ``results from an awareness of the cost thereof by 
consumers.'' TILA Section 102(a), 15 U.S.C. 1601(a). Currently, few 
consumers are aware of the cost or coverage of creditor-placed property 
insurance, or that the premiums become additional debt of the consumer. 
The Board believes that this proposed rule would inform consumers of 
the cost and coverage of the creditor-placed property insurance and 
avoid the uninformed use of credit. In addition, this proposed rule 
would not prohibit the creditor from charging for creditor-placed 
property insurance, but would simply delay the charge until the 
consumer has been provided sufficient notice of the cost and sufficient 
time to shop for his or her own homeowner's insurance.

Section 226.25 Record Retention

25(a) General Rule
    Section 226.25(a) provides that creditors must retain records to 
evidence compliance with Regulation Z for two years. As discussed in 
detail below, the Board is proposing to add a new comment to Sec.  
226.25(a) to provide guidance on record retention requirements relating 
to proposed Sec.  226.36(d)(1), which would prohibit any person from 
paying compensation to a loan originator based on any of the terms or 
conditions of the transaction. Proposed comment 25(a)-5 would provide 
that, to evidence compliance with proposed Sec.  226.36(d)(1), a 
creditor must retain for each covered transaction a record of the 
agreement between it and the loan originator that governs the 
originator's compensation and a record of the amount of compensation 
actually paid to the originator in connection with the transaction.

Section 226.27 Language of Disclosures

    Currently, Sec.  226.27, permits TILA disclosures in a language 
other than English as long as the disclosures are provided in English 
upon the consumer's request. Many consumers do not speak English or 
speak English as a second language. According to the 2000 Census, at 
least 18% of the population (47 million people) speak a language other 
than English at home.\56\ To protect non-native English speakers from 
fraud and discrimination in credit transactions, recent enforcement 
actions have required that creditors or mortgage brokers provide 
translations of presentations, disclosures, or documents.\57\ Moreover, 
several states

[[Page 43277]]

have enacted laws to require credit disclosures or documents in Spanish 
or other foreign languages.\58\ In 2006, Fannie Mae and Freddie Mac 
announced the availability of non-executable Spanish translations of 
the Fannie Mae/Freddie Mac Uniform Instrument to help the residential 
mortgage industry better serve Spanish-speaking consumers.\59\ Finally, 
Congress recently asked the General Accounting Office to conduct a 
study examining the relationship between fluency in English and 
financial literacy, and the extent, if any, to which individuals whose 
native language is not English are impeded in the conduct of their 
financial affairs.\60\
---------------------------------------------------------------------------

    \56\ U.S. Census Bureau, Language Use and English-Speaking 
Ability: 2000 at 2 (Oct. 2003), available at http://www.census.gov/prod/2003pubs/c2kbr-29.pdf.
    \57\ See, e.g., In the Matter of First Mariner Bank, Baltimore, 
Maryland, FDIC-07-285b, FDIC-08-358k, Consent Agreement at 5 (April 
22, 2009) (alleging that the bank discriminated against Hispanics, 
African-Americans, and women by charging them higher prices for 
residential mortgage loans and requiring the bank to provide 
financial literacy courses in English and Spanish); Fed. Trade 
Comm'n v. MortgagesParaHispanos.com and Daniel Moises Goldberg, Civ. 
Action No. 4:06cv19, Final Judgment and Order at 5 (E.D. Tex. Sept. 
27, 2006) (alleging that the mortgage broker misrepresented the 
mortgage terms to Spanish-speaking consumers and requiring the 
broker to provide a disclosure and consumer education brochure in 
Spanish to any consumer if they have reason to believe that the 
consumer's primary language is Spanish); In re Ameriquest Mortgage 
Co., et al., Settlement Agreement at 17-18 (Jan. 23, 2006) 
(requiring documents and disclosures to be translated to Spanish or 
to any language in which Ameriquest advertises).
    \58\ Ariz. Rev. Stat. Sec.  6-631 (requiring a consumer loan 
lender to provide a notice in English and Spanish that the consumer 
may request the TILA disclosure in Spanish); Cal. Civ. Code Sec.  
1632 (requiring any person engaged in a trade or business who 
negotiates certain transactions primarily in Spanish, Chinese, 
Tagalog, Vietnamese, or Korean to deliver a translation of the 
contract in the language in which the contract was negotiated); DC 
Code Ann. Sec.  26-1113 (requiring a post-application mortgage 
disclosure to be provided in the language of the mortgage lender's 
presentation to the borrower); 815 Ill. Comp. Stat. Ann. 122/2-20 
(requiring payday lenders to provide consumers with a written 
disclosure in English and in the language in which the loan was 
negotiated); Tex. Fin. Code Ann. Sec.  341.502 (requiring that the 
TILA disclosure be provided in Spanish if the terms for the consumer 
loan, retail installment transaction, or home equity loan were 
negotiated in Spanish).
    \59\ News Release, Fannie Mae and Freddie Mac Offer Mortgage 
Documents in Spanish to Aid Lenders and Industry Partners with 
Helping More Hispanics Become Homeowners; Collaborative Effort Aimed 
at Helping Close the Hispanic and Overall Minority Homeownership 
Gaps (Sept. 25, 2006), available at http://www.fanniemae.com/newsreleases/2006/3803.jhtml?p=Media&s=News+Releases.
    \60\ Credit CARD Act of 2009, Public Law 111-24, Sec.  513, 123 
Stat. 1734, 1765 (2009).
---------------------------------------------------------------------------

    Consumer advocates are concerned that consumers who do not speak 
English or speak English as a second language may be more susceptible 
to abusive credit practices or offered less favorable credit terms or 
products because they are not provided with disclosures they can 
understand. Industry representatives, on the other hand, raise concerns 
about the cost and burden of translating documents into multiple 
foreign languages and the potential liability for inaccurate 
translations. Both consumer advocates and industry representatives 
question whether consumers who speak minority languages will still have 
access to credit if creditors have to bear the cost and liability for 
translating documents into little-known languages. Creditors may be 
reluctant to engage in outreach to consumers who speak those languages.
    The Board solicits comment on whether it should use its rulemaking 
authority to require creditors to provide translations of credit 
disclosures. Comment is requested on whether the failure to provide 
credit disclosure translations is unfair or deceptive, or impedes the 
informed use of credit. Comment is also requested on potential 
litigation issues, such as whether a translation would be admissible 
into evidence or whether an inaccurate translation would toll TILA's 
statute of limitations or extend the right of rescission. Finally, 
comment is requested on the effectiveness of State laws that require 
translations of disclosures or documents and whether the Board should 
adopt similar regulations.
    The Board requests comment on the following translation issues:
     What is the scope of the problem? That is, approximately 
how many consumers do not understand TILA disclosures because of 
language barriers?
     Should creditors be required to provide consumers with 
translations of required TILA disclosures? If such translations were 
required, what should be the trigger for such disclosures (e.g., the 
language of the negotiation, the language of the creditor's 
presentation, the language of the creditor's advertisement, a consumer 
request)?
     Should there be an exception for consumers who are 
accompanied by an interpreter?
     Would a translation requirement negatively affect 
consumers and the type and terms of credit offered because creditors 
would be reluctant to risk liability for engaging in transactions in a 
language other than English?
    Finally, the Board solicits comment on the following coverage 
issues:
     Should a translation requirement apply only to mortgages 
loans, or also to other types of credit products, such as auto loans or 
credit cards?
     Should a translation requirement apply only to the TILA 
disclosures provided before or at consummation, or to any credit 
disclosures or documents provided before, at, or subsequent to 
consummation?
     Should a translation requirement apply to Web sites that 
provide early TILA disclosures?
     Should a translation requirement apply only to one or a 
few languages, or should it apply to any foreign language?

Section 226.32 Requirements for Certain Closed-End Mortgages

32(b) Definitions
32(b)(1)
    Section 226.32(b)(1) defines the ``point and fees'' used to 
determine whether a loan is a HOEPA loan. That definition consists of 
four elements: (i) All items required to be disclosed under Sec.  
226.4(a) and 226.4(b), except interest or the time-price differential; 
(ii) All compensation paid to mortgage brokers; (iii) All items listed 
in Sec.  226.4(c)(7) (other than amounts held for future payment of 
taxes) unless the charge is reasonable, the creditor receives no direct 
or indirect compensation in connection with the charge, and the charge 
is not paid to an affiliate of the creditor; and (iv) Premiums or other 
charges for credit life, accident, health, or loss-of-income insurance, 
or debt-cancellation coverage (whether or not the debt-cancellation 
coverage is insurance under applicable law) that provides for 
cancellation of all or part of the consumer's liability in the event of 
the loss of life, health, or income or in the case of accident, written 
in connection with the credit transaction. In light of the changes to 
the finance charge under proposed Sec.  226.4, discussed above, the 
Board is proposing technical amendments to this provision.
    The reference to ``items required to be disclosed under Sec.  
226.4(a) and 226.4(b), except interest or the time-price differential'' 
in Sec.  226.32(b)(1)(i) implements TILA Section 103(aa)(4)(A). That 
provision includes in points and fees ``all items included in the 
finance charge, except interest or the time-price differential.'' 15 
U.S.C. 1602(aa)(4)(A). Thus, ``items required to be disclosed under 
Sec.  226.4(a) and 226.4(b)'' is intended to capture the finance 
charge. Section 226.32(b)(1)(ii) and (iii) parallel the additional 
elements in TILA Section 103(aa)(4)(B) and (C). See 15 U.S.C. 
1602(aa)(4)(B) and (C). Finally, TILA Section 103(aa)(4)(D) provides 
for the inclusion of such other charges as the Board determines to be 
appropriate. 15 U.S.C. 1602(aa)(4)(D). Pursuant to that authority, in 
Sec.  226.32(b)(1)(iv), the Board included credit insurance premiums 
and debt cancellation coverage fees. Thus, the statutory definition 
reflects Congress's intent to

[[Page 43278]]

include in points and fees mortgage broker compensation, certain real-
estate related fees, and the insurance charges added by the Board, even 
if those items would be excluded from the finance charge under other 
applicable rules.
    Under TILA Section 103(aa)(1), HOEPA applies to certain 
transactions that are secured by a consumer's principal dwelling. 15 
U.S.C. 1602(aa)(1). Proposed Sec.  226.4(g), and therefore the more 
inclusive definition of finance charge it would create, would apply to 
any transaction secured by real property or a dwelling. Consequently, 
all loans that are potentially subject to HOEPA would be subject to the 
proposed ``but for'' finance charge definition. Under that definition, 
the items included under the points and fees definition in addition to 
the finance charge (other than interest or the time-price differential) 
would never be excluded from the finance charge for transactions 
secured by real property or a dwelling.
    The Board believes that proposed Sec.  226.4 would render Sec.  
226.32(b)(1)(ii) through (iv) unnecessary because all items included in 
points and fees under those provisions already would be included as 
part of the finance charge. To eliminate unnecessary complexity, the 
Board proposes to streamline Sec.  226.32(b)(1) by deleting those 
additional elements. The Board also proposes to revise Sec.  
226.32(b)(1) to provide that points and fees means all items included 
in the finance charge pursuant to Sec.  226.4, except interest or the 
time-price differential, instead of Sec.  226.32(b)(1)(i)'s reference 
to ``items required to be disclosed under Sec.  226.4(a) and 
226.4(b).'' This change would reflect the language of TILA more closely 
and is not meant to effect any substantive change to HOEPA's coverage.
32(c) Disclosures
32(c)(1) Notices
    For HOEPA loans, TILA Sections 129(a)(1)(A) and (B), 15 U.S.C. 
1639(a)(1)(A) and (B), and Sec.  226.32(c)(1), require the creditor to 
provide the following disclosures in conspicuous type size: ``You are 
not required to complete this agreement merely because you have 
received these disclosures or have signed a loan application. If you 
obtain this loan, the lender will have a mortgage on your home. You 
could lose your home, and any money you have put into it, if you do not 
meet your obligations under the loan.'' The first sentence is a ``no 
obligation'' statement to inform the consumer that the space for the 
consumer's signature that may be on the credit application does not 
obligate the consumer to accept the terms of the loan. The next two 
sentences are ``security interest'' disclosures to inform the consumer 
of the potential consequences when the creditor takes a security 
interest in the consumer's home. Comment 32(c)(1)-1 states that these 
disclosures need not be in a particular format or part of the note or 
mortgage document. A Model Clause is currently provided at Appendix H-
16.
    As discussed more fully in Sec.  226.38(f)(1), the MDIA amended 
TILA Section 128(b)(2), 15 U.S.C. 1638(b)(2), to require the creditor 
to provide the following ``no obligation'' statement on the TILA 
disclosure: ``You are not required to complete this agreement merely 
because you have received these disclosures or signed a loan 
application.'' Based on consumer testing, the Board proposes to use its 
adjustments and exception authority under TILA Section 105(a), 15 
U.S.C. 1604(a), to modify the specific wording on the disclosure. 
Proposed Sec.  226.38(f)(1) would require the creditor to provide a 
statement that the consumer has no obligation to accept the loan, and, 
if the creditor provides space for a consumer's signature, a statement 
that a signature by the consumer only confirms receipt of the 
disclosure statement. During consumer testing, participants' 
comprehension improved when they reviewed the plain-language version of 
the clause.
    Similarly, based on consumer testing, the Board proposes to use its 
adjustments and exception authority under TILA Section 105(a), 15 
U.S.C. 1604(a), to require the creditor under proposed Sec.  
226.32(c)(1) to provide the following ``no obligation'' statement in 
connection with a HOEPA loan: ``You have no obligation to accept this 
loan. Your signature below only confirms that you have received this 
form.'' TILA Section 105(a), 15 U.S.C. 1604(a), states that the Board 
``may provide for such adjustments * * * as in the judgment of the 
Board are necessary or proper to effectuate the purposes of [TILA]''. 
One of the purposes of TILA is to promote the informed use of credit. 
TILA Section 102(a), 15 U.S.C. 1601(a). Consumer testing showed that 
the ``no obligation'' language improved participants' understanding of 
the key point that signing or accepting a disclosure did not obligate 
the consumer to accept the terms of the loan.
    In addition, the Board proposes to use its adjustments and 
exception authority under TILA Section 105(a), 15 U.S.C. 1604(a), to 
require the creditor under proposed Sec.  226.32(c)(1) to provide the 
following ``security interest'' statement in connection with a HOEPA 
loan: ``If you are unable to make the payments on this loan, you could 
lose your home.'' As discussed more fully in Sec.  226.38(f)(2), 
consumer testing showed that participant comprehension of this 
disclosure improved when the plain-language version of the ``security 
interest'' disclosure was used. The Board believes that the plain-
language versions of the ``no obligation'' and ``security interest'' 
disclosures will better inform consumers who are considering obtaining 
HOEPA loans.
    The proposal would delete comment 32(c)(1)-1 and require these 
statements to be in bold text and a minimum 10-point font, consistent 
with proposed Sec. Sec.  226.37 and 226.38. A revised Model Clause is 
proposed at Appendix H-16.
32(c)(5) Amount Borrowed
    For HOEPA mortgage refinancing loans, Sec.  226.32(c)(5) requires 
the creditor to disclose the amount borrowed, and states that ``where 
the amount borrowed includes premiums or other charges for optional 
credit insurance or debt-cancellation coverage, that fact shall be 
stated, grouped together with the disclosure of the amount borrowed.'' 
In the December 2008 Open-End Final Rule, the existing rules for credit 
insurance and debt cancellation coverage were applied to debt 
suspension coverage for purposes of excluding a charge for debt 
suspension coverage from the finance charge. See 74 FR 5244, 5255; Jan. 
29, 2009. In the final rule, the Board stated that ``[d]ebt 
cancellation coverage and debt suspension coverage are fundamentally 
similar to the extent they offer a consumer the ability to pay in 
advance for the right to reduce the consumer's obligations under the 
plan on the occurrence of specified events that could impair the 
consumer's ability to satisfy those obligations.'' 74 FR 5266. The 
Board also noted that the two products are different because debt 
cancellation coverage cancels the debt while debt suspension merely 
suspends payment of the debt. Id. Despite this difference, the Board 
adopted a final rule treating the two products the same for purposes of 
the finance charge, but adding a special disclosure warning consumers 
of the risks of debt suspension coverage. Id. Consistent with this 
approach, the Board proposes to treat debt suspension coverage in the 
same manner as debt cancellation coverage for purposes of the 
disclosing the amount borrowed for a HOEPA mortgage refinancing loan. 
The Board proposes to revise Sec.  226.32(c)(5) to clarify that where 
the amount borrowed

[[Page 43279]]

includes charges for debt suspension coverage, that fact should be 
stated, grouped together with the disclosure of the amount borrowed. 
Proposed comment 32(c)(5)-1 would also be revised to include a 
reference to debt suspension coverage. Comment is solicited on this 
approach.

Section 226.35 Prohibited Acts or Practices in Connection With Higher-
Priced Mortgage Loans

35(a) Higher-Priced Mortgage Loans
35(a)(2)
    In its final rule implementing new requirements for higher-priced 
mortgage loans, 73 FR 44522; July 30, 2008, the Board adopted the 
``average prime offer rate'' as the benchmark for coverage of new Sec.  
226.35. In so doing, the Board adopted commentary under new Sec.  
226.35(a)(2) regarding the calculation of the average prime offer rate 
and related guidance. Comment 35(a)(2)-4 indicated that the Board 
publishes average prime offer rates and the methodology for their 
calculation on the Internet. The Board is proposing to amend comment 
35(a)(2)-4 to specify where on the Internet the table and methodology 
may be found (http://www.ffiec.gov/hmda).
    The Board also is proposing new comment 35(a)(2)-5 to provide 
additional guidance on determination of applicable average prime offer 
rates for purposes of Sec.  226.35. The comment would clarify that the 
average prime offer rate is defined identically under Sec.  226.35 and 
under Regulation C (HMDA), 12 CFR 203.4(a)(12)(ii). Thus, for purposes 
of both coverage of Sec.  226.35 and coverage of the rate spread 
reporting requirement under Regulation C, 12 CFR 203.4(a)(12)(i), the 
applicable average prime offer rate is identical. The comment would 
clarify further that guidance on the applicable average prime offer 
rate is provided in the staff commentary under Regulation C, the 
Board's A Guide to HMDA Reporting: Getting it Right!, and the relevant 
``Frequently Asked Questions'' on HMDA compliance posted on the FFIEC's 
Web site referenced above.

Section 226.36 Prohibited Acts or Practices in Connection With Credit 
Secured by Real Property or a Consumer's Dwelling

    The Board proposes to amend Sec.  226.36 to extend the scope of the 
section's coverage to all closed-end transactions secured by real 
property or a dwelling. Currently, this section applies to closed-end 
credit transactions secured by a consumer's principal dwelling. As 
revised, Sec.  226.36 would apply to closed-end transactions secured by 
any dwelling, not just a consumer's principal dwelling. This approach 
would be consistent with recent amendments to the TILA effected by the 
MDIA.
36(a) Loan Originator and Mortgage Broker Defined
    As discussed below in more detail, the Board proposes to prohibit 
certain payments to loan originators that are based on a transaction's 
terms and conditions, and also proposes to prohibit loan originators 
from ``steering'' consumers to transactions that are not in their 
interest in order to increase the originator's compensation. 
Accordingly, the Board proposes to amend the regulation to provide a 
definition of ``loan originator'' in Sec.  226.36(a)(1), which would 
include persons who are covered by the current definition of mortgage 
broker but also would include employees of the creditor, who are not 
considered ``mortgage brokers.'' Existing Sec.  226.36(a) defines the 
term ``mortgage broker'' because mortgage brokers are subject to the 
prohibition on coercion of appraisers in Sec.  226.36(b). A revised 
definition of mortgage broker would be designated as Sec.  
226.36(a)(2). The provision of existing Sec.  226.36(a) stating that a 
creditor making a ``table funded'' transaction is considered a mortgage 
broker would be revised for clarity; no substantive change is intended 
other than the expansion of the definition from mortgage broker to loan 
originator. Thus, under proposed Sec.  226.36(a)(1), a creditor that 
does not provide the funds for the transaction at consummation out of 
its own resources, out of deposits held by it, or by drawing on a bona 
fide warehouse line of credit would be considered a loan originator for 
purposes of Sec.  226.36.
36(b) and (c) Misrepresentation of Value of Consumer's Dwelling; 
Servicing Practices
    The Board proposes to amend Sec.  226.36(b) and (c) to reflect the 
expanded scope of coverage of Sec.  226.36, as noted above. Existing 
Sec.  226.36(b) prohibits creditors and mortgage brokers and their 
affiliates from coercing, influencing, or otherwise encouraging 
appraisers to misstate or misrepresent the value of the consumer's 
principal dwelling in connection with a closed-end mortgage 
transaction. Section 226.36(c) currently prohibits certain practices of 
servicers of closed-end consumer credit transactions secured by a 
consumer's principal dwelling. Under this proposal, the rules relating 
to appraiser coercion and loan servicing would apply to all closed-end 
transactions secured by real property or a dwelling, for the reasons 
discussed above.
36(d) Prohibited Payments to Loan Originators
    The Board is proposing to use its authority in HOEPA to prohibit 
unfair or deceptive acts or practices in mortgage lending to restrict 
certain practices related to the payment of loan originators. See TILA 
Section 129(l)(2)(A), 15 U.S.C. 1639(l)(2)(A). For this purpose, a 
``loan originator'' includes both mortgage brokers and employees of 
creditors who perform loan origination functions.
    Specifically, to address the potential unfairness that can arise 
with certain loan originator compensation practices, the proposed rule 
would prohibit a creditor or other party from paying compensation to a 
loan originator based on the credit transaction's terms or conditions. 
This prohibition would not apply to payments that consumers make 
directly to a loan originator. However, if a consumer directly pays the 
loan originator, the proposed rule would prohibit the originator from 
also receiving compensation from any other party in connection with 
that transaction.
    The Board is soliciting comment on an alternative that would allow 
loan originators to receive payments that are based on the principal 
loan amount, which is a common practice today. The Board is also 
soliciting comment on whether it should adopt a rule that seeks to 
prohibit loan originators from directing or ``steering'' consumers to 
loans based on the fact that the originator will receive additional 
compensation, unless that loan is in the consumer's interest. The Board 
is expressly soliciting comment on whether the rule would be effective 
in achieving the stated purpose. Comment is also solicited on the 
feasibility and practicality of such a rule, its enforceability, and 
any unintended adverse effects the rule might have. These proposals and 
alternatives are discussed more fully below.
Background
    In the summer of 2006, the Board held public hearings on home 
equity lending in four cities. During the hearings, consumer advocates 
urged the Board to ban ``yield spread premiums,'' payments that 
mortgage brokers receive from the creditor at closing for delivering a 
loan with an interest rate that is higher than the creditor's ``buy 
rate.'' The consumer advocates asserted that yield spread premiums 
provide brokers an incentive to increase consumers' interest rates

[[Page 43280]]

unnecessarily. They argued that a prohibition would align reality with 
consumers' perception that brokers serve consumers' best interests.
    In light of the information received at the 2006 hearings and the 
rise in defaults that began soon after, the Board held an additional 
hearing in June of 2007 to explore how it could use its authority under 
HOEPA to prevent abusive lending practices in the subprime mortgage 
market while still preserving responsible lending. Although the Board 
did not expressly solicit comment on mortgage broker compensation in 
its notice of the June 2007 hearing, a number of commenters and some 
hearing panelists raised the topic. Consumer and creditor 
representatives alike raised concerns about the fairness and 
transparency of creditors' payment of yield spread premiums to brokers. 
Several commenters and panelists stated that consumers are not aware of 
the payments creditors make to brokers, or that such payments increase 
consumers' interest rates. They also stated that consumers may 
mistakenly believe that a broker seeks to obtain the best interest rate 
available. Consumer groups have expressed particular concern about 
increased payments to brokers for delivering loans both with higher 
interest rates and prepayment penalties. Consumer groups suggested a 
variety of solutions, such as prohibiting creditors paying brokers 
yield spread premiums, imposing on brokers that accept yield spread 
premiums a fiduciary duty to consumers, imposing on creditors that pay 
yield spread premiums liability for broker misconduct, or including 
yield spread premiums in the points and fees test for loans subject to 
HOEPA. Several creditors and creditor trade associations advocated 
requiring brokers to disclose whether the broker represents the 
consumer's interests, and how and by whom the broker is to be 
compensated. Some of these commenters recommended that brokers be 
required to disclose their total compensation to the consumer and that 
creditors be prohibited from paying brokers more than the disclosed 
amount.
    To address these concerns, the Board's January 2008 proposed rule 
would have prohibited a creditor from paying a mortgage broker any 
compensation greater than the amount the consumer had previously agreed 
in writing that the broker would receive. 73 FR 1672, 1698-1700; Jan. 
9, 2008 (HOEPA proposal). In support of the rule, the Board explained 
its concerns about yield spread premiums, which are summarized below.
    A yield spread premium is the present dollar value of the 
difference between the lowest interest rate the wholesale lender would 
have accepted on a particular transaction and the interest rate the 
broker actually obtained for the lender. This dollar amount is usually 
paid to the mortgage broker, though it may also be applied to reduce 
the consumer's upfront closing costs. The creditor's payment to the 
broker based on the interest rate is an alternative to the consumer 
paying the broker directly from the consumer's preexisting resources or 
from loan proceeds. Preexisting resources or loan proceeds may not be 
sufficient to cover the broker's total fee, or may appear to the 
consumer to be a more costly way to finance those costs if the consumer 
expects to prepay the loan in a relatively short period. Thus, 
consumers potentially benefit from having an option to pay brokers for 
their services indirectly by accepting a higher interest rate.
    The Board shares concerns, however, that creditors' payments to 
mortgage brokers are not transparent to consumers and are potentially 
unfair to them. Creditor payments to brokers based on the interest rate 
give brokers an incentive to provide consumers loans with higher 
interest rates. Some brokers may refrain from acting on this incentive 
out of legal, business, or ethical considerations. Moreover, 
competition in the mortgage loan market may often limit brokers' 
ability to act on the incentive. The market often leaves brokers room 
to act on the incentive should they choose, however, especially as to 
consumers who are less sophisticated and less likely to shop among 
either loans or brokers.
    Large numbers of consumers are simply not aware the incentive 
exists. Many consumers do not know that creditors pay brokers based on 
the interest rate, and the current legally required disclosures seem to 
have only limited effect. Some consumers may not even know that 
creditors pay brokers: A common broker practice of charging a small 
part of its compensation directly to the consumer, to be paid from the 
consumer's existing resources or loan proceeds, may lead consumers to 
believe, incorrectly, that this amount is all the consumer will pay or 
that the broker will receive. Consumers who do understand that the 
creditor pays the broker based on the interest rate may not fully 
understand the implications of the practice. They may not appreciate 
the full extent of the incentive the practice gives the broker to 
increase the rate because they do not know the dollar amount of the 
creditor's payment.
    Moreover, consumers often wrongly believe that brokers have agreed, 
or are required, to obtain the best interest rate available. Several 
commenters in connection with the 2006 hearings suggested that mortgage 
broker marketing cultivates an image of the broker as a ``trusted 
advisor'' to the consumer. Consumers who have this perception may rely 
heavily on a broker's advice, and there is some evidence that such 
reliance is common. In a 2003 survey of older borrowers who had 
obtained prime or subprime refinancings, majorities of respondents with 
refinance loans obtained through both brokers and creditors' employees 
reported that they had relied ``a lot'' on their loan originators to 
find the best mortgage for them.\61\ The Board's recent consumer 
testing also suggests that many consumers shop little for mortgages and 
often rely on one broker or lender because of their trust in the 
relationship.
---------------------------------------------------------------------------

    \61\ See Kellie K. Kim-Sung & Sharon Hermanson, Experiences of 
Older Refinance Mortgage Loan Borrowers: Broker- and Lender-
Originated Loans, Data Digest No. 83 (AARP Public Policy Inst., 
Washington, DC, Jan. 2003, at 3, available at http://assets.aarp.org/rgcenter/post-import/dd83_loans.pdf.
---------------------------------------------------------------------------

    If consumers believe that brokers protect consumers' interests by 
shopping for the lowest rates available, then consumers will be less 
likely to take steps to protect their interests when dealing with 
brokers. For example, they may be less likely to shop rates across 
retail and wholesale channels simultaneously to assure themselves the 
broker is providing a competitive rate. They may also be less likely to 
shop and negotiate brokers' services, obligations, or compensation 
upfront, or at all. For example, they may be less likely to seek out 
brokers who will promise in writing to obtain the lowest rate 
available.
    In response to these concerns, the 2008 HOEPA proposal would have 
prohibited a creditor from paying a broker more than the consumer 
agreed in writing to pay. Under the proposal, the consumer and mortgage 
broker would have had to enter into a written agreement before the 
broker accepted the consumer's loan application and before the consumer 
paid any fee in connection with the transaction (other than a fee for 
obtaining a credit report). The agreement also would have disclosed (i) 
that the consumer ultimately would bear the cost of the entire 
compensation even if the creditor paid part of it directly; and (ii) 
that a creditor's payment to a broker could influence the broker to 
offer the consumer loan terms or products that would not be in the 
consumer's interest

[[Page 43281]]

or the most favorable the consumer could obtain.
    Based on the Board's analysis of comments received on the HOEPA 
proposal, the results of consumer testing, and other information, the 
Board withdrew the proposed provisions relating to broker compensation. 
73 FR 44522, 44563-65; July 30, 2008. The Board's withdrawal of those 
provisions was based on its concern that the proposed agreement and 
disclosures could confuse consumers and undermine their decision-making 
rather than improve it. The risks of consumer confusion arose from two 
sources. First, an institution can act as either creditor or broker 
depending on the transaction. At the time the agreement and disclosures 
would have been required, such an institution could be uncertain as to 
which role it ultimately would play. This could render the proposed 
disclosures inaccurate and misleading in some, and possibly many, 
cases. Second, the Board was concerned by the reactions of consumers 
who participated in one-on-one interviews about the proposed agreement 
and disclosures as part of the Board's consumer testing. These 
consumers often concluded, not necessarily correctly, that brokers are 
more expensive than creditors. Many also believed that brokers would 
serve their best interests notwithstanding the conflict resulting from 
the relationship between interest rates and brokers' compensation.\62\ 
The proposed disclosures presented a significant risk of misleading 
consumers regarding both the relative costs of brokers and lenders and 
the role of brokers in their transactions.
---------------------------------------------------------------------------

    \62\ For more details on the consumer testing, see the report of 
the Board's contractor, Macro International, Inc., Consumer Testing 
of Mortgage Broker Disclosures (July 10, 2008), available at http://www.federalreserve.gov/newsevents/press/bcreg/20080714regzconstest.pdf.
---------------------------------------------------------------------------

    In withdrawing the broker compensation provisions of the HOEPA 
proposal, the Board stated it would continue to explore options to 
address potential unfairness associated with loan originator 
compensation arrangements, such as yield spread premiums. The Board 
indicated it would consider whether disclosures or other approaches 
could effectively remedy this potential unfairness without imposing 
unintended consequences.
Potential for Unfairness in Loan Originator Compensation Practices
    As noted above, the Board is now proposing rules to prohibit 
certain practices relating to payments made to compensate mortgage 
brokers and other loan originators. These rules would be adopted 
pursuant to the Board's authority under HOEPA, as contained in TILA 
Section 129(l), which authorizes the Board to prohibit acts or practice 
in connection with mortgage loans that the Board finds to be unfair or 
deceptive. As discussed in part IV above, in considering whether a 
practice is unfair or deceptive under TILA Section 129(l), the Board 
has generally relied on the standards that have been adopted for 
purposes of Section 5(a) of the FTC Act, 15 U.S.C. 45(a), which also 
prohibits unfair and deceptive acts and practices.
    For purposes of the FTC Act, an act or practice is considered 
unfair when it causes or is likely to cause substantial injury to 
consumers that is not reasonably avoidable by consumers themselves and 
not outweighed by countervailing benefits to consumers or to 
competition. As explained below, the practice of basing a loan 
originator's compensation on the credit transaction's terms or 
conditions appears to meet these standards and constitute an unfair 
practice. Furthermore, based on its experience with consumer testing, 
particularly in connection with the HOEPA proposal, the Board believes 
that disclosure alone would be insufficient for most consumers to avoid 
the harm caused by this practice. Thus, the Board is proposing a rule 
that would remedy the practice through substantive regulations that 
prohibit particular practices.
    Specifically, under proposed Sec.  226.36(d)(1), compensation 
payments made to a mortgage broker or any other loan originator based 
on a mortgage transaction's terms or conditions would be prohibited. 
Unlike the 2008 HOEPA proposal, the rule would also apply to creditors' 
employees who originate loans. As noted above, such payments when made 
to a mortgage broker are commonly referred to as yield spread premiums. 
There are analogous payments made by creditors to their employees who 
originate loans at a higher interest rate than the minimum rate 
required by the creditor. This arrangement is frequently referred to as 
an ``overage.'' For convenience, the discussion below uses the term 
``yield spread premium'' also to refer to these types of payments, 
which would be covered by the proposed rule as well.
    Substantial injury. When loan originators receive compensation 
based on a transaction's terms and conditions, they have an incentive 
to provide consumers loans with higher interest rates or other less 
favorable terms. Yield spread premiums, therefore, present a 
significant risk of economic injury to consumers. Currently, such 
injury is common because consumers typically are not aware of the 
practice or do not understand its implications and cannot effectively 
negotiate its use.
    Creditors' payments to mortgage brokers or their own employees that 
originate loans (``loan officers'') generally are not transparent to 
consumers. Brokers may impose a direct fee on the consumer which may 
lead consumers to believe that this is the sole source of the broker's 
compensation. While consumers expect the creditor to compensate its own 
loan officers, they do not necessarily understand that the loan 
originator may have the ability to increase the creditor's interest 
rate or include certain loan terms for the originator's own gain.
    To guard effectively against this practice, a consumer would have 
to know the lowest interest rate the creditor would have accepted to 
ascertain that the offered interest rate represents a rate increase by 
the loan originator. Most consumers will not know the lowest rate the 
creditor would be willing to accept. The consumer also would need to 
understand the dollar amount of the yield spread premium that is 
generated by the rate increase to determine what portion, if any, is 
being applied to reduce the consumer's upfront loan charges. Although 
HUD recently adopted disclosures in Regulation X, implementing RESPA, 
that could enhance some consumers' understanding of mortgage broker 
compensation, the details of the compensation arrangements are complex 
and the disclosures are limited. A creditor may show the yield spread 
premium as a credit to the borrower that is applied to cover upfront 
costs, but is also permitted to add the amount of the yield spread to 
the total origination charges being disclosed. This would not 
necessarily inform the consumer that the rate has been increased by the 
originator and that a lower rate with a smaller origination charge was 
also available. In addition, the Regulation X disclosure concerning 
yield spread premiums would not apply to overages occurring when the 
loan originator is employed by the creditor. Thus, the Regulation X 
disclosure, while perhaps an improvement over previous rules, is not 
likely by itself to prevent consumers from incurring substantial injury 
from the practice.
    Because consumers generally do not understand the yield spread 
premium mechanism, they are unable to engage in effective negotiation. 
Instead they are more likely to rely on the loan originator's advice 
and frequently obtain a higher rate or other unfavorable terms

[[Page 43282]]

solely because of greater originator compensation. These consumers 
suffer substantial injury by incurring greater costs for mortgage 
credit than they would otherwise be required to pay.
    Injury not reasonably avoidable. Yield spread premiums create a 
conflict of interest between the loan originator and consumer. As noted 
above, many consumers are not aware of creditor payments to loan 
originators, especially in the case of mortgage brokers, because these 
arrangements lack transparency. Although consumers may reasonably 
expect creditors to compensate their own employees, consumers do not 
know how the loan officer's compensation is structured or that the loan 
officer can increase the creditor's interest rate or offer certain loan 
terms to increase their own compensation. Without this understanding, 
consumers cannot reasonably be expected to appreciate or avoid the risk 
of financial harm these arrangements represent.
    Yield spread premiums are complex and may be counter-intuitive even 
to well-informed consumers. Based on the Board's experience with 
consumer testing, the Board believes that disclosures are insufficient 
to overcome the gap in consumer comprehension regarding this critical 
aspect of the transaction. Currently, the required disclosures of 
originator compensation under federal and State laws seem to have 
little, if any, effect on originators' incentive to provide consumers 
with increased interest rates or other unfavorable loan terms, such as 
a prepayment penalty, that can increase the originator's 
compensation.\63\ The Board's consumer testing, discussed above, 
supported the finding that disclosures about yield spread premiums are 
ineffective; consumers in these tests did not understand yield spread 
premiums and did not grasp how they create an incentive for loan 
originators to increase consumers' costs.
---------------------------------------------------------------------------

    \63\ Creditors may be willing to offer a loan with a lower 
interest rate in return for including a prepayment penalty. A loan 
originator that offers a loan with a prepayment penalty might not 
offer the lower rate, resulting in a premium interest rate and the 
payment of a yield spread premium.
---------------------------------------------------------------------------

    Consumers' lack of comprehension of yield spread premiums is 
compounded where the originator also imposes a direct charge on the 
consumer. A mortgage broker might charge the consumer a direct fee, for 
example $500, for arranging the consumer's mortgage loan. This charge 
encourages consumers to infer that the broker accepts the consumer-paid 
fee to represent the consumer's financial interests. Consumers may 
believe that the fee they pay is the originator's sole compensation. 
This may lead reasonable consumers to believe, erroneously, that loan 
originators are working on their behalf and are under a legal or 
ethical obligation to help consumers obtain the most favorable loan 
terms and conditions. There is evidence that consumers often regard 
loan originators as ``trusted advisors'' or ``hired experts'' and 
consequently rely on originators' advice. Consumers who regard loan 
originators in this manner are far less likely to shop or negotiate to 
assure themselves that they are being offered competitive mortgage 
terms. Even for consumers who shop, the lack of transparency in 
originator compensation arrangements makes it unlikely consumers will 
avoid yield spread premiums that unnecessarily increase the cost of 
their loan.
    Consumers generally lack expertise in complex mortgage transactions 
because they engage in such mortgage transactions infrequently. Their 
reliance on the loan originator is reasonable in light of the 
originator's greater experience and professional training in the area, 
the belief that originators are working on their behalf, and the 
apparent ineffectiveness of disclosures to dispel that belief.
    Injury not outweighed by benefits to consumers or to competition. 
Yield spread premiums can represent a potential consumer benefit in 
cases where the amount is applied to reduce consumers' upfront closing 
costs, including originator compensation. A creditor's increase in the 
interest rate (or the addition of other loan terms) may be used to 
generate additional income that the creditor uses to compensate the 
originator, in lieu of adding origination points or fees that the 
consumer would be required to pay directly from the consumer's 
preexisting funds or the loan proceeds. This can benefit a consumer who 
lacks the resources to pay closing costs in cash, or who might have 
insufficient equity in the property to increase the loan amount to 
cover these costs. Further, some consumers prefer to fund closing 
costs, including origination fees, through a higher rate if the 
consumer expects to own the property or have the loan for a relatively 
short period, for example, less than five years. For those consumers 
who understand this trade-off there could be potential benefits. In 
such cases, however, the yield spread premium does not increase the 
amount of compensation paid by the creditor to the originator, who 
would receive the same amount whether the loan has a higher rate or a 
lower rate accompanied by higher upfront fees.
    Nevertheless, without a clear understanding of yield spread 
premiums or effective disclosure, the majority of consumers are not 
equipped to police the market to ensure that yield spread premiums are 
in fact applied to reduce their closing costs, especially in the case 
of loan originator compensation. This would be particularly difficult 
because consumers are not likely to have any basis for determining a 
``typical'' or ``reasonable'' amount for originator compensation. 
Accordingly, the Board is proposing a rule that prohibits any person 
from basing a loan originator's compensation on the loan's rate or 
terms but still affords creditors the flexibility to structure loan 
pricing to preserve the potential consumer benefit of compensating an 
originator through the interest rate.
The Board's Proposal
    Under Sec.  226.36(d)(1), the Board proposes to prohibit any person 
from compensating a loan originator, directly or indirectly, based on 
the terms or conditions of a loan transaction secured by real property 
or a dwelling. This prohibition would apply to any person, rather than 
only a creditor, to prevent evasion by structuring loan originator 
payments through non-creditors. For example, secondary market investors 
that purchase closed loans from creditors would not be permitted to pay 
compensation to loan originators that is based on the terms or 
conditions of their transactions.
    Under the proposal, compensation that is based on the loan amount 
would be considered a payment that is based on a term or condition of 
the loan. The prohibition would not apply to consumers' direct payments 
to loan originators. Under Sec.  226.36(d)(2), however, if the consumer 
compensates the loan originator directly, the originator would be 
prohibited from receiving compensation from the creditor or any other 
person.
    Because the loan originator could not receive compensation based on 
the interest rate or other terms, the originator would have no 
incentive to alter the terms made available by the creditor to deliver 
a more expensive loan. For example, a company acting as a mortgage 
broker could not provide greater compensation to its employee acting as 
the loan originator for a transaction with a 7 percent interest rate 
than for a transaction with a 6 percent interest rate. A creditor would 
be under the same restriction in compensating its loan officer. For 
this purpose, the term ``compensation'' would not be limited to 
commissions, but would include

[[Page 43283]]

salaries or any financial incentive that is tied to the transaction's 
terms or conditions, including annual or periodic bonuses or awards of 
merchandise or other prizes. See proposed comment 36(d)(1)-1.
    Proposed comment 36(d)(1)-2 provides examples of compensation that 
is based on the transaction's terms or conditions, such as payments 
that are based on the interest rate, annual percentage rate, or the 
existence of a prepayment penalty. Examples of loan originator 
compensation that is not based on the transaction's terms or conditions 
are listed in proposed comment 36(d)(1)-3. These include compensation 
based on the originator's loan volume, the performance of loans 
delivered by the originator, or hourly wages.
    The Board recognizes that loans originators may need to expend more 
time and resources in originating loans for consumers with limited or 
blemished credit histories. Because such loans are likely to carry 
higher rates, originators currently rely on higher yield spread 
premiums to compensate them for the additional time and efforts. Paying 
an originator based on the time expended would be permissible under the 
proposed rule.
    Although the proposed rule would not prohibit a creditor from 
basing compensation on the originator's loan volume, such arrangements 
may raise concerns about whether it creates incentives for originators 
to deliver loans without proper regard for the credit risks involved. 
The Board expects creditors to exercise due diligence to monitor and 
manage such risks. Financial institution regulators generally will 
examine creditors they supervise to ensure they have systems in place 
to exercise such due diligence.
    The proposed rule also would not prohibit compensation that differs 
by geographical area, but any such arrangements must comply with other 
applicable laws such as the Equal Credit Opportunity Act (15 U.S.C. 
1691-1691f) and Fair Housing Act (42 U.S.C. 3601-3619). See proposed 
comment 36(d)(1)-4. Creditors that use geography as a criterion for 
setting originator compensation would need to be able to demonstrate 
that this reflects legitimate differences in the costs of origination 
and in the levels of competition for originators' services.
    Under the proposed rule, creditors also may compensate their own 
loan officers differently than mortgage brokers. For instance, in light 
of the fact that mortgage brokers relieve creditors of certain overhead 
costs of loan originations, a creditor might pay brokers more than its 
own loan officers. Likewise, a creditor might pay one loan originator 
of either type more than it pays another, as long as each originator 
receives compensation that is not based on the terms of the 
transactions they deliver to the creditor.
    Scope of coverage. The Board believes that the proposed rule should 
apply to creditors' employees who originate loans in addition to 
mortgage brokers. A creditor's loan officers frequently have the same 
discretion over loan pricing that mortgage brokers have to modify a 
loan's terms to increase their compensation, and there is evidence 
suggesting that loan officers engage in such practices.\64\ 
Accordingly, the coverage of Sec.  226.36(d)(1) is broader than the 
2008 HOEPA proposal, which covered only mortgage brokers. Some 
commenters on the HOEPA proposal expressed concern that it would create 
an ``unlevel playing field'' by creating an unfair advantage for 
creditors that would not have to comply with the same requirements as 
brokers.
---------------------------------------------------------------------------

    \64\ For example, the Federal Trade Commission's settlement with 
Gateway Funding, Inc. in December 2008 illustrates a case where a 
creditor's loan officers created ``overages,'' although the primary 
legal theory concerned disparate treatment by race in the imposition 
of overages. The FTC's complaint and the court's final judgment and 
order can be found on the FTC's web-site at http://www.ftc.gov/os/caselist/0623063/index.shtm. The FTC has since filed a complaint 
alleging similar patterns of overages in violation of fair lending 
laws, against Golden Empire Mortgage, Inc. The May 2009 complaint 
can be found at http://www.ftc.gov/os/caselist/0623061/090511gemcmpt.pdf. A similar pattern of overages was alleged in 
legal actions brought by the Department of Justice (DOJ), which 
resulted in settlement agreements with Huntington Mortgage Company 
(1995) and Fleet Mortgage Corp. (1996).
---------------------------------------------------------------------------

    The proposed rule would apply to covered transactions whether or 
not they are higher-priced mortgage loans. A loan originator's 
financial incentive to deliver less favorable loan terms to a consumer 
could result in consumer injury whether or not the loan has a rate 
above the coverage threshold in Sec.  226.35. The risks of harm could 
be reduced in the lower-priced segment of the market, however, where 
consumers historically have more choices. Comment is solicited on the 
relative costs and benefits of applying the rule to all segments of the 
market, and whether the costs would outweigh the benefits for loans 
below the higher-priced mortgage loan threshold.
    Creditors' pricing flexibility. The proposed rule would not affect 
creditors' flexibility in setting rates or other loan terms. The rule 
does not limit the creditor's ability to adjust the loan terms it 
offers to consumers as a means of financing costs the consumer would 
otherwise be obligated to pay directly (in cash or out of the loan 
proceeds), including the originator's compensation, provided this does 
not affect the amount the originator receives for the transaction. 
Thus, a creditor could recoup costs by adding to the loan pricing terms 
an origination point (calculated as one percentage point of the loan 
amount) even though the creditor could not pay the originator's 
compensation on that basis. Similarly, a creditor could add a constant 
premium of, for instance, \1/4\ of one percent to the interest rates on 
all transactions for which the creditor will pay compensation to the 
loan originator, as a means of recouping the cost of the originator's 
compensation. The creditor would not recoup the same dollar amount in 
each transaction, however, because the present value of the premium in 
dollars would vary with the loan amount. Consequently, even though loan 
pricing could be set in this manner, this method could not be used to 
set the loan originator's compensation. See proposed comment 36(d)(1)-
5.
    Effect of modification of loan terms. The proposed rule is designed 
to prevent consumers from being harmed by loan originators making 
unfavorable modifications to loan terms, such as increasing the 
interest rate, to increase the originator's compensation. Currently, 
loan originators might also exercise discretion to make modifications 
in the consumer's favor. For example, to retain the consumer's 
business, today a loan originator might agree with the consumer to 
reduce the amount the consumer must pay in origination points on the 
loan, which would be funded by a reduction in the amount the originator 
receives from the creditor as compensation for delivering the loan. 
Under the proposed rule, however, a creditor would not be permitted to 
reduce the amount it pays to the loan originator based on such a change 
in loan terms. As a result, the reduction in origination points would 
be a cost borne by the creditor.
    Thus, when the creditor offers to extend a loan with specified 
terms and conditions (such as the rate and points), the amount of the 
originator's compensation for that transaction is not subject to 
change, through either an increase or a decrease, even if different 
loan terms are negotiated. If this were not the case, a creditor 
generally could agree to compensate originators at a high level and 
then subsequently lower the compensation only in selective cases, such 
as when the consumer obtains a competing offer with a lower interest 
rate. This would have the same

[[Page 43284]]

effect as increasing the originator's compensation for higher rate 
loans. Proposed comment 36(d)(1)-6 would address this issue.
    Periodic changes in loan originator compensation. Under proposed 
Sec.  226.36(d)(1) a creditor would not be prevented from periodically 
revising the compensation it agrees to pay a loan originator. However, 
a creditor may not revise a loan originator's compensation arrangement 
in connection with each transaction. This guidance is reflected in 
proposed comment 36(d)(1)-7. The revised compensation arrangement must 
result in payments to the loan originator that are not based on the 
terms or conditions of a credit transaction. A creditor might 
periodically review factors such as loan performance, transaction 
volume, as well as current market conditions for originator 
compensation, and prospectively revise the compensation it agrees to 
pay to a loan originator. For example, assume that during the first six 
months of the year, a creditor pays $3,000 to a particular loan 
originator for each loan delivered, regardless of the loan terms. After 
considering the volume of business produced by that originator, the 
creditor could decide that as of July 1, it will pay $3,250 for each 
loan delivered by that originator, regardless of the loan terms. The 
change in compensation would not be a violation even if the loans made 
by the creditor after July 1 generally carry higher interest rates than 
loans made before that date.
    Alternative to permit compensation based on loan amount. The Board 
is also publishing for comment a proposed alternative that would allow 
loan originator compensation to be based on the loan amount, which 
would not be considered a transaction term or condition for purposes of 
the prohibition in Sec.  226.36(d)(1). Currently, the compensation 
received by many mortgage originators is structured as a percentage of 
the loan amount. Other participants in the mortgage market, such as 
creditors, mortgage insurers, and other service providers, also receive 
compensation based on the loan amount. The Board is therefore seeking 
comment on whether prohibiting originator compensation on this basis 
might be unduly restrictive and unnecessary to achieve the purposes of 
the proposed rule.
    On the other hand, prohibiting compensation based on the loan 
amount would eliminate an incentive for the originator to steer 
consumers to a larger loan amount. Such steering maximizes the 
originator's compensation but also increases the transaction's loan-to-
value ratio and decreases the consumer's equity in the property. If the 
loan-to-value ratio increases sufficiently, the consumer may incur 
additional costs in the form of a higher interest rate or additional 
points and fees, including the cost of mortgage insurance premiums. 
Because the consumer's monthly payment would also be larger, the 
originator might direct the consumer to riskier loan products that have 
discounted initial rates but are subject to significant payment 
increases after the introductory period expires.
    Because of the foregoing concerns, the Board is publishing two 
alternative versions of proposed Sec.  226.36(d)(1). The first 
alternative would consider the loan amount as a term or condition of 
the loan, thereby prohibiting the payment of originator compensation as 
a percentage of the loan amount. The second alternative provides that 
the loan amount is not a term or condition of the loan, and would 
permit such payments. The second alternative would be accompanied by 
proposed comment 36(d)(1)-10 to provide further guidance. Under 
proposed comment 36(d)(1)-10, a loan originator could be paid a fixed 
percentage of the loan amount even though the dollar amount paid by a 
particular creditor would vary from transaction to transaction and 
would increase as the loan amount increases. Comment 36(d)(1)-10 also 
permits compensation paid as a fixed percentage of the loan amount to 
be subject to a specified minimum or maximum dollar amount. For 
example, a loan originator's compensation could be set at one percent 
of the principal loan amount but not less than $1,000 or greater than 
$5,000.
    The Board seeks comment on the two alternatives. Further, if the 
final rule permits compensation based on the loan amount, should 
creditors be permitted to apply different percentages to loans of 
different amounts? Should creditors be allowed to pay a larger 
percentage for smaller loan amounts, which could be an incentive to 
originate loans in lower- priced neighborhoods that ensures that the 
originator receives an amount that is comparable to loans originated in 
high-priced neighborhoods? If so, should creditors also be permitted to 
pay originators a higher percentage for larger loan amounts?
    Prohibition of compensation from both the consumer and another 
source. Proposed Sec.  226.36(d)(2) would provide that, if a loan 
originator is compensated directly by the consumer for a transaction 
secured by real property or a dwelling, no other person may pay any 
compensation to the originator for that transaction. Direct 
compensation paid by a consumer to a loan originator would not be 
limited to ``origination fees,'' ``broker fees,'' or similarly labeled 
charges. Rather, compensation for this purpose includes any payment by 
the consumer that is retained by the loan originator. Thus, a creditor 
that is a loan originator by virtue of making a table funded 
transaction, as discussed above, would be subject to this prohibition 
if it imposes and retains any direct charge on the consumer for the 
transaction.
    Consumers reasonably may believe that when they pay a loan 
originator directly, that amount is the only compensation the 
originator will receive. As discussed above, consumers generally are 
not aware of creditor payments to originators. If the consumer were 
aware of such payments, the consumer might reasonably expect that 
making a direct payment to an originator would reduce or eliminate the 
need for the creditor to fund the originator's compensation through the 
consumer's interest rate. Because the consumer is unaware of yield 
spread premiums, however, the consumer cannot effectively negotiate the 
originator's compensation. In fact, if consumers pay loan originators 
directly and creditors also pay originators through higher rates, 
consumers may be injured by unwittingly paying originators more in 
total compensation (directly and through the rate) than consumers 
believe they agreed to pay.
    The Board believes that simply disclosing the yield spread premium 
would not address this injury to consumers. Consumer testing in 
connection with the Board's 2008 HOEPA Final Rule shows that, even with 
a disclosure, consumers do not understand how a creditor payment to a 
loan originator can result in a higher interest rate for the consumer. 
A disclosure therefore cannot inform consumers that they effectively 
are paying the loan originator more than they believe they agreed to 
pay. Without that knowledge, consumers cannot take steps to protect 
their own interests, such as by negotiating for a smaller direct 
payment, a lower rate, or both.
    The Board also believes that this prohibition would increase 
transparency for consumers by requiring that all originator 
compensation come from the creditor or from the consumer, but not both. 
This additional consequence of proposed Sec.  226.36(d)(2) would reduce 
the total number of loan pricing variables with which the consumer must 
contend. There is evidence that such simplification is consistent with 
TILA's purpose of promoting the informed use of

[[Page 43285]]

consumer credit.\65\ See TILA Section 102(a), 15 U.S.C. 1601(a).
---------------------------------------------------------------------------

    \65\ See, e.g., Woodward, Susan E., A Study of Closing Costs for 
FHA Mortgages at 70-73 (Urban Institute and U.S. Department of 
Housing and Urban Development 2008), available at http://www.urban.org/UploadedPDF/411682_fha_mortgages.pdf.
---------------------------------------------------------------------------

    Proposed Sec.  226.36(d)(2) would prohibit only payments to an 
originator that are made in connection with the particular credit 
transaction, such as a commission for delivering the loan. The rule is 
not intended to prohibit payment of a salary to a loan originator who 
also receives direct compensation from a consumer in connection with 
that consumer's transaction. This guidance is contained in proposed 
comment 36(d)(2)-1.
    Record retention requirements. Creditors are required by Sec.  
226.25(a) to retain evidence of compliance with Regulation Z for two 
years. Proposed staff comment 25(a)-5 would be added to clarify that, 
to demonstrate compliance with Sec.  226.36(d)(1), a creditor must 
retain at least two types of records.
    First, a creditor must have a record of the compensation agreement 
with the loan originator that was in effect on the date the 
transaction's rate was set. The Board believes this date is most likely 
when a loan originator's compensation was determined for a given 
transaction. The Board seeks comment, however, on whether some other 
time would be more appropriate, in light of the purposes of the 
proposed rule. Proposed comment 25(a)-5 would clarify that the rules in 
Sec.  226.35(a) would govern in determining when a transaction's rate 
is set.
    Second, proposed comment 25(a)-5 would state that a creditor must 
retain a record of the actual amount of compensation it paid to a loan 
originator in connection with each covered transaction. The proposed 
comment would clarify that, in the case of mortgage brokers, the HUD-1 
settlement statement required under RESPA would be an example of such a 
record because it itemizes the compensation received by a mortgage 
broker. The Board solicits comment on whether any comparable record 
exists for loan officer compensation that should be referenced in 
proposed comment 25(a)-5. To facilitate compliance, a cross reference 
to the record retention requirement would be included in proposed 
comment 36(d)(1)-9.
    The Board solicits comment on whether there are other records that 
should be subject to the retention requirements. The Board also seeks 
comment on whether the existing two-year record retention period is 
adequate for purposes of the rules governing loan originator 
compensation.
    The current record retention requirements in Sec.  226.25 apply 
only to creditors. Although loan originator compensation has 
historically been paid by creditors, the prohibitions in Sec.  
226.36(d) apply more broadly to any person to prevent evasion by 
restructuring of payments through non-creditors. Accordingly, the Board 
expects that payments to loan originators will continue to be made 
largely by creditors. The Board seeks comment on whether there is a 
need to adopt requirements for retaining records concerning originator 
compensation that would apply to persons other than creditors, 
including the relative costs and benefits of that approach.
36(e) Prohibition on Steering
Optional Proposal on Steering by Loan Originators
    The Board is also soliciting comment on whether it should adopt a 
rule that seeks to prohibit loan originators from directing or 
``steering'' consumers to loans based on the fact that the originator 
will receive additional compensation, when that loan may not be in the 
consumer's best interest. Under proposed Sec.  226.36(d)(1), a loan 
originator would receive the same compensation from a particular 
creditor regardless of the transaction's rate or terms. That provision, 
however, would not prohibit a loan originator from directing a consumer 
to transactions from a single creditor that offers greater compensation 
to the originator, while ignoring possible transactions having lower 
interest rates that are available from other creditors.
    Attempting to address this issue presents difficulties. Determining 
whether a loan originator was warranted in directing a consumer to a 
loan that resulted in greater compensation for the originator also 
involves a determination of whether that loan was in the consumer's 
best interest compared to other available loan products. There is, 
however, no uniform method for making that evaluation. Consumers and 
loan originators may choose from among possible loan offers for a 
variety of reasons. The annual percentage rate (APR) is a tool that 
facilitates comparison shopping among different loans, but it is 
imperfect for reasons that are well documented, including the fact that 
the APR is calculated by amortizing origination fees over the full loan 
term rather than the expected life of the loan. See the 1998 Joint 
Report to the Congress by the Board and HUD, cited above. In 
considering interest rates, consumers may view the economic trade-off 
between rates and points differently depending on their individual 
financial circumstances or the amount of time they expect to hold the 
loan. Moreover, consumers evaluate other factors in deciding whether a 
loan is in their best interest even if it is not represented as the 
lowest cost option among the possible loan offers available through the 
originator. Thus, some consumers may reasonably determine that the 
financial risk created by a loan's prepayment penalty is acceptable in 
light of the loan's lower interest rate, while other consumers may 
prefer to accept a higher rate to avoid the risk. Consumers and loan 
originators also may consider factors other than loan cost, such as the 
creditor's rate lock-in policies, or the creditor's reputation for 
delivering loans within the promised time-frame, especially for home-
purchase loans.
    The Board believes, however, that there is benefit in attempting to 
craft a rule that prohibits and deters the most egregious practices, 
even if such a rule cannot ensure that consumers always obtain the 
lowest cost loan. Under the proposal, a loan originator would have a 
duty not to steer a consumer to higher cost loans that pay more to the 
originator when the loan is not in the consumer's interest. Originators 
would violate the rule, for example, if they directed the consumer to a 
fixed-rate loan option from a creditor that maximizes the originator's 
compensation without providing the consumer with an opportunity to 
choose from other available loans that have lower fixed interest rates 
with the equivalent amount in origination and discount points.
    The Board is publishing a proposal, designated as proposed Sec.  
226.36(e)(1), to reflect this optional approach. Specifically, the rule 
would prohibit loan originators from directing or ``steering'' a 
consumer to consummate a transaction secured by real property or a 
dwelling that is not in the consumer's interest, based on the fact that 
the originator will receive greater compensation from the creditor in 
that transaction than in other transactions the originator offered or 
could have offered to the consumer. The proposed rule seeks to preserve 
consumer choice by ensuring that consumers have appropriate loan 
options that reflect considerations other than the maximum amount of 
compensation that will be paid to the originator. Proposed comments 
36(e)(1)-1 through -3 would provide additional guidance on the rule.

[[Page 43286]]

    Proposed Sec.  226.36(e) would not require a loan originator to 
direct a consumer to the transaction that will result in the least 
amount of compensation being paid to the originator by the creditor. 
However, if the loan originator reviews possible loan offers available 
from a significant number of the creditors with which the originator 
regularly does business and the originator directs the consumer to the 
transaction that will result in the least amount of creditor-paid 
compensation, the requirements of Sec.  226.36(e) would be deemed to be 
satisfied. See proposed comment 36(e)(1)-2(ii).
    Loan originators employed by the creditor in a transaction would be 
prohibited under Sec.  226.36(d)(1) from receiving compensation based 
on the terms or conditions of the loan. Thus, when originating loans 
for the employer, the originator could not steer the consumer to a 
particular loan to increase compensation. Accordingly, in those cases, 
their compliance with Sec.  226.36(d)(1) would be deemed to satisfy the 
requirements of proposed Sec.  226.36(e). See proposed comment 
36(e)(1)-2(ii). A creditor's employee, however, occasionally might act 
as a broker in forwarding a consumer's application to a creditor other 
than the originator's employer, such as when the employer does not 
offer any loan products for which the consumer would qualify. If the 
originator is compensated for arranging the loan with the other 
creditor, the originator would not be an employee of the creditor in 
that transaction and would be subject to proposed Sec.  226.36(e).
    The Board is also publishing provisions that would facilitate 
compliance with the prohibition in proposed Sec.  226.36(e)(1). Under 
proposed Sec.  226.36(e)(2) and (3), a safe harbor would be created, 
and there would be no violation if the loan was chosen by the consumer 
from at least three loan options for each type of transaction (fixed-
rate or adjustable-rate loan) in which the consumer expressed an 
interest, provided the following conditions are met. The loan 
originator must obtain loan options from a significant number of 
creditors with which the originator regularly does business. For each 
type of transaction in which the consumer expressed an interest, the 
originator must present and permit the consumer to choose from at least 
three loans that include: the loan with the lowest interest rate, the 
loan with the second lowest interest rate, and the loan with the lowest 
total dollar amount for origination points or fees and discount points. 
The loan originator must have a good faith belief that these are loans 
for which the consumer likely qualifies. If the originator presents 
more than three loans to the consumer, the originator must highlight 
the three loans that satisfy the lowest rate and points criteria in the 
rule. Proposed comments 36(e)(2)-1 and 36(e)(3)-1 though -4 would 
provide guidance on the application of the rule.
    Comment is expressly solicited on whether the proposed rule in 
Sec.  226.36(e) and the accompanying commentary would be effective in 
achieving the stated purpose. Comment is also solicited on the 
feasibility and practicality of such a rule, its enforceability, and 
any unintended adverse effects the rule might have.
36(f)
    The Board proposes to redesignate existing Sec.  226.36(d) as Sec.  
226.36(f). Existing Sec.  226.36(d) provides that Sec.  226.36 does not 
apply to home-equity lines of credit (HELOCs). The redesignation would 
accommodate proposed new Sec.  226.36(d) and (e), discussed above.
    The Board proposed as part of the 2008 HOEPA proposal to exclude 
HELOCs from the coverage of Sec.  226.36 because of two considerations, 
which suggested that the protections may be unnecessary for such 
transactions. First, the Board understood that most originators of 
HELOCs hold them in portfolio rather than sell them, which aligns these 
originators' interests in loan performance more closely with their 
borrowers' interests. Second, the Board understood that HELOCs are 
concentrated in the banking and thrift industries, where the federal 
banking agencies can use their supervisory authority to protect 
consumers. The Board sought comment on whether these considerations 
were valid or whether any or all of the protections in Sec.  226.36 
should apply to HELOCs. Although mortgage lenders and other industry 
representatives commented in support of the proposed exclusion and 
consumer advocates commented in opposition, neither group provided the 
Board with substantial evidence as to whether the kinds of problems 
Sec.  226.36 addresses exist in the HELOC market.
    In the July 2008 HOEPA Final Rule, the Board limited the scope of 
Sec.  226.36 to closed-end mortgages. In the absence of clear evidence 
of abuse, the Board continued to believe the protections may be 
unnecessary for the reasons discussed above. Nevertheless, the Board 
remains aware of concerns that creditors may structure transactions as 
HELOCs solely to evade the protections of Sec.  226.36. The Board also 
is aware that many of the same opportunities and incentives that 
underlie the abuses addressed by Sec.  226.36 for closed-end mortgages 
may well exist for HELOCs. Reasons therefore exist for positing that 
such unfair practices either may or may not occur with HELOCs, but the 
Board lacks concrete evidence as to which is the case.
    The Board requests comment on whether any or all of the protections 
in Sec.  226.36 should apply to HELOCs. Specifically, what evidence 
exists that shows whether loan originators unfairly manipulate HELOC 
terms and conditions to receive greater compensation, injuring 
consumers as a result? What evidence is there as to whether appraisals 
obtained for HELOCs have been influenced toward misstating property 
values? To what extent do creditors contract out HELOC servicing to 
third parties, thus undermining the Board's premise regarding aligned 
interests between servicers and consumers? Whether third parties or the 
original creditors primarily service HELOCs, what evidence shows 
whether they engage in the abusive servicing practices addressed by 
Sec.  226.36(c)?

Section 226.37 Special Disclosure Requirements for Closed-End Mortgages

    Section 226.17(a), which implements Sections 122(a) and 128(b)(1) 
of TILA, addresses format and other disclosure standards for all 
closed-end credit. 15 U.S.C. 1632(a), 1638(b)(1). For closed-end 
credit, creditors must provide disclosures in writing in a form that 
the consumer may keep, grouped together and segregated from other 
information. In addition, the loan's ``finance charge'' and ``annual 
percentage rate,'' using those terms, must be more conspicuous than 
other required disclosures.
    The Board proposes special rules in new Sec.  226.37 to govern the 
format of required disclosures under TILA for transactions secured by 
real property or a dwelling. These new rules would be in addition to 
the rules in Sec.  226.17. The proposed format rules are intended to 
(1) improve consumers' ability to identify disclosed loan terms more 
readily; (2) emphasize information that is most important to the 
consumer in the decision-making process; and (3) simplify the 
organization and structure of required disclosures to reduce complexity 
and ``information overload.'' Proposed Sec.  226.37 would establish 
special format rules for disclosures required by proposed Sec. Sec.  
226.38 and 226.20(d), and existing Sec. Sec.  226.19(b) and 226.20(c).
    The Board is proposing Sec.  226.37 and associated commentary to 
address the

[[Page 43287]]

duty to provide ``clear and conspicuous'' disclosures that are grouped 
together and segregated from other information, and to require that 
certain information be highlighted in table form or in a graph. 
Proposed Sec.  226.37 would also require creditors to use consistent 
terminology for all disclosures. The Board is proposing to revise the 
requirement that certain terms be used or disclosed more conspicuously, 
for transactions secured by real property or a dwelling. The general 
disclosure standards under Sec.  226.17(a)(1) and associated commentary 
continue to apply transactions secured by real property or a dwelling 
but, under the proposal creditors would also be required to meet the 
higher standards under proposed Sec.  226.37.
37(a) Form of Disclosures
37(a)(1) Clear and Conspicuous
    Section 122(a) of TILA and Sec.  226.17(a)(1) require that all 
closed-end credit disclosures be made clearly and conspicuously. 15 
U.S.C. 1632(a). Currently, under comment 17(a)(1)-1, the Board 
interprets the clear and conspicuous standard to mean that disclosures 
must be in a ``reasonably understandable'' form. This standard does not 
require any mathematical progression or format, or that disclosures be 
provided in a particular type size, although disclosures must be 
legible whether typewritten, handwritten, or printed by computer. 
Comment 17(a)(1)-3 provides that the standard does not require 
disclosures to be located in a particular place.
    Consumer testing conducted by the Board showed that information 
presented without any highlighting or other emphasis, and the use of 
small print led many participants to miss or disregard key information 
about the loan transaction. As discussed more fully under the following 
sections, consumer testing indicates that when certain information is 
presented and highlighted in a specific way consumers are able to 
identify and use key terms more easily: proposed Sec.  226.38 for 
disclosures required on transactions secured by real property or a 
dwelling, Sec.  226.19(b) for ARM loan program disclosures, Sec.  
226.20(c) for ARM adjustment notices, and Sec.  226.20(d) for periodic 
statements on loans that are negatively amortizing.\66\ For example, 
consumer testing of the current TILA model form indicated that 
participants viewed both the interest rate and monthly payment as 
important. Although participants generally understood that the interest 
rate on their loan could change, several arrived at this conclusion 
because of the payment schedule disclosure, which showed different 
monthly payment amounts, not because they understood the loan had a 
variable rate feature that would affect their monthly payments. In 
addition to testing the current TILA model form, the Board also tested 
variations of that form, including a form it developed in 1998 with HUD 
(``Joint Form'') that was submitted to Congress in the 1998 Joint 
Report.\67\ Participants who reviewed the Joint Form also generally 
understood the loan had an adjustable rate, but less than half 
understood the rate was fixed only for the first three years and could 
vary only after that time period. However, when the Board consumer 
tested information about interest rates and monthly payments in a 
tabular form, participants could identify more readily that the loan 
had an adjustable rate feature, and comprehension of when interest 
rates would adjust and the impact that rate adjustments had on their 
monthly payments improved.
---------------------------------------------------------------------------

    \66\ See also Improving Consumer Mortgage Disclosures (finding 
that incorporating white space, using clear headings, and using 
certain formatting and organization create a ``less intimidating 
appearance than many consumer financial disclosures, making it more 
likely that consumers will both want to read the form and be able to 
use it productively in their decisions.'').
    \67\ See the 1998 Joint Report, App.A-6.
---------------------------------------------------------------------------

    For these reasons, the Board proposes to require that creditors 
make disclosures for transactions secured by real property or a 
dwelling clearly and conspicuously, by highlighting certain information 
in accordance with the requirements in proposed Sec. Sec.  226.38, 
226.19(b), Sec.  226.20(c), and Sec.  226.20(d). Proposed comment 
37(a)(1)-1 would clarify that to meet the clear and conspicuous 
standard, disclosures must be in a reasonably understandable form and 
readily noticeable to the consumer. Proposed comment 37(a)(1)-2 
provides that to meet the readily noticeable standard, the disclosures 
under proposed Sec. Sec.  226.38, 226.19(b), 226.20(c), and 226.20(d) 
generally must be provided in a minimum 10-point font. The approach of 
requiring a minimum of 10-point font for certain disclosures is 
consistent with the approach taken by the Board in revising disclosures 
required under TILA for certain open-end credit. 74 FR 5244; Jan. 29, 
2009.
    New comment 37(a)(1)-3 would clarify that disclosures under 
proposed Sec. Sec.  226.38 and 226.19(b) must be provided on a document 
separate from other information, although these disclosures, as well as 
disclosures under proposed Sec. Sec.  226.20(c) and 226.20(d), may be 
made on more than one page, on the front or back side of a page, and 
continued from one page to the next. Consumer testing suggests that 
consumers may not read information carefully if it is excessive in 
length, and if unable to identify relevant information quickly are 
likely to become frustrated and not read the disclosures. The Board 
believes that allowing creditors to combine disclosures with other 
information may increase the likelihood that consumers will not read 
the disclosures.
37(a)(2) Grouped Together and Segregated
    Section 128(b)(1) of TILA and Sec.  226.17(a)(1) currently require 
that, except for certain information, the disclosures required for 
closed-end credit must be grouped together, segregated from everything 
else, and not contain any information not directly related to the 
required disclosures. 15 U.S.C. 1638(b)(1). Comment 17(a)(1)-2 states 
that creditors can satisfy the grouped together and segregation 
requirement in a variety of ways, including combining segregated 
disclosures with other information as long as they are set off by a 
certain format type. Comment 17(a)(1)-2 further provides that the 
segregation requirement does not apply to disclosures for variable rate 
transactions required under current Sec. Sec.  226.19(b) and 226.20(c). 
Comment 17(a)(1)-7 clarifies that balloon-payment financing with 
leasing characteristics is subject to the grouped together and 
segregation requirement.
    Consumer testing conducted by the Board indicated that participants 
generally are overwhelmed by the amount of information presented for 
loan transactions, and as a result, do not read their mortgage 
disclosures carefully. Consumer testing showed that emphasizing terms 
and costs consumers find important, and separating out less useful 
information, is critical to improving consumers' ability to identify 
and use key information in their decision-making process.\68\ Consumer 
testing also demonstrated that grouping related concepts and figures 
together, and presenting them in a particular format or structure can 
improve

[[Page 43288]]

consumers' ability to identify, comprehend, or use disclosed terms.
---------------------------------------------------------------------------

    \68\ See also Improving Consumer Mortgage Disclosure at 69 
(consumer testing results showed that current mortgage disclosure 
forms failed to convey key cost disclosures, but that prototype 
disclosures, which removed less useful information, significantly 
improved consumers' recognition of key mortgage costs).
---------------------------------------------------------------------------

    For these reasons, the Board proposes to require that certain 
disclosures be grouped together and segregated in the manner discussed 
below, pursuant to its authority under TILA Section 105(a). 15 U.S.C. 
1604(a). Section 105(a) authorizes the Board to make exceptions and 
adjustments to TILA to effectuate the statute's purposes, which include 
facilitating consumers' ability to compare credit terms and helping 
consumers avoid the uninformed use of credit. 15 U.S.C. 1601(a), 
1604(a). Grouping and segregating information which is most useful and 
relevant to the loan transaction would facilitate consumers' ability to 
evaluate a loan offer.
    Segregation of disclosures. Proposed Sec.  226.37(a)(2) would 
implement TILA Section 128(b)(1) of TILA, in part, for transactions 
secured by real property or a dwelling. 15 U.S.C. 1604(a), 1638(b)(1). 
Proposed Sec.  226.37(a)(2) would require that disclosures for such 
transactions be grouped together in accordance with the requirements 
under proposed Sec.  226.38(a) through (j), segregated from other 
information, and not contain any information not directly related to 
the segregated disclosures. Based on consumer testing, the Board also 
is proposing to require that ARM loan program disclosures under 
proposed Sec.  226.19(b), ARM adjustment notices under proposed Sec.  
226.20(c), and periodic notices for payment option loans that are 
negatively amortizing under proposed Sec.  226.20(d), be subject to a 
grouped-together and segregation requirement. Thus, the reference to 
Sec. Sec.  226.19(b) and 226.20(c) would be deleted from comment 
17(a)(1)-2.
    Proposed comment 37(a)(2)-1 would clarify that to be segregated, 
disclosures must be set off from other information. Based on consumer 
testing, the Board is concerned that allowing creditors to combine 
disclosures with other information, in any format, will diminish the 
clarity of key disclosures, potentially cause ``information overload,'' 
and increase the likelihood that consumers may not read the 
disclosures. Proposed comment 37(a)(2)-1 also would provide guidance on 
how creditors can group together and segregate the disclosures in 
accordance with proposed Sec.  226.38(a)-(j), such as by using bold 
print dividing lines.
    Content of segregated disclosures; directly related information. 
Footnotes 37 and 38 currently provide exceptions to the grouped-
together and segregation requirement under Sec.  226.17(a)(1). Footnote 
37 allows creditors to include information not directly related to the 
required disclosures, such as the consumer's name, address, and account 
number. Footnote 38, which implements TILA Section 128(b)(1), 15 U.S.C. 
1638(b)(1), allows creditors to exclude certain required disclosures 
from the grouped-together and segregation requirement, such as the 
creditor's identity under Sec.  226.18(a), the variable-rate example 
under Sec.  226.18(f)(1)(iv), insurance or debt cancellation 
disclosures under Sec.  226.18(n), or certain security-interest charges 
under Sec.  226.18(o). Comment 17(a)(1)-4 clarifies that creditors have 
flexibility in grouping the disclosures listed in footnotes 37 and 38 
either together with or separately from segregated disclosures, and 
comment 17(a)(1)-5 addresses what is considered directly related to the 
segregated disclosures.
    Proposed Sec.  226.37(a)(2)(i) and (ii) would provide exceptions to 
the grouped-together and segregation requirement, and implement TILA 
Section 128(b)(1) for transactions secured by real property or a 
dwelling. 15 U.S.C. 1638(b)(1). Proposed Sec.  226.37(a)(2)(i) 
replicates the content in current footnote 37 and would allow the 
following disclosures to be made together with the segregated 
disclosures: the date of the transaction, and the consumer's name, 
address and account number. Proposed Sec.  226.37(a)(2)(ii) generally 
replicates the substance in current footnote 38, except that the Board 
proposes to remove the reference to the variable-rate example under 
Sec.  226.18(f)(iv), which would be eliminated for mortgage loans as 
discussed under proposed Sec.  226.19(b). Under proposed Sec.  
226.37(a)(2)(ii), creditors also would have flexibility to make the tax 
deductibility disclosure, as discussed under proposed Sec.  
226.38(f)(4), together with or separately from other required 
disclosures.
    Proposed comment 37(a)(2)-2 clarifies that creditors may add or 
delete the disclosures listed in proposed Sec.  226.37(a)(2)(i) and 
(ii) in any combination together with or separate from the segregated 
disclosures. Proposed comment 37(a)(2)-3 provides guidance on the type 
of information that would be considered directly related and that may 
be included with the segregated disclosures for transactions secured by 
real property or a dwelling. Information described in comments 
17(a)(1)-5(i) through (xv) are not included in proposed comment 
37(a)(2)-3 because they are not applicable to transactions secured by 
real property or a dwelling, or are unnecessary as a result of other 
proposed disclosures: grace periods for late fees; unsecured interest; 
demand features; instructions on multi-purpose forms; minimum finance 
charge statement; negative amortization; due-on-sale clauses; 
prepayment of interest statement; the hypothetical example disclosure 
required by current Sec.  226.18(f)(1)(iv); the variable rate 
transaction disclosure required by current Sec.  226.18(f)(1); 
assumption; and the late-payment fee disclosure for single-payment 
loans.
    The Board also proposes to require that the disclosure of the 
creditor's identity be grouped together and segregated from other 
information, for all closed-end credit. The Board proposes to make this 
change pursuant to its authority under TILA Section 105(a). 15 U.S.C. 
1604(a). Section 105(a) authorizes the Board to make exceptions and 
adjustments to TILA to effectuate the statute's purposes, which include 
facilitating consumers' ability to compare credit terms, and avoiding 
the uninformed use of credit. 15 U.S.C. 1601(a). The Board believes 
that the creditor's identity should be included with the grouped-
together and segregated disclosures so that consumers can more easily 
identify the appropriate entity. Thus, current footnote 38 would be 
revised, and proposed Sec.  226.37(a)(2) would implement this aspect of 
the proposal for transactions secured by real property or a dwelling.
    In technical revisions, the Board proposes to move the substance of 
footnotes 37 and 38 to the regulatory text of Sec.  226.17(a)(1). 
Current comment 17(a)(1)-7 would be revised to address disclosures for 
transactions secured by real property or a dwelling that have balloon 
payment financing with leasing characteristics; a cross-reference to 
comment 17(a)(1)-7 is proposed in new comment 37(a)(2)-4.
    The Board seeks comment on whether it should continue to permit 
creditors to make the insurance or debt cancellation disclosures under 
proposed Sec.  226.4(d) together with or separately from other required 
disclosures. Consumer testing showed that many participants found these 
disclosures too long and complex, and as a result they do not read or 
only skim the disclosures. The Board is concerned that adding the 
insurance information to the information about loan terms required by 
proposed Sec.  226.38 will result in ``information overload.''
    Multi-purpose forms. Comment 17(a)(1)-6 currently permits creditors 
to design multi-purpose forms for TILA-required closed-end credit 
disclosures as long as the clear and conspicuous requirement is met. 
The Board proposes

[[Page 43289]]

to require that disclosures for transactions secured by real property 
or a dwelling be made only as applicable, as discussed more fully under 
proposed Sec.  226.38. As noted, consumer testing indicates that 
consumers may not read information if it is excessive in length, and if 
unable to identify relevant information quickly are likely to become 
frustrated and not read the disclosures. The Board believes that 
allowing creditors to combine disclosures with other information that 
is not applicable to the transaction may contribute to ``information 
overload,'' and increase the likelihood that consumers will not read 
the disclosures.
    For these reasons, under the proposal creditors would not be 
permitted to use forms for more than one type of mortgage transaction 
(i.e., multi-purpose forms). The Board believes technology and form 
design software will allow creditors to prepare transaction-specific, 
customized disclosure forms at minimal cost. The Board seeks comment, 
however, on whether creditors already provide consumers with customized 
disclosures forms for mortgage loans in the regular course of business, 
or the extent to which creditors rely on multi-purpose forms. The Board 
seeks comment on potential operational changes, difficulties, or costs 
that would be incurred to implement the requirement to have 
transaction-specific disclosures for transactions secured by real 
property or a dwelling.
37(b) Separate Disclosures
    Existing Sec.  226.17(a)(1) requires certain disclosures to be 
provided separately from the segregated information, such as the 
itemization of amount financed required by Sec.  226.18(c)(1) and TILA 
Section 128(a)(2)(A). 15 U.S.C. 1638(a)(2)(A). The Board is proposing 
to expand the list of disclosures that must be provided separately from 
the segregated information, based on consumer testing.
    Consumer testing showed that certain disclosures, such as 
disclosures about assumption or property insurance, were confusing to 
participants, or were generally not as useful in the participants' 
decision-making process as other information. For example, with respect 
to assumption, few participants understood the current assumption 
policy model clause in Model Clause H-6 in Appendix H to Regulation Z; 
almost no one stated that the assumption was important information when 
applying for and obtaining a loan. With respect to property insurance, 
most participants understood that the borrower can obtain property 
insurance from anyone that is acceptable to the lender, but 
participants stated they were already aware of this fact and therefore 
this information was not useful. Regarding rebates, consumers 
understood that early payoff of the loan could result in a refund of 
interest and fees, and generally expressed interest in knowing this 
information. However, most also indicated that information about 
rebates would not have an impact on whether they accepted a loan and 
therefore, it was not as important or useful to the decision-making 
process as other information, such as interest rate or closing costs.
    With respect to the contract reference, almost all participants 
understood already that they could read their contract to learn what 
could happen if they stopped making payments, defaulted, paid off or 
refinanced their loan early. In addition, other proposed disclosures, 
such as the prepayment penalty under proposed Sec.  226.38(a)(5) or 
demand feature under proposed Sec.  226.38(d)(2)(iv), would make the 
contract reference disclosure less important because such information 
would already be disclosed directly on the disclosure statement itself. 
Moreover, because creditors must provide disclosures within three 
business days after application for transactions secured by real 
property or a consumer's dwelling, consumers will not have a contract 
to reference at this point in time.
    For these reasons, the Board proposes to require that certain 
information be disclosed separately from the grouped together and 
segregation information, to improve consumers' ability to focus on the 
terms that are most important for shopping and decision-making.\69\ New 
Sec.  226.37(b) would require that creditors provide the following 
disclosures separately from other information for transactions secured 
by real-property or a dwelling: Itemization of amount financed under 
proposed Sec.  226.38(j)(1); rebates under proposed Sec.  226.38(j)(2); 
late payment under proposed Sec.  226.38(j)(3); property insurance 
under proposed Sec.  226.38(j)(4); contract reference under proposed 
Sec.  226.38(j)(5); and assumption under proposed Sec.  226.38(j)(6).
---------------------------------------------------------------------------

    \69\ See also Improving Consumer Mortgage Disclosures at 37-38, 
59-60 (finding that streamlining disclosures improved consumer 
ability to identify and understand key terms of the loan transaction 
disclosed).
---------------------------------------------------------------------------

    The Board proposes this approach pursuant to its authority under 
TILA Section 105(a). 15 U.S.C. 1604(a). Section 105(a) authorizes the 
Board to make exceptions and adjustments to TILA for any class of 
transactions to effectuate the statute's purposes, which include 
facilitating consumers' ability to compare credit terms and helping 
consumers avoid the uninformed use of credit. 15 U.S.C. 1601(a), 
1604(a). In this case, the Board believes an exception from TILA's 
grouped together and segregation requirement is necessary to effectuate 
the Act's purposes for transactions secured by real property or a 
dwelling. As noted above, many consumers may not read information if it 
is excessive in length, and if unable to identify relevant information 
quickly are likely to become frustrated and not read the disclosures. 
The Board is concerned that allowing creditors to combine the 
information in proposed Sec.  226.38(j) with other required information 
could contribute to ``information overload,'' distract from other 
important disclosures, such as the APR or monthly payments, and may 
increase the likelihood that consumers will not read the disclosures. 
Thus, the Board believes that requiring these disclosures to be 
separate from the other required disclosures will serve TILA's purpose 
to avoid the uninformed use of credit. 15 U.S.C. 1601(a).
37(c) Terminology
37(c)(1) Consistent Terminology
    Currently, there is no requirement that TILA disclosures for 
closed-end credit use consistent terminology. Consumer testing showed 
that some participants were confused when different terms are used for 
the same information. For example, when the terms loan amount, 
principal, and loan balance were used, some participants attributed 
different meaning to each term used. Based on these findings, the Board 
proposes Sec.  226.37(c)(1) to require the use of consistent 
terminology for the disclosures under proposed Sec. Sec.  226.38, 
226.19(b), 226.20(c) and 226.20(d). The Board believes that using 
consistent terminology will enhance a consumers' ability to identify, 
review, and comprehend disclosed terms across all disclosures and 
therefore, avoid the uninformed use of credit. Proposed comment 
37(c)(1)-1 clarifies that terms do not need to be identical, unless 
otherwise specified, but must be close enough in meaning to enable the 
consumer to relate the disclosures to one another. Proposed comment 
37(c)(1)-2 provides guidance on combining terms for transactions 
secured by real property or a dwelling when more than one numerical 
disclosure would be the same, and provides an example relating to the 
total payments and amount financed disclosures required under proposed

[[Page 43290]]

Sec. Sec.  226.38(e)(5)(i) and 226.38(e)(5)(iii), respectively.
37(c)(2) Terms Required To Be More Conspicuous
    Currently TILA Section 122(a) and Sec.  226.17(a)(2) require 
creditors to disclose the terms ``finance charge'' and ``annual 
percentage rate,'' together with a corresponding dollar amount and 
percentage rate, more conspicuously than any other disclosure, except 
the creditor's identity under Sec.  226.18(a). 15 U.S.C. 1632(a). Under 
TILA Section 103(u), the finance charge and the annual percentage rate 
are material disclosures; failure to disclose either term extends the 
right of rescission under TILA Section 125, and can result in actual 
and statutory damages under TILA Section 130(a). 15 U.S.C. 1602(u); 15 
U.S.C. 1635, 1640(a).
    Finance charge: interest and settlement charges. Section 226.18(d), 
which implements TILA Sections 128(a)(3) and (a)(8), requires creditors 
to disclose the ``finance charge,'' using that term, and a brief 
description such as ``the dollar amount the credit will cost you'' for 
closed-end credit. 15 U.S.C. 1638(a)(3), (a)(8). Consumer testing 
showed that participants could not correctly explain what the finance 
charge represented. Many consumers recognized that the finance charge 
included all of the interest they would pay over the loan's term, but 
did not know that it also included fees. Most participants did not find 
the finance charge to be useful in evaluating a loan offer. However, 
some participants expressed a general interest in knowing the 
information.
    Based on these results, the Board tested a form with the finance 
charge disclosed as ``interest and settlement charges,'' to more 
closely represent the components of the finance charge. Participants 
generally understood the term, but still stated that they did not find 
the term very useful, particularly when compared to other information 
such as the interest rate or monthly payments. Consumer testing 
suggests that highlighting terms that are not useful in the decision-
making process may generally diminish consumers' ability to understand 
other key terms.
    For these reasons, and as discussed more fully in the discussion of 
proposed Sec.  226.38(e)(5)(ii), the Board proposes to exercise its 
authority under TILA Section 105(a) to make certain exceptions to the 
disclosure of the finance charge under TILA Section 128(a)(3) and TILA 
Section 122(a). 15 U.S.C. 1604(a); 1632(a); 1638(a)(3). First, 
creditors would be required to disclose the finance charge as 
``interest and settlement charges,'' not as the ``finance charge'' as 
required by TILA Section 128(a)(3). 15 U.S.C. 1638(a)(3). Second, the 
disclosure of interest and settlement charges would not have to be more 
conspicuous than other terms, as required by TILA Section 122(a). 15 
U.S.C. 1632(a).
    The exception to TILA's requirements that the finance charge be 
disclosed as the ``finance charge'' and that it be more conspicuous 
than other information is proposed pursuant to TILA Section 105(a). 15 
U.S.C. 1604(a). The Board has authority under TILA Section 105(a) to 
adopt ``such adjustments and exceptions for any class of transactions 
as in the judgment of the Board are necessary or proper to effectuate 
the purposes of this title, to prevent circumvention or evasion 
thereof, or to facilitate compliance therewith.'' 15 U.S.C. 1601(a), 
1604(a). The class of transactions that would be affected is closed-end 
transactions secured by real property or a dwelling. The Board believes 
an exception from TILA's requirements is necessary and proper to 
effectuate TILA's purposes to assure meaningful disclosure and informed 
credit use. Consumer testing showed that disclosing the finance charge 
as ``interest and settlement charges'' improved participants' 
understanding of the information, even though the figure may not 
include all interest and settlement charges applicable to the 
transaction. (See discussion under proposed Sec.  226.4 regarding 
content and calculation of the interest and settlement charges.) 
Moreover, consumer testing showed that participants did not find the 
interest and settlement charges as useful, when choosing or evaluating 
a loan product, as other information, such as whether the loan has an 
adjustable rate or the monthly payment amount.
    In addition, and for the reasons discussed more fully under 
proposed Sec.  226.38(e)(5)(ii) regarding interest and settlement 
charges, the proposal would group the interest and settlement charges 
disclosure with other disclosures relating to the total cost of the 
loan offered, such as the total of payments and the amount financed. 
Consumer testing conducted by the Board, as well as basic document 
design principles, shows that grouping related concepts and figures 
makes it easier for consumers to identify, comprehend, or use disclosed 
terms.
    Annual percentage rate. TILA Section 122(a) and Sec.  226.17(a)(1) 
require that the term ``annual percentage rate,'' when disclosed with 
the corresponding percentage rate, be disclosed more conspicuously than 
any other required disclosure. 15 U.S.C. 1632(a). The Board is 
proposing to revise the description of the APR and require that 
creditors provide context for the APR by disclosing it on a scaled 
graph with explanatory text, as discussed more fully under proposed 
Sec. Sec.  226.38(b). In addition, the Board is proposing Sec.  
226.37(c)(2) to implement TILA Section 122(a) for transactions secured 
by real property or a dwelling. 15 U.S.C. 1632(a). Section 226.37(c)(2) 
would require that creditors disclose the APR in a 16-point font, in a 
prominent location, and in close proximity to the scaled graph and 
explanations proposed under Sec.  226.38(b)(2) through (4).
    As discussed under proposed Sec.  226.38(b), the APR is one of the 
most important terms disclosed about the loan; it is the only single, 
unified number available to help consumers understand the overall cost 
of a loan. To this end, the Board believes it is essential that 
consumers be able to identify the APR easily. Consumer testing and 
basic document design principles show that participants generally pay 
greater attention to figures, such as numbers, percentages and dollar 
signs, than to terminology that may accompany, describe or label any 
disclosed figure. However, the TILA disclosure contains many numerical 
figures that consumers must identify and review. Given that the Board 
is proposing to require a minimum 10-point font for disclosure of other 
terms on the TILA (see discussion under proposed comment 37(a)(1)-2), 
and based on document design principles, the Board consumer tested 
disclosing the APR figure in a larger font and in bold text to make it 
more readily noticeable as compared to other disclosed terms. When 
tested in this manner, participants were able to easily identify the 
APR. Based on consumer testing, the Board believes that a 16-point font 
requirement for the APR is sufficient to highlight the APR. The Board 
also notes that the approach of requiring at least a 16-point font for 
the APR disclosure is consistent with the approach taken by the Board 
in revising the purchase APR disclosure required under TILA for open-
end credit. 74 FR 5244; Jan. 29, 2009.
    Proposed comment 37(c)-3(i) through (iii) would provide further 
guidance on the more conspicuous requirement and would clarify that the 
APR must be more conspicuous only in relation to other required 
disclosures under proposed Sec.  226.38, and only as required under 
proposed Sec.  226.37(c)(2) and Sec.  226.38(b). Proposed comment 
37(c)-4 would provide guidance on how creditors can comply with the 
more

[[Page 43291]]

conspicuous requirement for transactions secured by real property or a 
dwelling.
    The Board seeks comment on whether the APR should be made more or 
less prominent using a larger or smaller font-size, and whether 
different graphs or visuals could be used to provide better context for 
the APR. The Board also seeks comment on the relative advantages and 
disadvantages of a graphic-based versus text-based approach to 
disclosing the APR, and the potential operational changes, 
difficulties, or costs that would be incurred to implement the graphic-
based APR disclosure requirement for transactions secured by real 
property or a dwelling.
37(d) Specific Formats
    Currently, Sec.  226.17(a)(1) does not impose special format design 
or location requirements on disclosures for closed-end credit. However, 
as discussed more fully under proposed Sec.  226.38, consumer testing 
showed that the current TILA form did not present key loan information 
in a manner that was noticeable and easy for consumers to understand. 
For example, the payment schedule required under current Sec.  
226.18(g) did not effectively demonstrate to participants the 
relationship between monthly payments and an adjustable interest rate 
feature. Consumer testing also showed that the current TILA form 
highlighted terms that confused many participants. For example, most 
participants incorrectly assumed the amount financed was the same as 
the loan amount, a term not required on the current TILA form. In other 
instances, the current TILA form emphasized information that 
participants generally understood, but did not find useful or 
important, such as the total of payments. Many participants also noted 
that the current TILA form failed to include information they would 
find useful when shopping or evaluating a loan offer, such as the 
contract interest rate and settlement charges.
    As discussed under proposed Sec.  226.19, consumer testing of the 
current ARM loan program disclosure and the CHARM booklet also revealed 
ineffective presentation of information relating to adjustable rate 
loan programs. Many participants found the narrative format and 
terminology used in the current ARM loan program disclosure 
complicated, dense, and difficult to read and understand. With respect 
to the CHARM booklet, many participants generally indicated that the 
information it contained was informative and educational, but they 
would be unlikely to read it because it was too long.
    In addition, as noted previously, consumer testing suggests that 
consumers may not read information carefully if it is excessive in 
length, and if unable to identify relevant information quickly are 
likely to become frustrated and not read the disclosures. As discussed 
more fully under proposed Sec.  226.37(a) through (c), this suggests 
highlighting and structuring disclosures in a particular manner to 
improve clarity, identification and comprehension of disclosed terms.
    To address the problems with the current TILA form and ARM loan 
program disclosures, the Board used various formats to present key loan 
information, such as tabular forms and question and answer format. 
Consumer testing suggests that using tabular forms improved 
participants' ability to readily identify and understand key 
information, as discussed under proposed Sec. Sec.  226.19(b) and 
226.38(c). For example, current ARM loan program disclosures provide 
information in narrative form, which participants found difficult to 
read and understand. However, consumer testing showed that when 
information about interest rate, monthly payment and loan features was 
presented in tabular format, participants found the information easier 
to locate and their comprehension of the disclosed terms improved. The 
benefits of disclosing important information in a tabular format are 
consistent with the results of consumer testing conducted by the Board 
in revising credit card disclosures. 74 FR 5244; Jan. 29, 2009. 
Consumer testing also showed that using question and answer format 
improved participants' ability to recognize and understand potentially 
risky or costly features of a loan, as discussed under proposed 
Sec. Sec.  226.19 and 226.38(d). Consumer testing and basic document 
design principles suggest that keeping language and design elements 
consistent between forms improves consumers' ability to identify and 
track changes in the information being disclosed. As a result, the 
Board also integrated the question and answer format used on the 
revised TILA model form into ARM loan program disclosures required 
under proposed Sec.  226.19(b).
    To present key loan terms more effectively, the Board also used 
specific location and structure requirements. Consumer testing suggests 
that the location and order in which information is presented impacts 
consumers' ability to find and comprehend the information disclosed. 
For example, as discussed under proposed Sec.  226.38(a), disclosing 
key information, such as the loan term, amount, type, and settlement 
charges, before other required disclosures and in a tabular format 
improved participants' ability to quickly and accurately identify key 
loan terms. In another example, participants' ability to identify the 
frequency of rate adjustments after an introductory period expired also 
improved when this information was included both in the loan summary 
section at the top of the revised TILA model form, and then again below 
in the interest rate and payment summary section.
    Based on consumer testing results, basic document design 
principles, and for the reasons discussed more fully under each of the 
following subsections, the Board is proposing to establish special 
format rules for: disclosures under proposed Sec.  226.38 for 
transactions secured by real property or a dwelling; ARM loan program 
disclosures under proposed Sec.  226.19(b) for adjustable rate 
transactions; ARM adjustment notices under proposed Sec.  226.20(c); 
and periodic statements required for payment option loans that are 
negatively amortizing under proposed Sec.  226.20(d). The special rules 
regarding format, structure and location of disclosures are noted in 
proposed Sec.  226.37(d)(1) through (10). Proposed comments 37(d)-1 and 
-2 would provide guidance to creditors on how to comply with the 
special format rules noted in proposed Sec.  226.37(d)(1) through (10) 
regarding prominence and close proximity of disclosed terms.
37(e) Electronic Disclosures
    Currently, under Sec.  226.17(a)(1) creditors are permitted to 
provide in electronic form any TILA disclosure for closed-end credit 
that is required to be provided or made available to consumers in 
writing if the consumer affirmatively consents to receipt of electronic 
disclosures in a prescribed manner. Electronic Signatures in Global and 
National Commerce Act (the E-Sign Act), 15 U.S.C. 7001 et seq. The 
Board proposes Sec.  226.37(e) to allow creditors to provide required 
disclosures for transactions covered by proposed Sec.  226.38 in 
electronic form in accordance with the requirements under Sec.  
226.17(a)(1).

Section 226.38 Content of Disclosures for Credit Secured by Real 
Property or a Dwelling

38(a) Loan Summary
    To shop for and understand the cost of credit, consumers must be 
able to identify and understand the key credit terms offered to them. 
As discussed

[[Page 43292]]

below, the Board's consumer testing suggested that loan amount, loan 
term and loan type are key terms that consumers are familiar with and 
expect to see on closed-end mortgage disclosures, together with 
settlement charges and whether a prepayment penalty would apply to 
their loan.
The Board's Proposal
    The Board proposes to require creditors to provide the following 
key loan features in a loan summary section: loan amount, loan term, 
loan type, the total settlement charges, whether a prepayment penalty 
applies and, the maximum amount of the penalty. The purpose of the 
proposed disclosures is to improve their effectiveness and consumer 
comprehension. A concise loan summary would help consumers compare loan 
offers; a summary may also help consumers determine whether they can 
afford the loan they are offered, and whether the disclosure presents 
the same loan terms they discussed with their mortgage broker or 
lender.
    The Board conducted consumer testing of loan summary disclosures. 
Participants were able to identify the exact loan amount, what type of 
a loan they were being offered, how long they would have to pay off 
their loan, how much they would have to pay in settlement charges, and 
whether a prepayment penalty would apply. A discussion of the items 
that would be included in the loan summary follows.
38(a)(1) Loan Amount
    Currently creditors are not required to disclose the loan amount 
for closed-end mortgages, except for loans subject to HOEPA. Under 
Sec.  226.32(c)(5), creditors are required to disclose the total amount 
borrowed. The Board is proposing to require a similar disclosure of the 
loan amount for all transactions secured by a real property or a 
dwelling. Proposed Sec.  226.38(a)(1) would require creditors to 
disclose ``loan amount,'' which would be defined as the principal 
amount the consumer will borrow reflected in the note or loan contract. 
The loan amount is a core loan term that the consumer should be able to 
verify readily on the disclosure. Disclosing the loan amount may also 
alert the consumer to fees that are financed in addition to the 
principal balance.
38(a)(2) Loan Term
    Currently, Regulation Z requires creditors to disclose the number 
of payments but not the term of the loan. The Board believes that the 
loan term is an important fact about the loan that consumers should 
know when evaluating a loan offer. Consumer testing of current model 
forms conducted by the Board indicated that some consumers are not able 
to readily identify the loan term from the number of payments disclosed 
in the current disclosures. Although some participants could determine 
the loan term by dividing by 12 the number of months shown in the 
payment schedule disclosed under Sec.  226.18(g), other participants 
could not readily figure the term of the loan offered, particularly for 
loans that have multiple payment levels, such as discounted adjustable-
rate mortgages. For these reasons, the Board is proposing to require 
disclosure of the loan term in the summary section for loans covered by 
Sec.  226.38, and to define ``loan term'' for these purposes as the 
time to repay the obligation in full. For instance, instead of 
disclosing the number of months for each payment amount for variable 
interest rate loans and requiring the consumer to add up those months 
to determine the loan term, the proposed disclosure would state ``Loan 
term: 30 years.'' Likewise, for a 10-year loan with a balloon payment 
due in year 10 and an amortization schedule of 30 years, the proposed 
disclosure would state ``Loan term: 10 years.''
38(a)(3) Loan Type and Features
    Regulation Z does not require the creditor to disclose the type of 
the loan, except in the case of loans with variable interest rates. 
Current Sec.  226.18(f) requires a disclosure of a variable rate if the 
annual percentage rate may increase after consummation. The Board's 
consumer testing indicates that the current variable rate disclosures 
may not clearly convey whether the loan has a fixed or a variable 
interest rate. The Board believes that a specific disclosure of a loan 
type offered will assist consumers in better understanding whether a 
loan features a rate that may increase after consummation, so that the 
consumer may evaluate whether they want a loan in which the rate and 
payments can increase.
    The Board is proposing to require a disclosure of the loan type in 
the loan summary section for loans covered by Sec.  226.38. Proposed 
Sec.  226.38(a)(3)(i) would require that a loan be classified as one of 
three types: an ``adjustable-rate mortgage (ARM),'' a ``step-rate 
mortgage,'' or a ``fixed-rate mortgage'' using those terms. The 
categories proposed in Sec.  226.38(a)(3)(i) apply only to disclosures 
requires for closed-end transaction secured by real property or a 
dwelling, and are different from the categories in Sec.  226.18(f) and 
commentary to Sec.  226.17(c)(1). Proposed Sec.  226.38(a)(3)(ii) would 
require an additional disclosure if the loan has one or more of the 
following three features: ``negative amortization,'' ``interest-only 
payments,'' or ``step-payments,'' using those terms. The related 
commentary would provide examples for each loan type and feature.
38(a)(3)(i) Loan Type
    As discussed above, consumer testing indicated that the current 
variable rate disclosure is not sufficiently clear for many consumers. 
When presented with a current closed-end model form for an adjustable-
rate mortgage, over half of the participants understood that the 
interest rate would change. However, several participants inferred this 
from the different monthly payments in the payment schedule, not 
because the check box on the form indicated that the loan had a 
``variable rate.'' A few participants indicated that they did not know 
whether the rate would change. Some participants commented that 
although the current model form used the term ``variable rate,'' they 
were more familiar with the term ``adjustable rate.'' As a result, the 
Board tested revised disclosures using the term ``adjustable rate 
mortgage'' in the loan summary section. All participants who were shown 
a revised disclosure for a variable rate transaction using the term 
``adjustable-rate mortgage'' understood that the interest rate and 
payments could change during the loan's term.
    Proposed Sec.  226.38(a)(3)(i) would define an adjustable-rate 
mortgage as a transaction in which the annual percentage rate may 
increase after consummation; a step-rate mortgage as a transaction in 
which the interest rate will change after consummation as specified in 
the legal obligation between the parties; and a fixed-rate mortgage as 
a transaction that is neither an adjustable-rate mortgage nor a step-
rate mortgage. Proposed comment 38(a)(3)(i)(A)-2 would offer examples 
of adjustable-rate mortgages and clarify that some variable-rate 
transactions described in comment 17(c)(1)(iii)-4, such as certain 
renewable balloon-payment, preferred-rate and price-level-adjusted 
loans, would be considered fixed-rate mortgages for the purposes of the 
``loan type'' disclosure in the loan summary required by Sec.  
226.38(a). This follows the current approach in comment 17(c)(1)-11 
which provide that disclosures for certain variable-rate transactions 
should be based on the interest rate that applies at consummation.
    Proposed Sec.  226.38(a)(3)(i)(B) would require the creditor to 
disclose a loan as a ``step-rate mortgage'' if the interest rate will 
change after consummation,

[[Page 43293]]

provided all such interest rates are specified in the legal obligation 
between the parties. Under existing guidance, such a loan would not be 
considered a variable rate loan. The Board believes that for the 
purposes of the loan summary, which is to alert the consumer to the 
possibility that their interest rate and payment could increase after 
consummation, step-rate loans should not be identified as fixed or 
variable rate loans, even though they share certain features with both 
loan types. Proposed comment 38(a)(3)(i)(B)-2 would clarify that 
certain preferred-rate loans would not be considered step-rate 
mortgages for the purposes of the ``loan type'' disclosures. Proposed 
comment 38(a)(3)(i)(C)-1 would offer examples of fixed-rate mortgages 
and explain which variable-rate transactions described in comment 
17(c)(1)(iii)-4 would be considered fixed-rate mortgages for the 
purposes of the ``loan type'' disclosure.
38(a)(3)(ii) Loan Features
    The general classification of loans as fixed rate, adjustable rate 
and step rate would enable consumers to understand what loan type they 
are being offered and to shop for loan products according to consumers' 
needs and preferences. However, these broad categories of loan types 
are not sufficient to warn consumers about the potential risks that a 
specific loan may carry. As discussed previously, nontraditional 
mortgage products with negatively amortizing or interest-only payments 
grew in popularity in recent years, subjecting consumers to the risk of 
payment shock. Disclosures should clearly alert consumers to these 
features before the consumer becomes obligated on the loan. To alert 
consumers to potentially risky loan features, the Board is proposing to 
require an additional disclosure for each loan type in the loan summary 
if the loan has step-payments, payment option or negative amortization 
features, or interest-only payments.
    Proposed Sec.  226.38(a)(3)(ii) would require creditors to disclose 
whether a loan would have one or more of the following features: Step-
payments if the legal obligation permits the periodic monthly payment 
to increase by a set amount for a specified amount of time; a payment 
option feature if the legal obligation permits the consumer to make 
payments that result in negative amortization and other types of 
payments; a negative amortization feature if the legal obligation 
requires the consumer to make payments that result in negative 
amortization--that is, the legal obligation does not permit the 
consumer to make payments that would cover all interest accrued or all 
interest accrued and principal; or an interest-only feature if the 
legal obligation permits or requires the consumer to make one or more 
regular periodic payments of interest accrued and no principal, and the 
legal obligation does not require or permit any payments that would 
result in negative amortization.
    Proposed comment 38(a)(3)(ii)(A)-1 would offer an example of a 
step-payment feature. For example, if the consumer is offered a fixed-
rate mortgage with 24 monthly payments at $1,000 that will later 
increase to $1,200 and remain at that level for a specified period of 
time, and the loan amortizes fully over the loan term, the creditor 
would disclose ``Fixed-Rate Mortgage, step-payments'' for the loan type 
in the loan summary. Proposed comment 38(a)(3)(ii)(B) and (C)-1 would 
clarify that a creditor should disclose the loan feature as either 
``payment option'' or ``negative amortization'' but not both, whereas a 
loan may have both a ``step-payment'' feature and either a ``payment 
option'' or a ``negative amortization'' feature. Moreover, for a loan 
to have a ``payment option'' feature, all periodic payment choices must 
be specified in the legal obligation and must include a choice to make 
payments that may result in negative amortization. Proposed comment 
38(a)(3)(ii)(D)-1 would provide that a creditor should not disclose 
both an ``interest-only'' feature and a ``payment option'' feature or 
``negative amortization'' feature in a single transaction, whereas a 
loan may have both an ``interest-only'' feature and a ``step-payment'' 
feature.
38(a)(4) Total Settlement Charges
    Currently, TILA and Regulation Z disclose settlement charges 
through the finance charge. TILA Section 128(a)(3) and Sec.  226.18(d) 
require the creditor to disclose the finance charge. 15 U.S.C. 
1638(a)(3). TILA Section 106(a) defines the ``finance charge'' as the 
``sum of all charges, payable directly or indirectly by the person to 
whom the credit is extended, and imposed directly or indirectly by the 
credit or as an incident to the extension of credit.'' 15 U.S.C. 
1605(a). Section 226.4(a) further defines the ``finance charge'' as 
``the cost of consumer credit as a dollar amount.'' The finance charge 
includes any interest due under the loan terms as well as other charges 
incurred in connection with the credit transaction. See Sec.  226.4(a) 
and (b).
    Consumer testing indicated that participants did not understand the 
term ``finance charge.'' Most participants believed the term referred 
only to the total amount of interest they would pay if they kept the 
loan to maturity, but did not always realize that it also includes the 
fees and costs incurred as part of the credit transaction. Most 
participants did not find the finance charge useful in evaluating a 
loan offer.
    The disclosure of settlement charges is governed by RESPA, 12 
U.S.C. 2601-2617, and implemented by HUD under Regulation X, 24 CFR 
part 3500. Under RESPA and Regulation X, creditors must provide a GFE 
of settlement costs within three business days of application for a 
mortgage, which is the same time creditors must provide the early TILA 
disclosure. RESPA and Regulation X also require a statement of the 
final settlement costs at loan closing (``HUD-1 or HUD-1A settlement 
statement''). Under the new final rule for Regulation X, effective 
January 1, 2010, the GFE is subject to certain accuracy requirements, 
absent changed circumstances. RESPA and Regulation X do not, however, 
provide any remedies for a violation of the accuracy requirements.
    Consumer testing consistently demonstrated that participants wanted 
to see settlement charges on the revised TILA disclosure. Participants 
stated that including such a disclosure would help them confirm 
information that the loan originator told them about the cost of the 
loan during the mortgage application process. During consumer testing, 
participants indicated that they were often surprised at the closing 
table by substantial increases in the settlement charges. Despite these 
changes, consumers reported that they proceeded with closing because 
they lacked alternatives (especially in the case of a home purchase 
loan), or were told that they could easily refinance with better terms 
in the near future. Participants indicated that they would like an 
estimate of their settlement charges as early as possible in the loan 
process, and that it would be helpful to have the settlement charges 
displayed in the context of the other loan terms, rather than on a 
separate GFE or HUD-1 or HUD-1A settlement statement.
    For these reasons, the Board proposes Sec.  226.38(a)(4) to require 
creditors to disclose the ``total settlement charges,'' using that 
term, as those charges are disclosed under Regulation X, 12 CFR part 
3500. The proposed rule would further require, as applicable, a 
statement of the amount of the charges already included in the loan 
amount. Finally, the proposed rule would require disclosure of a 
statement, as applicable, that the total amount does not include a down 
payment, along with

[[Page 43294]]

a reference to the GFE or HUD-1 for more details.
    Proposed comment 38(a)(4)-1 would clarify that on the early TILA 
disclosure required by Sec.  226.19(a)(1)(i), the creditor must 
disclose the amount of the ``Total Estimated Settlement Charges'' as 
disclosed on the GFE under Regulation X, 12 CFR part 3500, Appendix C. 
For the final TILA disclosure required by proposed Sec.  
226.19(a)(2)(ii), the creditor would be required to disclose the sum of 
the final settlement charges. The creditor would be permitted to use 
the sum of the ``Charges That Cannot Increase,'' ``Charges That In 
Total Cannot Increase By More Than 10%,'' and ``Charges That Can 
Change'' as would be disclosed in the column entitled ``HUD-1'' on page 
three of the HUD-1 or on page two of the HUD-1A settlement statement 
under Regulation X, 12 CFR part 3500, Appendix A. Alternatively, the 
creditor would be permitted to provide the consumer with the final HUD-
1 or HUD-1A settlement statement. For transactions in which a GFE, HUD-
1 or HUD-1A are not required, the proposed comment would clarify that 
the creditor may look to such documents for guidance on how to comply 
with the requirements of this section.
    The Board recognizes that creditors are not currently required to 
provide the final settlement charges before consummation. Regulation X, 
24 CFR 3500.10(b), permits the settlement agent to provide the 
completed HUD-1 or HUD-1A at settlement. However, proposed Sec.  
226.19(a)(2)(ii) would require the creditor to provide the TILA 
disclosure required by proposed Sec.  226.38, including the total 
settlement charges disclosed under proposed Sec.  226.38(a)(4), so that 
the consumer receives it at least three business days before 
consummation. In addition, under proposed Sec.  226.19(a)(2)(iii)-
Alternative 1, if anything changes during the three-business-day 
waiting period, including total settlement charges, the creditor would 
be required to supply another final TILA disclosure and three-business-
day waiting period before consummation could occur. Consumers could 
waive the three-day waiting periods for bona fide personal financial 
emergencies.
    The Board recognizes that proposed Sec. Sec.  226.19(a)(2)(ii), 
226.19(a)(2)(iii)-Alternative 1, and 226.38(a)(4) would require the 
creditor to disclose final settlement charge information several days 
in advance of consummation. These requirements would impose a cost on 
creditors, which may be passed on to consumers. Operational procedures 
and systems would need to be changed significantly to determine several 
days before closing the precise total amount of settlement charges that 
the consumer would pay at settlement. The Board believes, however, that 
the cost would be outweighed by the benefit to consumers of knowing 
their final total settlement charges three business days before 
consummation. This proposal would enable consumers to review and verify 
cost information in advance of consummation, and contact the creditor 
with questions or take other action, as appropriate.
38(a)(5) Prepayment Penalty
Current Disclosure Requirements
    Under TILA Section 128(a)(11) and existing Sec.  226.18(k)(1), if 
an obligation includes a finance charge computed by applying a rate to 
the unpaid principal balance (a ``simple-interest obligation''), 
creditors must disclose whether or not a penalty may be imposed if the 
consumer prepays the obligation in full. Comment 18(k)(1)-1 states that 
the term ``penalty'' refers only to charges that are assessed because 
of the prepayment in full of a simple-interest obligation, in addition 
to other amounts.
    The existing model form in Appendix H-2 contains checkboxes for 
creditors to indicate whether a consumer ``may'' or ``will not'' have 
to pay a penalty if the consumer prepays the obligation in full. The 
Board adopted these checkbox options in 1980, in response to concerns 
that a statement that a prepayment penalty ``will be imposed'' would be 
misleading. The Board noted that many credit contracts allow a penalty 
to be imposed only if the loan is paid off within a certain time period 
after consummation or under other specific circumstances. See 45 FR 
80648, 80682; Dec. 5, 1980.
Discussion
    Consumer testing of the current disclosure showed that participants 
had difficulty identifying whether a loan would have a prepayment 
penalty and in what circumstances it would apply. For example, in the 
Board's consumer testing, participants did not understand that 
refinancing a loan or paying off the loan with proceeds from the sale 
of the home securing the loan could trigger a prepayment penalty. 
Similarly, consumer testing conducted by FTC staff found that two-
thirds of participants who looked at a sample of the existing TILA 
disclosure showing a loan with a two-year prepayment penalty did not 
understand that a prepayment penalty would be charged if the consumer 
refinanced the loan two years after origination.\70\ Some participants 
thought that a prepayment penalty could be charged only if they paid 
off their entire loan from their own funds, such as with money obtained 
through a sudden financial windfall.\71\
---------------------------------------------------------------------------

    \70\ Improving Consumer Mortgage Disclosures at 78.
    \71\ Id.
---------------------------------------------------------------------------

    The Board developed and tested a revised prepayment penalty 
disclosure. Participants in the Board's consumer testing generally 
understood that if they prepaid the loan within the time specified in 
the disclosure, a penalty could be imposed. Participants also 
understood that the penalty could be imposed if they refinanced or sold 
the home during the time the penalty was in effect.
The Board's Proposal
    Under proposed Sec.  226.38(a)(5), if the legal obligation permits 
a creditor to impose a prepayment penalty the creditor must disclose in 
the ``Loan Summary'' section the period during which the penalty 
provision applies, the maximum possible penalty, and the circumstances 
in which the creditor may impose the penalty. If the legal obligation 
does not allow the creditor to impose a prepayment penalty, the 
creditor would make no disclosure regarding prepayment penalties in the 
``Loan Summary'' section. (However, proposed Sec.  226.38(d)(1)(iii) 
requires the creditor to disclose whether or not the legal obligation 
permits the creditor to charge a prepayment penalty in the ``Key 
Questions about Risk'' section.)
    Maximum penalty amount. The Board is proposing to require creditors 
to disclose the maximum penalty possible under the legal obligation. 
Prepayment penalties may be substantial. The existence of a prepayment 
penalty may make it difficult to refinance a loan or sell a home. This 
may be particularly difficult for consumers who have adjustable rate 
loans or other loans that pose the risk of payment shock, as these 
consumers may believe that they can refinance or sell the home to avoid 
the increased payments. Thus, it is important for consumers to know the 
maximum penalty amount before they are obligated on a loan.
    Under proposed Sec.  226.38(a)(5) and (d)(1)(iii), creditors could 
not disclose the method or formula they use to determine the penalty 
with the disclosures required by Sec.  226.38. Although some consumers 
might benefit from knowing how a prepayment penalty will be determined, 
the Board is concerned that consumers may be overloaded with 
information if the

[[Page 43295]]

calculation method is included with the segregated information. Many 
consumers would not read the prepayment penalty disclosure at all if it 
contains mathematical procedures and terms. Creditors may, of course, 
disclose how a prepayment penalty will be determined, as long as the 
disclosure is not disclosed together with the segregated disclosures.
    Creditors also could not disclose a range of possible prepayment 
penalties or give examples of penalty amounts assuming the consumer 
prepaid at a hypothetical point in time under proposed Sec.  
226.38(a)(5) or (d)(1)(iii). The Board believes that it is important 
that prepayment penalty disclosures simply and clearly convey to 
consumers the potential magnitude of the prepayment penalty. 
Disclosures based on assumptions or averages could undermine the impact 
of the maximum penalty disclosure.
    Additional penalty disclosures. Consumer testing indicated that 
some consumers do not understand that paying off the loan with the 
proceeds of a refinance loan or a home sale can trigger a prepayment 
penalty provision, as discussed above. Therefore, the proposed rule 
would require creditors to disclose the conditions upon which and the 
period during which they may impose a prepayment penalty.
    It is important for a consumer to know what actions will trigger a 
prepayment penalty provision before obtaining a loan with such a 
provision. Consumers likely will not receive the loan agreement 
containing the prepayment penalty provision until consummation and may 
have little opportunity to review the agreement before becoming 
obligated. Moreover, a prepayment penalty is but one of many loan terms 
for consumers to consider at closing. The Board believes that including 
key information about a prepayment penalty provision in transaction-
specific disclosures would help consumers avoid the uninformed use of 
credit.
    Coverage. Comment 226.18(k)(1)-1 clarifies that Sec.  226.18(k)(1) 
applies to transactions in which interest calculations take into 
account all scheduled reductions in principal, whether interest 
calculations are made daily or at some other interval. Proposed comment 
38(a)(5)-1 is consistent with comment 18(k)(1)-1. Proposed Sec.  
38(j)(2) reflects existing Sec.  226.18(k)(2) on rebate disclosures, as 
discussed below. Existing comment 18(k)-2 discusses cases where a 
single transaction involves both a rebate and a penalty. Proposed 
comment 38(a)(5)-8 reflects this existing commentary.
    Definition of prepayment penalty. Comment 18(k)(1)-1 states that 
under Sec.  226.18(k)(1) the term ``penalty'' refers only to those 
charges that are assessed because of the prepayment in full of a 
simple-interest obligation, in addition to other amounts. Comment 
18(k)(1)-1 clarifies that interest charges for any period after 
prepayment in full is made and minimum finance charges are examples of 
prepayment penalties. The Board is proposing to revise comment 
18(k)(1)-1 for clarity by substituting ``charges determined by treating 
the loan balance as outstanding for a period after prepayment in full 
and applying the interest rate to such `balance' '' for ``interest 
charges for any period after prepayment,'' as discussed above. Proposed 
comments 38(a)(5)-2(i) and (ii) are consistent with comment 18(k)(1)-1, 
as it is proposed to be amended.
    Proposed comment 38(a)(5)-2(iii) states that origination or other 
charges that a creditor waives on the condition that the consumer does 
not prepay the loan are prepayment penalties, for transactions secured 
by real property or a dwelling. Fees imposed for a preparing a payoff 
statement and performing other services when a consumer prepays the 
obligation would not be considered a prepayment penalty under the 
proposed rule, however. Such fees are not strictly linked to a 
consumer's prepaying the obligation, as they are charged at the end of 
a loan's term as well. The Board solicits comment on this distinction.
    For purposes of some State laws, a minimum finance charge is not 
considered a prepayment penalty. For purposes of disclosure under TILA, 
a minimum finance charge is considered a prepayment penalty. Existing 
comment 18(k)(1)-1 and proposed comment 38(a)(5)-2 are designed to 
promote clear, consistent disclosure of charges creditors may impose 
when a consumer prepays the obligation in full. The proposed rule would 
not preempt State laws unless State law disclosure requirements are 
inconsistent with the rule, and then only to the extent of any 
inconsistency.
    Existing comment 17(a)(1)-5(vii) allows creditors to disclose that 
the borrower may pay a minimum finance charge as information directly 
related to the penalty disclosure. Further, if a State or federal law 
prohibits creditors from charging a prepayment penalty but permits the 
charging of interest for some period after the consumer prepays from 
that prohibition, existing comment 17(a)(1)-5(xi) permits creditors to 
disclose that a consumer may have to pay interest for some period after 
prepayment as information directly related to the prepayment penalty 
disclosure. Comments 17(a)(1)-5(vii) and (xi), together with other 
commentary in comment 17(a)(1)-5, would not apply to transactions 
secured by real property or a dwelling, as discussed above.
    Existing comment 18(k)(1)-1 states that loan guarantee fees are 
examples of charges that are not penalties. The Board proposes to 
retain this example in comment 38(a)(5)-2. (In a separate rulemaking, 
the Board proposed to remove the example of interim interest on a 
student loan as an example of charges that are not penalties. See 74 FR 
12464, 12469; Mar. 29, 2009.)
    Disclosed as applicable; disclosure content. Proposed comment 
38(a)(5)-4 clarifies that if no prepayment penalty applies, creditors 
need not disclose that fact in the ``Loan Summary'' section of 
transaction-specific disclosures. Proposed Sec.  226.38(d)(1)(iii) 
requires creditors to disclose whether or not the legal obligation 
permits the creditor to charge a prepayment penalty in the ``Key 
Questions about Risk'' section, however. Proposed comment 38(a)(5)-5 
clarifies that creditors must disclose the maximum penalty as a 
numerical amount. This is consistent with the general rule of 
construction of the word ``amount'' required by Sec.  226.2(b)(5).
    Basis of disclosure. Proposed comment 38(a)(5)-6 explains how 
creditors determine the maximum penalty amount and contains examples 
that illustrate how those principles are applied. (Proposed comment 
38(d)(1)(iii) states that creditors may rely on proposed comment 
38(a)(5)-6 in determining the maximum prepayment penalty to be 
disclosed as one of the ``Key Questions about Risk'' disclosures.) 
Proposed comment 38(a)(5)-6 states that in all cases, the creditor 
should assume that the consumer prepays at a time when the prepayment 
penalty may be charged. The comment also states that if more than one 
type of prepayment penalty applies (for example, if the loan includes a 
minimum finance charge and the creditor may collect interest after 
prepayment), the creditor should include the maximum amount of each 
type of prepayment penalty in determining the maximum penalty possible.
    Existing comment 18(k)(1)-1 clarifies that interest charges for any 
period after a consumer prepays in full and a minimum finance charge in 
a simple interest transaction are deemed to be prepayment penalties. 
Proposed comment 38(a)(5)-6(i) and (ii) clarifies that the amount of 
such charges must be

[[Page 43296]]

counted in determining the maximum penalty.
    Proposed comment 38(a)(5)-6(iii) provides examples of how creditors 
may calculate a maximum prepayment penalty where the creditor 
determines the penalty by applying a constant rate to the loan balance 
at the time of prepayment. In such cases, the prepayment penalty amount 
is largest when the balance is as high as possible. Proposed comment 
38(a)(5)-6(iv) illustrates a method creditors could use to approximate 
the maximum penalty where the penalty amount depends on both the loan 
balance and the time at which the consumer prepays (for example, where 
a prepayment penalty on an adjustable-rate loan equals six months' 
interest payments). If the penalty amount depends on both the loan 
balance and the time at which the consumer prepays, under the proposed 
rule creditors would disclose the greater of (1) the penalty charged 
when the balance is the highest possible and (2) the penalty charged 
when the penalty rate is the highest possible (two-stage penalty 
calculation).
    The two-stage penalty calculation produces an amount that 
approximates, but does not necessarily equal, the maximum prepayment 
penalty. The Board believes, however, that the amount determined using 
the two-stage penalty calculation ordinarily will be sufficiently close 
to the actual maximum prepayment penalty that it would be appropriate 
for creditors to use the method in complying with Sec.  226.38(a)(5) 
and (d)(1)(iii). The Board solicits comment on whether the Board should 
permit creditors to use the two-stage penalty calculation where the 
penalty rate increases. Will this ``two-stage penalty calculation'' 
method produce a prepayment penalty amount that sufficiently 
approximates the maximum prepayment penalty possible for a loan? Are 
there cases where there will be a significant disparity between the 
maximum penalty determined using the two-stage penalty calculation and 
the actual maximum penalty?
    Neither the simple penalty calculation nor the two-stage penalty 
calculation will enable the creditor to determine the maximum penalty 
where the penalty rate on a negatively amortizing loan declines. In 
such a case, the creditor must determine the maximum prepayment penalty 
by determining what the penalty would be at each point during the loan 
term while the penalty is in effect.
    Requiring all creditors to base maximum penalty disclosures on the 
foregoing rules ensures standardization of disclosures. Allowing 
creditors to select their own assumptions about when consumers are 
likely to prepay would result in inconsistencies among the disclosures 
given by different creditors. The Board considered other approaches, 
such as requiring creditors to disclose the maximum prepayment penalty 
based on a single hypothetical point in time (for example, one year 
after origination). However, this approach would understate the amount 
consumers who prepay earlier would have to pay.
    Timely payment assumed. Proposed comment 38(a)(5)-7 states that 
creditors may assume that the consumer makes payments on time and may 
disregard any possible inaccuracies resulting from consumers' payment 
patterns. This is consistent with existing comment 17(c)(2)(i)-3 and 
proposed clarifications in comment 17(c)(1)-1. Proposed comment 
38(a)(5)-7 further clarifies that where the payment required by a legal 
obligation's terms is not a fully amortizing payment, the creditor must 
base disclosures on the required periodic payment and may not assume 
that the consumer will make payments that exceed the required payment.
38(b) Annual Percentage Rate
    The Board proposes to improve the APR's utility to consumers by 
making it a more inclusive measure of the cost of credit, as discussed 
under Sec.  226.4, and also by improving the manner in which the APR is 
disclosed on the TILA statement. Proposed Sec.  226.38(b)(1) would 
require the APR to be disclosed, using the term ``annual percentage 
rate'' and with the description, ``overall cost of this loan including 
interest and settlement charges.'' Proposed Sec.  226.38(b)(2) would 
require creditors to show the APR plotted on a graph, relative to (1) 
the ``average prime offer rate'' (APOR) for borrowers with excellent 
credit for a comparable loan type, in the week in which the disclosure 
is provided, and (2) the higher-priced loan threshold under Sec.  
226.35(a).\72\ Proposed Sec.  226.38(b)(3) would require an explanation 
of the APOR and higher-priced threshold. Proposed Sec.  226.38(b)(4) 
would require creditors to disclose the average per-period savings from 
a 1 percentage-point reduction in the disclosed APR. Certain loans, 
including construction loans, would be excluded from proposed Sec.  
226.38(b)(2) and (b)(3).
---------------------------------------------------------------------------

    \72\ The Board issued Sec.  226.35(a) in its 2008 HOEPA Final 
Rule; compliance with Sec.  226.35(a) is mandatory beginning on 
October 1, 2009.
---------------------------------------------------------------------------

Current Rules
    For closed-end credit, TILA Section 128(a)(4) and (a)(8) require 
creditors to disclose the ``annual percentage rate,'' using that term, 
together with a brief description such as ``the cost of your credit as 
a yearly rate.'' 15 U.S.C. 1638(a)(4), (a)(8). Section 226.18(e) 
implements these requirements. As discussed in proposed Sec.  226.37, 
TILA Section 122 and Sec.  226.17(a) require the APR, with the finance 
charge, to be more conspicuous than other disclosures except the 
disclosure of the creditor's identity. Changes to the requirements of 
Sec.  226.17(a) are discussed under Sec.  226.37.
Discussion
    The APR is the only single, unified number available to help 
consumers understand the overall cost of a loan.\73\ 15 U.S.C. 
1638(a)(4). Before enactment of TILA in 1968, creditors could advertise 
a 6 percent loan rate, but were allowed to calculate the interest 
charged to the consumer by using a simple interest, an add-on, or a 
discount rate method.\74\ Although the advertised loan rate would 
appear the same, the amount of interest consumers actually would pay 
over the loan term would differ greatly under each of these calculation 
methods.\75\ In addition, consumers were forced to evaluate different 
components of a loan's costs, such as interest rate, points, and 
closing costs, when comparing competing loan offers. The APR 
standardizes the interest rate calculation and seeks to capture the 
overall cost of the credit offered so that consumers can compare 
competing loan more easily than if they had to evaluate the 
relationship and impact of different loan costs themselves.\76\
---------------------------------------------------------------------------

    \73\ The 1998 Joint Report at 8; see also Bd. Of Governors of 
Fed. Res. Sys., 1996 Report to Congress: Finance Charges for 
Consumer Credit under the Truth in Lending Act at (April 1996).
    \74\ The 1998 Joint Report at 8.
    \75\ Id.
    \76\ Id.
---------------------------------------------------------------------------

    Participants in the Board's consumer testing generally did not 
understand the APR and often mistook it for the loan's interest 
rate.\77\ The Board tested alternative descriptive statements and 
formats for the APR, but consumers continued to be confused by the APR. 
For example, some participants thought the APR reflected future 
adjustments to the interest rate, or the maximum possible interest rate 
for a variable rate loan. A few participants recognized that

[[Page 43297]]

the APR differed from the interest rate, but were unable to articulate 
the reason. In addition, when presented with two hypothetical loan 
offers, participants did not use the APR to compare and choose between 
the offers. Instead, participants chose a loan based on one or more of 
the following pieces of information: the interest rate, monthly 
payment, and settlement costs.
---------------------------------------------------------------------------

    \77\ See also Improving Consumer Mortgage Disclosures at 35 
(finding that most respondents in consumer testing did not 
understand or were confused by the APR and generally mistook it for 
the contract interest rate).
---------------------------------------------------------------------------

The Board's Proposal
    The Board proposes to retain the APR disclosure, with several 
changes designed to improve the APR's utility for consumers. These 
proposed changes would apply only to closed-end transactions secured by 
real property or a dwelling. First, the Board proposes to revise the 
description to use simpler terminology. Proposed Sec.  226.38(b)(1) 
would require creditors to disclose the APR, expressed as a percentage, 
together with a statement that it represents the overall cost of the 
loan, including interest and settlement charges. As discussed under 
Sec.  226.4, the Board also proposes to make the APR more inclusive of 
the cost of credit. Moreover, under Sec.  226.38(c), the interest rate 
would be disclosed on the form, which would help some consumers 
understand that the APR does not represent the interest rate.
    Second, the proposed rule also would require creditors to disclose 
the APR using a graph that shows the consumer how the APR for the loan 
offered would compare to the average prime offer rate and the threshold 
for higher-priced loans under Sec.  226.35(a). This disclosure would 
help consumers understand how the APR on the loan offered to them 
compares to APRs offered to borrowers with excellent credit for a 
similar loan type, and higher-priced loans which generally are made to 
borrowers who present higher risk. Such borrowers include those with 
blemished credit histories, or with high loan-to-value ratios.
    The Board's consumer testing shows that consumers do not understand 
the APR's utility. Testing the APR with different names and 
descriptions did not measurably increase consumers' understanding of 
the APR. Although the APR was designed in part to facilitate comparison 
of competing loan products, testing suggests that most consumers do not 
compare competing loans by APR, probably because they receive only one 
TILA disclosure before they consummate a loan. If consumers comparison 
shop for a loan, they do so before they apply for a loan and likely 
shop based on oral quotes of interest rates and points.
    The Board's testing suggests that with little understanding of the 
APR and no ready and appropriate basis for comparison, many consumers 
ignore the APR in favor of information they find more accessible, such 
as the loan's monthly payment or settlement costs. Therefore, the Board 
is taking two steps to improve the disclosure of the APR. The first 
step is designed to draw consumers' attention to the APR. To do so, the 
Board proposes to require disclosure of the consumer's APR on a graph 
to highlight the APR and distinguish it from other numerical 
disclosures, including the interest rate. Consumers would be more 
likely to notice the APR plotted on the graph, in a prominent location 
on the disclosure statement. Principles of consumer design provide that 
a graphic device accommodates different learning styles. And, consumer 
research has shown that use of graphics or similar visual devices help 
consumers attend to or notice important information.\78\
---------------------------------------------------------------------------

    \78\ Kozup, John, Elizabeth Howlett, and Michael Pagano. 2008. 
``The Effects of Summary Information on Consumer Perception of 
Mutual Fund Characteristics.'' The Journal of Consumer Affairs, vol. 
42. See also Testimony of John Kozup, Assistant Professor, 
Department of Marketing, and Director, Center for Marketing and 
Public Policy, Villanova University; http://www.federalreserve.gov/events/publichearings/hoepa/2006/20060711/transcript.pdf.
---------------------------------------------------------------------------

    The Board's next proposed step is to present the APR in a context 
that is designed to facilitate understanding of the APR. The Board 
believes that consumers would be more likely to use the APR if it is 
shown to them in context of other rates, rather than in isolation as is 
presently often the case. Research on consumer behavior suggests that 
consumer choice is affected by whether a consumer is presented with a 
single option for a product or multiple options. Consumers making a 
choice in the presence of more than one option are more likely to make 
a selection based on the relative merits of the options presented, 
rather than on their own existing ``references'' for the value of the 
product.\79\ Here, the Board believes that presenting consumers with 
information about other rates, current as of the week of the consumer's 
application, would help consumers make more informed decisions about 
the loan offered.
---------------------------------------------------------------------------

    \79\ See, e.g., Hsee, Christopher K. and France Leclerc. 1988. 
``Will Products Look More Attractive When Presented Separately or 
Together?'' Journal of Consumer Research, vol. 25.
---------------------------------------------------------------------------

    Testing suggests that showing the consumer the APR in context of 
information about other APRs would result in consumer benefits. For 
example, the APR graph would cause consumers to ask the creditor 
questions about the rate offered to them and when applicable, why it 
differs from the average APR offered to borrowers with excellent credit 
histories. The proposed APR disclosure would enable consumers to 
determine whether they are being offered a loan that comports with 
their creditworthiness. A borrower who knows his or her credit history 
is excellent or very good would be informed that the loan offered is 
higher-priced. Participants in the Board's testing stated that if they 
knew they had excellent credit, they would ask the lender why they were 
being offered a higher-priced loan and what they would need to do to 
get a better offer. The Board notes that some participants indicated 
that the disclosed APR, even if higher-priced, was lower than the 
interest rate on their current loan and thus was attractive to them. 
Nevertheless, while some consumers may not be prompted by the APR graph 
to seek information about improved loan terms, testing suggests others 
may do so and benefit as a result.
    The Board recognizes that not all consumers are aware of their 
credit history, and thus may not be able to assess whether the loan 
offered is consistent with their credit standing. The Board anticipates 
that the APR graph would cause some consumers to investigate their 
credit reports. If there are errors, these consumers could take steps 
to resolve the errors. If consumers in fact have impaired credit, some 
consumers might consider whether to delay seeking a loan until they 
could repair their credit standing.
    In some instances the APR graph may be potentially confusing. That 
is, a loan may be a higher-priced loan for reasons other than the 
borrower's credit history. For example, a consumer might have little 
home equity, resulting in a high loan-to-value ratio and a higher APR. 
The Board believes that even in such cases, the APR graph nonetheless 
would be beneficial to consumers. It would prompt the consumer to ask 
questions, and creditors should be able to explain to consumers why the 
APR on a loan is higher-priced. In many cases the explanation may help 
the consumer determine whether they could take steps to get a lower 
APR. For example, if the creditor explains that the offered loan is a 
higher-priced loan because of a low down-payment, the borrower would be 
alerted that providing a larger down payment would result in a reduced 
APR and cost savings.
    The Board also notes that certain loans may be higher-priced loans 
simply because of the loan type. For example, loans that exceed the 
threshold amount for eligibility for purchase by Fannie

[[Page 43298]]

Mae and Freddie Mac, known as ``nonconforming'' or ``jumbo loans,'' may 
tend to be higher-priced loans because of the method for calculating 
the APOR. The APOR is the average APR for conforming loans offered to 
borrowers with excellent credit. In the case of such loans, creditors 
would have to explain to consumers why the loan's APR is higher-priced.
    Third, the proposal would require the creditor to disclose the 
average per-period savings from a 1 percentage-point reduction in the 
disclosed APR. The Board believes that showing consumers the 
relationship between the APR and a concrete dollar figure would help 
make the possible benefits of obtaining better loan terms more concrete 
for consumers. Showing potential savings that could result from a lower 
APR would help encourage consumers to shop and negotiate for better 
loan terms, or as discussed, to increase their downpayment, resolve 
errors in their credit report, or seek to improve their credit 
standing.
38(b)(2)
    Proposed Sec.  226.38(b)(2) would require a graph indicating the 
consumer's APR within a range of APRs beginning with the average prime 
offer rate (``APOR''), as defined in Sec.  226.35(a)(2), including the 
higher-priced mortgage loan threshold, as defined in Sec.  
226.35(a)(1), and terminating four percentage points greater than the 
higher-priced mortgage loan threshold. Proposed Sec.  226.38(b)(3) 
would require a statement of the APOR as defined in Sec.  226.35(a)(2), 
and the higher-priced mortgage loan threshold, as defined in Sec.  
226.35(a)(1), current as of the week the disclosure is produced. The 
graphic would contain different shaded areas using different scales for 
the range between the APOR and the higher-priced mortgage loan 
threshold, and for the range above the higher-priced mortgage loan 
threshold. The graphic would also label the range above the higher-
priced mortgage loan threshold as the ``high-cost zone.''
    Creditors would use the Board's table of average prime offer rates 
to find the APOR for the loan type that matches the loan being 
disclosed, for the week in which the creditor provides the disclosure. 
Creditors would follow the Board's guidance in commentary to Sec.  
226.35(a) in determining how to select the appropriate APOR. In the 
text explaining the APOR, creditors may include a statement clarifying 
that the APOR is for conforming loans only.
    The Board requests comment on any potential operational difficulty 
in producing the graph proposed in Sec.  226.38(b)(2) in an accurate 
and timely manner. Comment is also sought on whether a different 
graphical device would better draw consumers' attention to the APR and 
illustrate the APR's utility to consumers.
38(b)(3)
    To help consumers navigate the information provided by the graph, 
proposed Sec.  226.38(b)(3) would require an explanation of the average 
prime offer rate as defined in Sec.  226.35(a)(2), and the higher-
priced mortgage loan threshold, as defined in Sec.  226.35(a)(1). 
Participants in the Board's consumer testing found this statement 
helpful in understanding the information in the graph.
38(b)(4)
    Proposed Sec.  226.38(b)(4) would provide how creditors must 
calculate the average per-period savings that would result from a 1 
percentage-point reduction in the APR. (This discussion refers to 
monthly savings because most mortgage loans require monthly payments.) 
Creditors would calculate the average per-month savings by reducing the 
interest rate (or rates in the case of an ARM, as discussed in comment 
34(b)(4)-1) by 1 percentage point, computing a hypothetical total of 
payments reflecting the payment schedule at the lower rate or rates. 
The creditor would divide the difference between (1) the total of 
payments disclosed under proposed Sec.  226.38(e)(5)(i), and (2) the 
hypothetical total of payments by the number of payment periods 
required under the terms of the legal obligation. The creditor would 
report the results of this calculation as the average savings each 
month from a 1 percentage-point reduction in the APR. Proposed comment 
38(b)(4)-1 would provide guidance on this method, and would include 
examples for fixed- and adjustable-rate mortgages.
    The Board notes that the proposed method does not result in an 
exact 1 percentage-point reduction in APR, but is likely to be within a 
few basis points of a 1 percentage-point reduction. The results would 
be sufficiently accurate to show consumers that a lower APR will yield 
savings. Methods that might result in an actual 1 percentage-point 
reduction in the APR would likely be more complicated and would vary 
depending on the terms of the loan, such as whether the rate is 
variable and whether the payments amortize the loan. The Board believes 
that any additional consumer benefit from disclosing the precise 1 
percentage-point APR reduction would not be sufficient to offset the 
costs of a more complex calculation method. The Board seeks comment, 
however, on its proposed method and whether another method would 
achieve the objectives of the disclosure without imposing undue 
compliance burdens.
38(b)(5) Exemptions
    Proposed section 226.38(b)(5) would exempt construction loans, 
bridge loans, and reverse mortgages from the requirement to show the 
APR plotted on a graph (Sec.  226.38(b)(2)) and the statement of the 
APOR and the higher-priced loan threshold (Sec.  226.38(b)(3)). The 
exempted transactions are also exempt from the definition of a higher-
priced mortgage, under Sec.  226.35(a)(3) in the Board's 2008 HOEPA 
Final Rule. The Board does not publish an average prime offer rate for 
construction, bridge, or reverse mortgage loans. Thus, an exemption 
seems appropriate. The Board seeks comment, however, on whether these 
transactions should nevertheless be subject to Sec.  226.38(b)(2) and 
(3).
38(c) Interest Rate and Payment Summary
    Proposed Sec.  226.38(c) provides requirements for disclosure of 
the contract interest rate and the periodic payment for transactions 
secured by real property or a dwelling. The information proposed to be 
required by this paragraph must be in the form of a table, as provided 
in Sec.  226.38(c)(1), substantially similar to Model Forms H-19(A), H-
19(B), or H-19(C) in Appendix H. Additional formatting requirements 
would be provided in Sec.  226.37. The rules for disclosing the 
interest rate and periodic payments for an amortizing loan are provided 
in proposed Sec. Sec.  226.38(c)(2)(i) and 226.38(c)(3). Rules for 
disclosing the interest rate and periodic payments for a loan with 
negative amortization are in proposed Sec. Sec.  226.38(c)(2)(ii) and 
226.38(c)(4). Special rules for disclosing balloon payments are found 
in proposed Sec.  226.38(c)(5). Additional explanations of introductory 
rates and negative amortization are contained in proposed Sec. Sec.  
226.38(c)(2)(iii) and 226.38(c)(6), respectively. Proposed Sec.  
226.38(c)(7) provides definitions for certain terms used in Sec.  
226.38(c).
Existing Requirements for Periodic Payments
    TILA Section 128(a)(6) requires the creditor to disclose the 
number, amount, and due dates or period of payments scheduled to repay 
the total of payments, for closed-end credit. 15 U.S.C. 1648(a)(6). 
Currently, Sec.  226.18(g) implements TILA 128(a)(6). Under

[[Page 43299]]

Sec.  226.18(g), creditors must show the number, amounts, and timing of 
payments scheduled to repay the obligation, except as provided in Sec.  
226.18(g)(2) for certain loans with varying payments.\80\ The creditor 
must provide these disclosures on the TILA statement within three 
business days of receiving the consumer's written application, as 
provided in Sec.  226.19(a).
---------------------------------------------------------------------------

    \80\ For a mortgage transaction with rates or fees that exceed 
certain thresholds, TILA Section 129 requires special disclosures 
regarding payments three business days before consummation of the 
transaction. See Sec.  226.32(c) (3), (4). The Board is not 
proposing revisions to these disclosures.
---------------------------------------------------------------------------

    Comment 18(g)-1 provides that the payment schedule should include 
all components of the finance charge, not just interest. Thus, if 
mortgage insurance is required, the payment schedule must reflect the 
consumer's mortgage insurance payments until the date on which the 
creditor must automatically terminate coverage under applicable law. 
See comment 18(g)-5. Commentary to Sec.  226.17(c) provides that for an 
adjustable-rate loan, creditors should disclose the payments and other 
disclosures based only on the initial rate and should not assume that 
the rate will increase. However, the disclosures must reflect a 
discounted or premium initial interest rate for as long as it is 
charged. The commentary permits, but does not require, creditors to 
include in the payments amounts that are not finance charges or part of 
the amount financed. Thus, creditors may, but need not, include 
insurance premiums excluded from the finance charge under Sec.  
226.4(d), and ``real estate escrow amounts such as taxes added to the 
payment in mortgage transactions.''
    TILA Section 128(b)(2)(C), as recently added by the MDIA, requires 
additional disclosures for loans secured by a dwelling in which the 
interest rate or payments may vary. 15 U.S.C. 1638(b)(2)(C). 
Specifically, creditors must provide ``examples of adjustments to the 
regular required payment on the extension of credit based on the change 
in the interest rates specified by the contract for such extension of 
credit. Among the examples required * * * is an example that reflects 
the maximum payment amount of the regular required payments on the 
extension of credit, based on the maximum interest rate allowed under 
the contract. * * *'' TILA Section 128(b)(2)(C), 15 U.S.C. 
1638(b)(2)(C). Creditors must provide these disclosures within three 
business days of receipt of the consumer's written application, as 
provided in Sec.  226.19(a). TILA Section 128(b)(2)(C) provides that 
these examples must be in conspicuous type size and format and that the 
payment schedule be labeled ``Payment Schedule: Payments Will Vary 
Based on Interest Rate Changes.'' Section 128(b)(2)(C) requires the 
Board to conduct consumer testing to determine the appropriate format 
for providing the disclosures to consumers so that the disclosures can 
be easily understood, including the fact that the initial regular 
payments are for a specific time period that will end on a certain 
date, that payments will adjust afterwards potentially to a higher 
amount, and that there is no guarantee that the borrower will be able 
to refinance to a lower amount. 15 U.S.C. 1638(b)(2)(C).
The Board's Proposal
    The Board proposes to add new Sec.  226.38(c) to implement TILA 
Section 128(a)(6) and Section 128(b)(2)(C) for all closed-end 
transactions secured by real property or a dwelling.\81\ (For all other 
closed-end credit transactions, Sec.  226.18(g) would continue to 
provide the rules for disclosing payments). Section 226.38(c) would 
require creditors to disclose the contract interest rate, regular 
periodic payment, and balloon payment if applicable. For adjustable-
rate or step-rate amortizing loans, up to three interest rates and 
corresponding monthly payments would be required, including the maximum 
possible interest rate and payment. If payments are scheduled to 
increase independent of an interest-rate adjustment, the increased 
payment must be disclosed. Payments for amortizing loans must include 
an itemized estimate of the amount for taxes and insurance if the 
creditor will establish an escrow account. If a borrower may make one 
or more payments of interest only, all payments disclosed must be 
itemized to show the amount that will be applied to interest and the 
amount that will be applied to principal. Special rate and payment 
disclosures would be required for loans with negative amortization. 
Creditors must provide the information about interest rates and 
payments in the form of a table, and creditors would not be permitted 
to include other unrelated information in the table.
---------------------------------------------------------------------------

    \81\ TILA Section 128(b)(2)(C) also provides that the Board's 
testing should ensure that consumers can understand that there is no 
guarantee that they will be able to refinance. Proposed Sec.  
226.38(f)(3) implements this aspect of Section 128(b)(2)(C).
---------------------------------------------------------------------------

    Scope of proposed Sec.  226.38(c). TILA Section 128(b)(2)(C) 
applies to all transactions secured by a dwelling. The Board proposes 
to expand the requirement in Section 128(b)(2)(C) to include loans 
secured by real property that do not include a dwelling. As discussed 
in Sec.  226.19(a), unimproved real property is likely to be a 
significant asset for most consumers, and consumers should receive the 
disclosures required in Section 128(b)(2)(C) before they become 
obligated on a loan secured by such an asset. The disclosures would 
alert consumers to the potential for interest rate and payment 
increases and help them to determine whether these risks are 
appropriate to their circumstances.
    The Board proposes this adjustment to TILA Section 128(b)(2)(C) 
pursuant to its authority under TILA Section 105(a). 15 U.S.C. 1604(a). 
Section 105(a) authorizes the Board to make exceptions and adjustments 
to TILA for any class of transactions to effectuate the statute's 
purposes, which include facilitating consumers' ability to compare 
credit terms and helping consumers avoid the uninformed use of credit. 
15 U.S.C. 1601(a), 1604(a). The class of transactions that would be 
affected is transactions secured by real property or a dwelling. As 
discussed, providing examples of increased interest rates and payments 
would help consumers understand the risks involved in certain loans. 
The Board also proposes to revise the label for the interest rate and 
payment information from the statutory language, ``Payment Schedule: 
Payments Will Vary Based on Interest Rate Changes,'' based on plain 
language principles, to make the disclosure more readily 
understandable.
    Disclosure of the interest rate. Currently, TILA does not require 
disclosure of the contract interest rate for closed-end credit. In the 
consumer testing conducted for the Board, when consumers were asked 
what factors they considered when looking for a mortgage, by far the 
most common answers were that they wanted to obtain the lowest interest 
rate possible and that they wanted the loan with the lowest possible 
monthly payment. However, as they described their thought process, most 
consumers were primarily focused on the initial rate and payment, 
rather than how those terms might vary over time. Testing conducted on 
the current transaction-specific TILA disclosures indicated that 
consumers would like to see the interest rate disclosed on the form.
    In addition, testing indicated that the current TILA payment 
schedule, which does not show the relationship between interest rate 
and payment, is ineffective at communicating to consumers what could 
happen to their payments over time on an ARM. Most participants said 
they liked the current presentation of the payments because it was 
specific and detailed. However, when shown a payment schedule for an 
ARM with an

[[Page 43300]]

introductory rate, many incorrectly assumed that payments shown were in 
fact their future payments, rather than payments based on the fully-
indexed rate at consummation.
    Under the Board's proposal, the interest rate and payment would be 
shown together in a table. The Board believes that highlighting the 
relationship between the interest rate and payment will enhance 
consumers' understanding of loan terms. If the interest rate is 
adjustable, the table would indicate changes in the adjustable interest 
rate over time. In addition, payment changes that are not based on 
adjustments to the interest rate would also be indicated in the table. 
Highlighting potential changes to the interest rate and payment based 
on maximum interest rate increases, rather than showing a set payment 
schedule based on the assumption that the index used to calculate a 
adjustable interest rate will not change, will clarify to consumers not 
only that their interest rate and payments may change, but also how the 
interest rate and payment may change over time. Consumers would be 
better able to determine if a adjustable rate or payment loan will be 
affordable and appropriate for their individual circumstances.
    Definitions for Sec.  226.38(c). Proposed Sec.  226.38(c) uses 
several terms that are defined in proposed Sec.  226.38(c)(7). Under 
Sec.  226.38(c)(7), the terms ``adjustable-rate mortgage,'' ``step-rate 
mortgage,'' and ``interest-only'' would have the same meanings as in 
Sec.  226.38(a)(3). An ``amortizing loan'' would be defined as a loan 
in which the regular periodic payments cannot cause the principal 
balance to increase; the term ``negative amortization'' would mean a 
loan in which the regular periodic payments may cause the principal 
balance to increase. Finally, the tern ``fully-indexed rate'' would 
mean the interest rate calculated using the index value and margin.
    Proposed Sec.  226.38(c)(2)(i) and (c)(3) would require disclosure 
of interest rates and payment amounts for amortizing loans. Proposed 
Sec.  226.38(c)(7) defines an amortizing loan as one in which the 
regular periodic payments cannot cause the principal balance to 
increase. Thus, loans with interest-only payments are amortizing loans. 
If an escrow account will be established for an amortizing loan, 
creditors would be required to itemize the payment to show amounts to 
be included for taxes and insurance. See proposed Sec.  
226.38(c)(3)(i)(C). Proposed Sec. Sec.  226.38(c)(2)(ii) and 
226.38(c)(4) would require a special table for disclosures of interest 
rates and payment amounts for negatively amortizing loans. For such 
loans in which the consumer may choose between several payment options, 
the table will show only two: the minimum required payment option, and 
the fully amortizing option. Creditors may, however, disclose other 
payment options to the consumer, outside the segregated information 
required by this section.
38(c)(1) Format
    Proposed Sec.  226.38(c)(1) would require the interest rate and 
payment information to be disclosed in the form of a table. This would 
ensure that payment examples required by the MDIA are in conspicuous 
format as required by TILA Section 128(b)(2)(C). The MDIA also requires 
conspicuous type size for the examples. Under the proposal, all 
disclosures must be in a minimum 10 point font, including the table 
required under Sec.  226.38(c), to ensure that they are clear and 
conspicuous. See proposed Sec.  226.37(a).
    The Board's proposal would prescribe the number of interest rates 
and payments that could be shown in a table. The number of columns and 
rows for the table required by this part would vary depending on 
whether the loan is an amortizing loan and whether it has adjustable 
rates. However, tables disclosed under this section would have no more 
than 5 columns across, and creditors would not include information in 
the table that is not required under 226.38(c), to avoid information 
overload. Model and Sample Forms would be provided in Appendix H.
38(c)(2) Interest Rates
38(c)(2)(i) Amortizing Loans
    Proposed Sec.  226.38(c)(2)(i) would provide disclosure of interest 
rates for amortizing loans. For a fixed-rate mortgage with no scheduled 
payment increases or balloon payments, the creditor would disclose only 
one interest rate. Fixed-rate loans with payment increases would 
require the creditor to disclose the interest rate with each increase. 
For adjustable-rate mortgages and step-rate mortgages, more than one 
interest rate must be shown, as discussed below.
Interest Rates for Fixed-Rate Mortgages
    For fixed-rate mortgages, proposed Sec.  226.38(c)(2)(i)(A) would 
require creditors to disclose the interest rate applicable at 
consummation. If the transaction does not provide for any payment 
increases, only one interest rate would be disclosed. However, some 
fixed-rate mortgages will have scheduled payment increases and in those 
cases the creditor must show the interest rate again, even though it is 
redundant, as discussed under Sec.  226.38(c)(2)(i)(C) below.
Interest Rates for Adjustable-Rate Mortgages and Step-Rate Mortgages
    Interest rates at consummation, maximum possible at first 
adjustment, and maximum possible interest rate. As discussed, TILA 
Section 128(b)(2)(C) requires creditors to disclose examples of payment 
increases including the maximum possible payment, for adjustable-rate 
mortgages and mortgages where payments may vary. Under Sec.  
226.38(c)(2)(i), creditors would disclose more than one interest rate 
and corresponding monthly payment for adjustable-rate mortgages and 
step-rate mortgages. Under proposed Sec.  226.38(c)(2)(i)A)(I), the 
creditor must provide the interest rate at consummation, and the period 
of time until the first adjustment. If the interest rate at 
consummation is less than the fully-indexed rate (the sum of the index 
and margin at consummation), the interest rate must be labeled as 
``introductory.'' Additional explanation of discounted introductory 
rates is required in proposed Sec.  226.38(c)(2)(iii), as discussed 
below.
    Maximum at first adjustment. The Board proposes to require 
disclosure of the maximum rate and payment at first adjustment, as one 
of the examples required by TILA Section 128(b)(2)(C). Proposed Sec.  
226.38(c)(2)(i)(B)(1) requires the creditor to provide the maximum 
interest rate applicable at the first interest rate adjustment, and the 
calendar month and year in which the first scheduled adjustment occurs 
would be required to be disclosed. The creditor would take into account 
any limitations on interest rate increases when determining the 
interest rate to be disclosed under Sec.  226.38(c)(2)(i)(B)(2). If the 
interest rate may reach the maximum possible at the first adjustment, 
the creditor should disclose the rate as the maximum possible as 
discussed below.
    The Board proposes to require disclosure of the maximum interest 
rate at first adjustment because many consumers may take out 
adjustable-rate mortgages, planning to sell the home or refinance the 
loan before the first interest rate adjustment. It is important for 
consumers to know how much their rate and payment might increase at 
that point, if they are unable to refinance or sell the home before the 
first adjustment. The Board believes that for the same reason, the 
first interest rate increase should be shown for step-rate mortgages. 
Although such mortgages do

[[Page 43301]]

not present the uncertainty that an adjustable-rate mortgage does, 
consumers need to be informed of what their rate will increase to at 
the first increase. Consumer testing conducted for the Board shows that 
most consumers would find this information useful in determining 
whether the loan is affordable and suitable to their needs.
    Maximum possible interest rate. Proposed Sec.  
226.38(c)(2)(i)(B)(3) would require creditors to disclose the maximum 
interest rate that could apply, and the earliest possible year in which 
that rate could apply, as required by TILA Section 128(b)(2)(C). The 
Board proposes to require this disclosure for step-rate mortgages as 
well, because the rate and payment will increase in such loans. 
Consumer testing conducted for the Board suggests that consumers find 
this information about the maximum rate and payment particularly 
important in evaluating a loan offer for an adjustable-rate mortgage. 
Participants indicated that this information is most useful to them in 
determining whether such a loan was affordable. If an amortizing 
adjustable-rate mortgage has intermediate limitation on interest rate 
increases, then the table required by proposed Sec.  226.38(c) would 
have at least three columns; if the transaction has no intermediate 
limitation on interest rates then the table would have two columns, one 
showing the rate at consummation and the other showing the maximum 
possible under the loan's terms.
    Interest rate applicable at scheduled payment increase. Some 
mortgages provide for a payment increase that is not attributable to an 
interest rate adjustment or increase. For example, a loan may permit 
the borrower to make payments that cover only accrued interest for some 
specified period, such as the first five years following consummation; 
at the end of this ``interest-only'' period, the borrower must begin 
making larger payments to cover both interest accrued and principal. 
Proposed Sec.  226.38(c)(2)(i)(C) would provide that, where such an 
increase will not coincide with an interest rate adjustment or 
increase, the creditor must include a column that discloses the 
interest rate that would apply at the time the adjustment is scheduled 
to occur, and the date in which the increase would occur. The creditor 
must include a description such as ``first increase'' or ``first 
adjustment.'' Thus, for a fixed-rate mortgage, the creditor would show 
the same interest rate twice (and the corresponding payments as 
discussed in Sec.  226.38(c)(4) below). The Board believes this would 
help the consumer understand that the increase in payment is due to the 
requirement to begin repaying loan principal and not to an interest-
rate adjustment.
    The same is true for adjustable-rate mortgages and step-rate 
mortgages. For example, some adjustable-rate mortgages permit the 
borrower to make interest-only payments for a specified period, such as 
the first five years following consummation. A scheduled payment 
increase may or may not coincide with a scheduled interest rate 
adjustment. Under proposed Sec.  226.38(c)(2)(i)(C), if a scheduled 
payment increase does not coincide with an interest rate adjustment (or 
rate increase for a step-rate mortgage), creditors must include a 
column that discloses the interest rate that would apply at the time of 
the increase, the date the increase is scheduled to occur, and an 
appropriate description such as ``first increase'' or ``first 
adjustment'' as appropriate. Proposed comment 38(c)(2)(i)(C)-1 provides 
clarifying examples. The Board is not aware of step-rate loans with 
interest-only features; however, if such a loan is offered, creditors 
would disclose the payment increase in the same manner as for an 
adjustable-rate mortgage.
38(c)(2)(ii) Negative Amortization Loans
    Proposed Sec.  226.38(c)(2)(ii) would require disclosure of the 
interest rate applicable at consummation. Many payment option loans do 
not provide any limitations on interest rate increases (``interest rate 
caps''); the only cap is the maximum possible interest rate required by 
Sec.  226.30(a.) For payment option loans, the creditor would disclose 
the interest rate in effect at consummation, and assume that the 
interest rate reaches the maximum at the next adjustment--often the 
second month after consummation. The creditor would disclose that rate 
for the first and second scheduled payment increases, as explained more 
fully in Sec.  226.38(c)(4) below, and in the last column, when the 
loan has recast and the consumer must first make a fully amortizing 
payment. The proposed approach to interest rates for negative 
amortization loans is consistent with the MDIA, which requires 
disclosure of the payment at the maximum possible rate, and other 
examples of payment increases.
    Additional proposed rules for disclosing the interest rate on a 
loan with negative amortization are discussed under 38(c)(6) Special 
Disclosures for Loans with Negative Amortization, below.
38(c)(2)(iii) Introductory Rate Disclosure for Adjustable-Rate 
Mortgages
    Many adjustable-rate mortgages have an introductory or teaser rate, 
set below the index and margin used for later adjustments. Proposed 
Sec.  226.38(c)(2)(iii) would require a special disclosure in the case 
of an introductory rate. In consumer testing conducted for the Board, 
many participants did not understand the ramifications of an 
introductory interest rate. Participants understood that if market 
interest rates increased, the interest rate and payment on their loan 
would increase. However, participants did not understand that if they 
had an introductory rate, their interest rate and payment would 
increase when the introductory rate expired, even if market interest 
rates did not increase. Several different disclosures designed to show 
the impact of an introductory rate were tested in tabular form, with 
mixed results. Therefore, the Board proposes to require an explanation 
of the introductory rate below the table itself. Proposed Sec.  
226.38(c)(2)(iii) would require disclosure of the introductory rate, 
how long it will last, and that the interest rate will increase at the 
first scheduled adjustment even if market rates do not increase. 
Creditors would also disclose the fully indexed rate that otherwise 
would apply at consummation. Proposed Sec.  226.37(d)(4) would provide 
that this disclosure must be prominent and placed in a box under the 
table.
38(c)(3) Payments for Amortizing Loans
38(c)(3)(i) Principal and Interest Payments
    Section 226.38(c)(3)(i) would require disclosure of the principal 
and interest payment that corresponds to each interest rate disclosed 
under proposed Sec.  226.38(c)(2)(i). Special itemization of the 
payment is required, however, if the loan permits the consumer to make 
any payments that will be applied only to interest accrued. Proposed 
Sec.  226.3(c)(3)(ii)(C) would require disclosure of an estimate of the 
amount of taxes and insurance, including mortgage insurance. Proposed 
Sec.  226.3(c)(3)(i)(D) would require disclosure of the estimated total 
payment including principal, interest, and taxes and insurance.
    Principal and interest payments. Proposed Sec.  226.38(c)(3)(i) 
would require the disclosure of payment amounts that correspond to the 
interest rates disclosed under Sec.  226.38(c)(2)(i). Proposed comment 
38(c)(3)-1 would clarify that the interest rate and payment amount 
applicable at consummation are required to be

[[Page 43302]]

disclosed for all loans. In addition, the comment would clarify that if 
a payment amount is required to be disclosed under more than one 
subparagraph, the payment should only be disclosed once. For example, 
in an adjustable-rate transaction with a balloon payment, if the 
balloon payment will occur at the same time the loan may reach its 
maximum interest rate, only one disclosure of the interest rate and 
payment is required. Proposed comment 38(c)(3)-2 provides examples of 
the types of loans that trigger additional payment disclosures.
    Fixed-rate mortgages. Under proposed Sec.  226.38(c)(3)(i)(A), for 
fixed-rate transactions where the regular periodic payment fully 
amortizes the loan and there are no scheduled payment increases (such 
as upon the expiration of an interest-only feature), the payment amount 
including both principal and interest would be required to be 
disclosed.
    Fixed-rate interest-only loans. For fixed-rate transactions in 
which the consumer may make one or more interest-only payments, 
proposed Sec.  226.38(c)(3)(i)(B) would require disclosure of the 
payment at any scheduled increase in the payment amount and the date on 
which the increase is scheduled to occur. For example, in a fixed-rate 
interest-only loan a scheduled increase in the payment amount from an 
interest-only payment to a fully amortizing payment would be required 
to be disclosed. Similarly, in a fixed-rate balloon loan, the balloon 
payment must be disclosed, but it would be disclosed under the table 
pursuant to Sec.  226.38(c)(5).
    Adjustable-rate and step-rate transactions. Under proposed Sec.  
226.38(c)(3)(i), for adjustable-rate and step-rate transactions, a 
payment amount corresponding to each interest rate in Sec.  
226.38(c)(2) would be required to be disclosed.
    Adjustable-rate interest-only and balloon loans. For adjustable-
rate transactions in which the consumer may make interest-only 
payments, proposed Sec.  226.38(c)(3)(ii) would require additional 
disclosures. Section 226.38(c)(3)(i)(B) would require disclosure of the 
payment amount at any scheduled payment increase that does not coincide 
with an interest rate adjustment, and the date on which the increase is 
scheduled to occur. In addition, for an adjustable-rate balloon loan, 
if the balloon payment will not coincide with either the first interest 
rate adjustment or the time when the interest rate reaches its maximum, 
the balloon payment is required to be disclosed separately, below the 
table, in accordance with Sec.  226.38(c)(5).
    Principal and interest payment itemization. Under proposed Sec.  
226.38(c)(3)(i) and (ii), the format of the payment disclosure would 
vary depending on whether all regular periodic payment amounts will 
include principal and interest. If all regular periodic payments 
include principal and interest, under Sec.  226.38(c)(3)(i) each 
payment amount would be listed in a single row in the table with a 
description such as principal and interest (except that a balloon 
payment would be disclosed in accordance with Sec.  226.38(c)(5)). If 
any regular periodic payment amounts will include interest but not 
principal, under Sec.  226.38(c)(3)(ii) all payments for the loan must 
be itemized into principal and interest. For a payment that includes no 
principal, the creditor must indicate that none of the payment amount 
will be applied to principal. The creditor must label the dollar amount 
to be applied to interest ``Interest Payment.'' The Board proposes this 
itemization and labeling to emphasize for consumers the impact of 
making interest-only payments. Many participants in the Board's 
consumer testing did not clearly understand that an ``interest-only'' 
loan was different from a loan in which all payments are applied to 
principal and interest without this emphasis and the statement in the 
loan summary required in proposed Sec.  226.38(a)(3).
    Balloon payment. Under proposed Sec.  226.38(c)(5)(i), if a payment 
amount is a balloon payment, the payment must be disclosed in the last 
row of the table rather than in a column, unless it coincides with an 
interest rate adjustment or other payment increase such as the 
expiration of an interest-only option. Section 226.38(c)(5)(i) would 
clarify that a payment is a balloon payment if it is more than twice 
the amount of other payments. This is consistent with how balloon 
payments are defined for purposes of restrictions on balloon payments 
for higher-priced and HOEPA loans.
    Escrows; mortgage insurance premiums. Proposed Sec.  
226.38(c)(3)(i)(C) would provide that if an escrow account will be 
established, the creditor must disclose the estimated payment amount 
for taxes and insurance, including mortgage insurance. For transactions 
secured by real property or a dwelling, creditors would no longer have 
the flexibility provided in existing 226.18(g) to exclude escrow 
amounts. Consumer testing conducted for the Board shows that many 
consumers compare loans based on the monthly payment amount. The Board 
believes that in order for consumers to fully understand the monthly 
amount they actually will be required to pay for a particular loan, 
information about payments for taxes and insurance is necessary. Escrow 
information would be included in the table to make it easier for 
consumers to identify whether there is an escrow and how much of their 
payment would apply to the escrow.
    Proposed comment 38(c)(3)(i)(C)-1 would clarify the types of taxes 
and insurance that would be required to be included in the estimate. 
Proposed comment 38(c)(i)(C)-2 would provide guidance on how to 
determine the length of time for which mortgage insurance payments must 
be included in the estimate. Under the proposed comment, which is 
substantially similar to current comment 18(g)-5, the payment amount 
should reflect the consumer's mortgage insurance payments until the 
date on which the creditor must automatically terminate coverage under 
applicable law, even though the consumer may have a right to request 
that the insurance be canceled earlier.
    The Board solicits comment on whether premiums or other amounts for 
credit life insurance, debt suspension and debt cancellation agreements 
and other similar products should be included or excluded from the 
disclosure of escrows for taxes and insurance. Including such amounts 
in the estimated escrow and monthly payment, particularly on the early 
TILA disclosures delivered within three days of application, may cause 
some consumers to believe these products are required as part of the 
loan agreement. This may affect consumers' ability to weigh the 
relative merits of credit insurance and other similar products and 
determine whether the product is appropriate for their circumstances.
    Total periodic payments. Proposed Sec.  226.38(c)(3)(i)(D) would 
require disclosure of the total estimated monthly payment. The total 
estimated monthly payment is the sum of the principal and interest 
payments and the estimated taxes and insurance payments required to be 
disclosed in Sec.  226.38(c)(3)(i)(C).
38(c)(4) Periodic Payments for Loans With Negative Amortization
    For each interest rate disclosed under Sec.  226.38(c)(2)(ii), the 
creditor would disclose a corresponding payment. One row of the table 
would show the fully amortizing payment for each interest rate; for 
purposes of calculating these payments the creditor would assume the 
interest rate reaches the maximum at the

[[Page 43303]]

earliest date, and that the consumer makes only fully amortizing 
payments. The other row of the table would show the minimum required 
payment for each rate, until the recast point. At the recast point, the 
minimum payment row would show the fully amortizing payment. For 
purposes of the minimum payment row, creditors must assume the interest 
rate reaches the maximum at the earliest date, and that the consumer 
makes only the minimum required payment for as long as permitted under 
the terms of the legal obligation.
    Minimum payment amounts. Proposed Sec.  226.38(c)(4)(i)(A) would 
require disclosure of the minimum required payment at consummation. The 
proposal would require a disclosure of the amount of the minimum 
payment applicable for each interest rate required to be disclosed 
under Sec.  226.38(c)(2)(ii), and the date. Under proposed Sec.  
226.38(c)(4)(i)(C), the creditor must provide a statement that the 
minimum payment will cover only some of the interest accrued and none 
of the principal, and will cause the principal balance to increase. The 
Board proposes this required statement to ensure that consumers are 
informed about the consequences of making minimum payments. As stated 
above, participants in the Board's consumer testing were unfamiliar 
with the concept of negative amortization and struggled to understand 
why a loan's balance would increase when payments were made.
    Payment increases. As noted above, many payment option loans do not 
have interest rate caps, and thus the interest rate may reach its 
maximum possible amount at the first interest rate adjustment. However, 
such loans may have limits on the amount that the minimum payment may 
increase following an interest rate adjustment. For example, a minimum 
payment increase may be limited by a certain percentage, such as 7.5% 
greater than the previous minimum payment. (Such limits are generally 
subject to conditions and will not apply either at a specific time, 
such as at the fifth year of the loan, or when the loan balance reaches 
a certain maximum.) Under proposed Sec.  226.38(c)(2)(ii)(D), if 
adjustments in the minimum payment amount are limited such that the 
payment will not fully amortize the loan even after the interest rate 
has reached the maximum, a disclosure of the minimum payment amount at 
the first and second payment adjustments would be required. That is, in 
cases where the first interest rate adjustment will be the only 
interest rate adjustment, but payment adjustments will continue to 
occur before the minimum payment recasts to a fully amortizing payment, 
a disclosure of one additional minimum payment adjustment would be 
required.
    Fully amortizing payment amount. Proposed Sec.  226.38(c)(4)(iii) 
would require disclosure of the amount of the fully amortizing payment, 
assuming that the consumer makes only fully amortizing payments 
beginning at consummation. The fully amortizing payment row must be 
filled in for each interest rate required to be disclosed under Sec.  
226.38(c)(4)(ii) and (iv). The Board believes that contrasting the 
fully amortizing payment with the minimum required payment will help 
consumers to understand the implications of making the fully amortizing 
payment and the minimum payment. In consumer testing, participants 
understood from the table that if they made the fully amortizing 
payment each month they would pay their loan off, and that if they 
instead made the minimum payment they would not pay the loan off and in 
fact would increase the amount that they owe.
    Statement of balance increase and other information. Proposed Sec.  
226.38(c)(4)(vi) would require a statement of the amount of the 
increase in the loan's principal balance if the consumer makes only 
minimum payments and the earliest month and year in which the minimum 
payment will recast to a fully amortizing payment under the terms of 
the legal obligation, assuming that the interest-rate reaches its 
maximum at the earliest possible time. As noted, participants in 
testing expressed confusion about negative amortization; the Board 
believes this disclosure and the other required disclosures in the 
table should help consumers understand the risks of making minimum 
payments.
    In addition, the explanation preceding the table would provide the 
consumer's option to make fully amortizing payments or to make minimum 
payments, the maximum possible interest rate, the earliest number of 
months or years in which the interest rate could reach its maximum, and 
the amount of estimated taxes and insurance included in each payment 
disclosed. If the maximum interest rate may be reached in less than a 
year the statement would be required to provide the number of months 
after consummation in which the interest rate may reach its maximum, 
otherwise the statement would provide the number of years. In addition, 
the creditor would disclose whether an escrow account will be 
established and if so, an estimate of the amount for taxes and 
insurance included in each periodic payment.
38(c)(6) Special Disclosures for Loans With Negative Amortization
    Some mortgage transactions permit the borrower to make payments 
that are insufficient to cover all of the interest accrued, and the 
unpaid interest is added to the loan's balance. Thus, although the 
borrower is making payments, the loan balance is increasing instead of 
decreasing. Negative amortization could occur on a fixed-rate mortgage 
or an adjustable-rate mortgage. Mortgages with negative amortization 
were relatively rare until the early part of this decade, when the 
``payment option'' loan began to grow in popularity.\82\ Payment option 
loans have adjustable rates, and allow the borrower to choose among up 
to five monthly payment options, including a minimum payment that would 
result in negative amortization. Other options would include an 
interest-only option, a fully amortizing option, and the option to make 
extra payments of principal and pay the loan off early. Typically, 
payment option loans permit consumers to make minimum payments for a 
limited time, such as for the first five years following consummation 
or until the loan's principal balance reaches 115 percent of the 
original balance, whichever occurs first. Upon either event, the 
consumer must begin to make fully amortizing payments.
---------------------------------------------------------------------------

    \82\ Interagency Guidance on Nontraditional Mortgage Product 
Risks, 71 FR 58609; October 4, 2006.
---------------------------------------------------------------------------

    Payment option loans and other nontraditional mortgages can result 
in significant ``payment shock'' for borrowers, particularly when the 
loan ``recasts'' and a fully amortizing payment must be made. Concerns 
about payment shock led the Board, OCC, OTS, FDIC and NCUA to propose 
supervisory guidance on nontraditional mortgages in 2005, and issue 
final guidance in October 2006.\83\ The guidance emphasizes that 
institutions should use prudence in underwriting nontraditional 
mortgages, and should provide accurate and balanced information to 
consumers before the consumer is obligated on such a mortgage. The 
agencies published illustrations to assist financial institutions in 
providing information that would help consumers understand the risks 
involved in nontraditional mortgages.\84\ Those illustrations were not 
consumer tested.
---------------------------------------------------------------------------

    \83\ Id.
    \84\ 72 FR 31825, 318231; Jun. 8, 2007
---------------------------------------------------------------------------

    The Board's consumer testing indicates that the unusual and complex 
nature of negative amortization loans requires a different approach to 
the

[[Page 43304]]

disclosure of interest rates and payments than for amortizing loans. 
Nearly all participants in the Board's consumer testing were unfamiliar 
with the concept of negative amortization, and technical explanations 
of negative amortization proved challenging for them. The Board 
believes that selected information about payment option loans may be 
more effective in conveying the risks of such mortgages than extensive 
text explaining negative amortization and its impact.
    Accordingly, the Board developed and tested an interest rate and 
payment summary table designed to inform consumers about the risks of a 
payment option loan. The proposed rules would also require disclosure 
of the interest rate and payment for a loan with negative amortization 
that is not an adjustable rate mortgage. However, the Board found no 
examples of such loans in the marketplace, and seeks comment on whether 
such loans are offered and if so, whether proposed Sec.  226.38(c) 
provides sufficient guidance on disclosing such loans.
    The interest rate and payment summary would display only two 
payment options, even if the terms of the legal obligation provide for 
others, such as an option to make interest-only payments. The table 
would show only the option to make minimum payments that would result 
in negative amortization, and the option to make fully amortizing 
payments. The Board believes that displaying all of the options in the 
table would have the unintended consequence of confusion and 
information overload for consumers. Creditors would be free to provide 
information on options not displayed in the table, outside the 
segregated information required under this subsection.
    In addition, to help consumers navigate the information in the 
table, proposed Sec.  226.38(c)(6) would require a statement directly 
above the interest rate and payment summary table explaining that the 
loan offers payment options. A disclosure of the maximum possible 
balance would also be required, directly below the table, to help 
ensure that consumers understand the nature and risks involved in loans 
with negative amortization.
38(d) Key Questions About Risk
    Based on consumer testing, as discussed in greater detail in Sec.  
226.19(b)(2) above, the Board proposes to require creditors to disclose 
certain information grouped together under the heading ``Key Questions 
about Risk,'' using that term. This disclosure would be specific to the 
loan program for which the consumer applied. Proposed Sec.  
226.38(d)(1) would require the creditor to disclose information about 
the following three terms: (1) Rate increases, (2) payment increases, 
and (3) prepayment penalties. Proposed Sec.  226.38(d)(2) would require 
the creditor to disclose information about the following six terms, but 
only if they are applicable to the loan program: (1) interest-only 
payments, (2) negative amortization, (3) balloon payment, (4) demand 
feature, (5) no-documentation or low-documentation loans, and (6) 
shared-equity or shared-appreciation. The ``Key Questions about Risk'' 
disclosure would be subject to special format requirements, including a 
tabular format and a question and answer format, as described under 
proposed Sec.  226.38(d)(3).
38(d)(1) Required Disclosures
    As noted above, proposed Sec.  226.38(d)(1) would require the 
creditor to disclose information about the following three terms: (1) 
Rate increases, (2) payment increases, and (3) prepayment penalties. 
The Board believes that these three factors should always be disclosed. 
Rate and payment increases pose the most direct risk of payment shock. 
In addition, consumer testing consistently showed that interest rate 
and monthly payment were the two most common terms that participants 
used to shop for a mortgage. The Board also believes that the 
prepayment penalty is a key risk factor because it is critical to the 
consumer's ability to sell the home or refinance the loan to obtain a 
lower rate and payments. While the other risk factors are important if 
contained in the loan program, the Board believes it appropriate to 
include those factors only as applicable to avoid information overload.
    Rate increases. Proposed Sec.  226.38(d)(1)(i) would require the 
creditor to indicate whether or not the interest rate on the loan may 
increase. If the interest rate on the loan may increase, then the 
creditor would indicate the frequency with which the interest rate may 
increase and the date on which the first interest rate increase may 
occur. Proposed comment 38(d)(1)-1 would clarify that disclosing the 
date means that the creditor must disclose the calendar month and year.
    Payment increases. Proposed Sec.  226.38(d)(1)(ii) would require 
the creditor to indicate whether or not the periodic payment on the 
loan may increase. If the periodic payment on the loan may increase, 
then the creditor would be required to indicate the date on which the 
first payment increase may occur. For payment option loans, the 
creditor would be required to disclose the dates on which the full and 
minimum payments may increase. Proposed comment 38(d)(1)-1 would 
clarify that disclosing the date means that the creditor must disclose 
the calendar month and year.
    Prepayment penalty. As currently required under TILA Section 
128(a)(11), 15 U.S.C. 1638(a)(11), and Sec.  226.18(k)(1), if the 
obligation includes a finance charge computed from time to time by 
application of a rate to the unpaid principal balance, proposed Sec.  
226.38(d)(1)(iii) would require the creditor to indicate whether or not 
a penalty will be imposed if the obligation is prepaid in full. If the 
creditor may impose a prepayment penalty, the creditor would disclose 
the circumstances under which and period in which the creditor would 
impose the penalty and the amount of the maximum penalty. Because of 
the importance of prepayment penalties, the proposed rule would also 
require disclosure of prepayment penalties, if applicable, under 
proposed Sec.  226.38(a)(5). To avoid duplication, proposed comments 
38(d)(1)(iii)-1 to -3 would cross-reference proposed comments 38(a)(5)-
1 to -3 for information about whether there is a prepayment penalty, 
and examples of charges that are or are not prepayment penalties. In 
addition, proposed comment 38(d)(1)(iii)-4 would cross-reference 
comment 38(a)(5)-6 to determine the maximum prepayment penalty. 
Proposed comment 38(d)(1)(iii)-5 would cross-reference comment 
38(a)(5)-7 for information about any differences resulting from the 
consumer's payment patterns and basing disclosures on the required 
payment for a negative amortization loan. Although under proposed Sec.  
226.38(a)(5) the disclosure of the prepayment penalty would appear on 
the first page of the transaction-specific TILA disclosure only if this 
feature were present in the loan, the disclosure would always appear on 
the second page in the ``Key Questions'' disclosure in order for the 
consumer to verify whether or not there is a prepayment penalty 
associated with the loan.
38(d)(2) Additional Disclosures
    As noted above, proposed Sec.  226.38(d)(2) would require the 
creditor to disclose information about the following six terms, as 
applicable: (1) Interest-only payments, (2) negative amortization, (3) 
balloon payment, (4) demand feature, (5) no-documentation or low-
documentation loans, and (6) shared-equity or shared-appreciation. 
Proposed comment 38(d)(2)-1 would

[[Page 43305]]

clarify that ``as applicable'' means that any disclosure not relevant 
to a particular loan may be omitted. Although consumer testing showed 
that some participants felt reassured by seeing all of the risk factors 
whether the factors were a feature of the loan or not, the Board is 
concerned about the potential for information overload if the entire 
list is included.
    Interest-only payments. Proposed Sec.  226.38(d)(2)(i) would 
require the creditor to disclose that periodic payments will be applied 
only toward interest on the loan. The creditor would also disclose any 
limitation on the number of periodic payments that will be applied only 
toward interest on the loan, that such payments will cover the interest 
owed each month, but none of the principal, and that making these 
periodic payments means the loan amount will stay the same and the 
consumer will be not have paid any of the loan amount. For payment 
option loans, the creditor would disclose that the loan gives the 
consumer the choice to make periodic payments that cover the interest 
owed each month, but none of the principal, and that making these 
periodic payments means the loan amount will stay the same and the 
consumer will not have paid any of the loan amount.
    Negative amortization. Proposed Sec.  226.38(d)(2)(ii) would 
require the creditor to disclose that the loan balance may increase 
even if the consumer makes the periodic payments. In addition, the 
creditor would be required to disclose that the minimum payment covers 
only a part of the interest the consumer owes each period and none of 
the principal, that the unpaid interest will be added to the consumer's 
loan amount, and that over time this will increase the total amount the 
consumer is borrowing and cause the consumer to lose equity in the 
home.
    Balloon payment. Proposed Sec.  226.38(d)(2)(iii) would require the 
creditor to disclose that the consumer will owe a balloon payment, 
along with a statement of the amount that will be due and the date on 
which it will be due. Proposed comment 38(d)(2)(iii)-1 would clarify 
that the creditor must make this disclosure if the loan program 
includes a payment schedule with regular periodic payments that when 
aggregated do not fully amortize the outstanding principal balance.
    Demand feature. As currently required under Sec.  226.18(i), 
proposed Sec.  226.38(d)(2)(iv) would require the creditor to disclose 
a statement that the creditor may demand full repayment of the loan, 
along with a statement of the timing of any advance notice the creditor 
is required to give the consumer before the creditor exercises such 
right. Proposed comment 38(d)(2)(iv)-1 would clarify that this 
requirement would apply not only to transactions payable on demand from 
the outset, but also to transactions that convert to a demand status 
after a stated period. Proposed comment 38(d)(2)(iv)-2 would cross-
reference comment 18(i)-2 regarding covered demand features.
    No-documentation or low-documentation loans. Proposed Sec.  
226.38(d)(2)(v) would require the creditor to disclose that the 
consumer's loan will have a higher rate or fees because the consumer 
did not document employment, income, or other assets. In addition, the 
creditor would disclose that if the consumer provides more 
documentation, the consumer could decrease the interest rate or fees.
    Shared-equity or shared-appreciation. Proposed Sec.  
226.38(d)(2)(vi) would require the creditor to disclose a statement 
that any future equity or appreciation in the real property or dwelling 
that secures the loan must be shared, along with a statement of the 
events that may trigger such obligation.
38(d)(3) Format Requirements
    Based on consumer testing, as discussed more fully in Sec. Sec.  
226.19(b)(2) and 226.37, proposed Sec.  226.38(d)(3) would require the 
creditor to disclose the ``Key Questions about Risk'' using a special 
format. Proposed Sec.  226.38(d)(3)(i) would require the creditor to 
provide the disclosures required in Sec.  226.38(d)(1) and (d)(2), as 
applicable, in the form of a table with headings, content and format 
substantially similar to Model Forms H-19(A), H-19(B), or H-19(C) in 
Appendix H. Only the information required or permitted by Sec.  
226.38(d)(1) and (2) would be permitted in this table. In addition, 
under Sec.  226.38(d)(3)(ii), the disclosures would be required to be 
grouped together and presented in the format of a question and answer 
in a manner substantially similar to Model Form H-19(A), H-19(B), or H-
19(C) in Appendix H. Proposed Sec.  226.38(d)(3)(iii) would further 
require the creditor to disclose each affirmative answer in bold text 
and in all capitalized letters, but negative answers would be disclosed 
in nonbold text. Finally, proposed 226.38(d)(3)(iv) would require the 
creditor to make the disclosures, as applicable, in the following 
order: rate increases under Sec.  226.38(d)(1)(i), payment increases 
under Sec.  226.38(d)(1)(ii), interest-only payments under Sec.  
226.38(d)(2)(i), negative amortization under Sec.  226.38(d)(2)(ii), 
balloon payments under Sec.  226.38(d)(2)(iii), prepayment penalties 
under Sec.  226.38(d)(1)(iiii), demand feature under Sec.  
226.38(d)(2)(iv), no-documentation or low-documentation loans under 
Sec.  226.38(d)(2)(v), and shared-equity or shared-appreciation under 
Sec.  226.38(d)(2)(vi). This order would ensure that consumers receive 
critical information about their payments first.
38(e) Information About Payments
    Proposed Sec.  226.38(e) would require disclosure of additional 
information about interest rates and payments, including disclosure of 
the amount financed, the ``interest and settlement charges,'' 
(currently the ``finance charge''), the total of payments, and the 
number of payments. Proposed Sec.  226.38(e) would also require 
disclosure of whether or not an escrow account for taxes and insurance 
is required, a disclosure about private mortgage insurance, if 
applicable, and information about limitations on rate and payment 
changes. In the consumer testing conducted by the Board, consumers did 
not find certain terms that are prominently disclosed on the current 
transaction-specific TILA form to be useful. Specifically, the amount 
financed, the total of payments, and the finance charge were less 
useful to consumers than other information such as information about 
the loan amount, interest rates, and monthly payments. The Board 
believes that it would enhance consumers' overall understanding of the 
disclosures if these items were placed less prominently on the form. In 
addition, by placing these terms in the context of a larger explanatory 
statement, some consumers may better be able to understand these terms. 
At the same time, consumer testing conducted for the Board has shown 
that there is other information about the loan terms that consumers 
find beneficial that is not currently disclosed on the transaction-
specific form. Specifically, the Board believes that consumers would 
find it beneficial to have explanations of how the interest rate or 
payment amounts can change and whether there are limits on those 
changes, and notification of whether an escrow account or private 
mortgage insurance are required.
38(e)(1) and (2) Rate Calculation; Rate and Payment Change Limits
    Proposed Sec. Sec.  226.38(e)(1) and 226.38(e)(2) would require 
disclosures of how the consumer's variable interest rate is calculated, 
of any limitations on adjustments to the interest rate, and of any 
limitations on payment adjustments in negatively amortizing loans. The

[[Page 43306]]

requirements under proposed Sec. Sec.  226.38(e)(1) and 226.38(e)(2) to 
provide disclosures of how the rate is calculated and any limitations 
on adjustments to the interest rate are similar to the requirements of 
current Sec. Sec.  226.18(f)(1)(i) and 226.18(f)(1)(ii) for 
transactions not secured by the consumer's principal dwelling or 
secured by the consumer's principal dwelling with a term of one year or 
less. Currently, for transactions secured by the consumer's principal 
dwelling with a term greater than one year, Sec.  226.19(b)(2) requires 
information about the variable interest rate to be disclosed at the 
time an application form is provided to the consumer, or before the 
consumer pays a nonrefundable fee, whichever is earlier. However, under 
current Sec.  226.18(f)(2), in the transaction-specific disclosures 
provided before consummation, only a statement that the transaction 
contains a variable-rate feature, and a statement that variable-rate 
disclosures have been provided earlier, are required. The Board 
believes that providing information about how the interest rate is 
calculated and about limitations on interest rate adjustments along 
with other transaction-specific disclosures would provide consumers 
with meaningful information about their particular interest rate in the 
context of the entire transaction being disclosed. For adjustable-rate 
mortgages, proposed Sec.  226.38(e)(1) would require a statement of how 
the interest rate is calculated. In addition, if the interest rate at 
consummation is not based on the index and margin that will be used to 
make later interest rate adjustments, the statement would be required 
to include the time period when the initial interest rate expires.
    Proposed comment 38(e)(1)-1 is similar to current comment 
18(f)(1)(i)-1 for credit not secured by the consumer's principal 
dwelling, or secured by the consumer's principal dwelling with a term 
of one year or less. The proposed comment would clarify that if the 
interest rate is calculated based on the addition of a margin to an 
index the statement would have to identify the index to which the rate 
is tied and the margin that will be added to the index, as well as any 
conditions or events on which the increase is contingent. When no 
specific index is used, the factors used to determine whether to 
increase the rate would be required to be disclosed. When the increase 
in the rate is discretionary, the fact that any increase is within the 
creditor's discretion would be required to be disclosed. When the index 
is internal (for example, the creditor's prime rate), the creditor 
would be permitted to comply with the disclosure requirement by 
providing either a brief description of that index or a statement that 
any increase is in the discretion of the creditor. An external index, 
however, would be required to be identified.
    Proposed Sec.  226.38(e)(2) would require a statement of any 
limitations on the increase in the interest rate in a variable-rate 
transaction, and, for negatively amortizing loans, a statement of any 
limitations on the increase in the minimum payment amount and the 
circumstances under which the minimum payment required may recast to a 
fully amortizing payment. Proposed comment 38(e)(2)-1, covering 
variable-rate transactions, would be similar to current comment 
18(f)(1)(ii)-1 and would clarify that the disclosure of limitations on 
adjustments to the interest rate must provide any maximum imposed on 
the amount of an increase in the rate at any time, as well as any 
maximum on the total increase over the transaction's term to maturity.
    Proposed comment 38(e)(2)-2, covering negatively amortizing loans, 
would clarify that any limit imposed on the change of a minimum payment 
amount, whether or not the change follows an adjustment to the interest 
rate, would be required to be disclosed. In addition, any conditions to 
the limitation on payment increases would also be required to be 
disclosed. For example, some loan programs provide that the minimum 
payment will not increase by more than a certain percentage, regardless 
of the corresponding increase in the interest rate. However, there may 
be exceptions to the limitation on the payment increase, such as if the 
consumer's principal balance reaches a certain threshold, or if the 
legal obligation sets out a scheduled time when payment increases will 
not be limited.
38(e)(3) Escrow
    Proposed Sec.  226.38(e)(3) would require, if applicable, a 
statement substantially similar to the following: ``An escrow account 
is required for property taxes and insurance (such as homeowner's 
insurance). Your escrow payment is an estimate and can change at any 
time. See your Good Faith Estimate or HUD-1 form for more details.'' If 
no escrow is required, the creditor would be required to state that 
fact and that the consumer must pay property taxes and insurance 
directly.
38(e)(4) Mortgage Insurance
    Proposed Sec.  226.38(e)(4) would require, if applicable, a 
statement substantially similar to the following: ``Private Mortgage 
Insurance (PMI) is required for this loan. It is included in your 
escrow.'' If other mortgage insurance is required, such as insurance or 
guaranty obtained from a government agency, the creditor would be 
required to omit the word ``private'' from the description.
38(e)(5) Total Payments
38(e)(5)(i) Total Payments
    Section 226.18(h), which implements TILA Section 128(a)(5) and (8), 
requires creditors to disclose the total of payments, using that term, 
together with a descriptive statement that the disclosed amount 
reflects the sum of all scheduled payments disclosed under Sec.  
226.18(g).\85\ 15 U.S.C. 1638(a)(5), (a)(8). Current comment 18(h)-1 
allows creditors to revise the total of payments descriptive statement 
for variable rate transactions to convey that the disclosed amount is 
based on the annual percentage rate and may change. In addition, 
current comments 18(h)-3 and -4 permit creditors to omit the total of 
payments disclosure in certain single-payment transactions and for 
demand obligations that have no alternate maturity date.
---------------------------------------------------------------------------

    \85\ Section 128(a)(5) of TILA states that the total of payments 
should be disclosed as the sum of the amount financed and finance 
charge. 15 U.S.C. 1638(a)(5). Since 1969, the Board has required 
that the total of payments equal the sum of payments disclosed in 
the payment schedule under TILA Section 128(a)(6) and Sec.  
226.18(g), which can include amounts beyond the amount financed and 
the finance charge. 15 U.S.C. 1638(a)(6). Thus, if a creditor 
includes escrowed taxes and insurance in its disclosure of scheduled 
payments under Sec.  226.18(g), it must also include those amounts 
in the total of payments disclosed under Sec.  226.18(h). 34 FR 
02002; Feb. 11, 1969.
---------------------------------------------------------------------------

    Consumer testing conducted by the Board showed that participants 
did not find the total of payments to be helpful in evaluating a loan 
offer. Most participants understood that the total of payments 
generally represented the sum of scheduled payments and charges, 
including interest; several suggested that an explanation of how the 
total of payments is calculated would facilitate comprehension of the 
term. Some participants expressed interest in knowing the total of 
payments required to pay off the loan obligation, but regarded this 
information as marginally useful to their shopping and decision-making 
process. On the other hand, some participants commented that 
information about the total of payments was unnecessary and therefore, 
could be removed from the form entirely.
    As part of consumer testing, the Board shortened the term ``total 
of payments'' to ``total payments'' because it is a more

[[Page 43307]]

direct and simple term to communicate to consumers what the dollar 
amount represented. In addition, an explanation of the assumptions 
underlying the total payments calculation was added with an explicit 
reference to whether the amount included escrowed amounts. The total 
payment amount was disclosed with a statement explaining that a portion 
of it goes towards interest and settlement charges. This approach 
enhanced consumer comprehension of the total payments and, as discussed 
more fully below, the interest and settlement charges disclosure.
    The Board proposes to rename ``total of payments'' as ``total 
payments,'' and require that it be disclosed with a descriptive 
statement, for transactions secured by real property or a dwelling. The 
Board proposes to make this adjustment pursuant to its exception 
authority under TILA Section 105(a). 15 U.S.C. 1604(a). Section 105(a) 
authorizes the Board to make exceptions and adjustments to TILA to 
effectuate the statute's purposes, which include facilitating 
consumers' ability to compare credit terms and helping consumers avoid 
the uninformed use of credit. 15 U.S.C. 1601(a), 1604(a). The Board 
believes that proposing the exception is appropriate. Consumer testing 
indicates that ``total payments'' is more understandable to consumers 
than ``total of payments.''
    The Board proposes to add new Sec.  226.38(e)(5)(i), which would 
implement TILA Sections 128(a)(5), 128(a)(6), in part, and 128(a)(8) 
for transactions secured by real property or a dwelling. 15 U.S.C. 
1638(a)(5), (a)(6), and (a)(8). Proposed Sec.  226.38(e)(5)(i) would 
require creditors to disclose for transactions secured by real property 
or a dwelling, the number and total amount of payments that the 
consumer would make over the full term of the loan. The Board proposes 
that this disclosure be made together with a brief statement that the 
amount is calculated assuming market rates will not change, and that 
the consumer will make all payments as scheduled for the full term of 
the loan. The Board believes that although the total payments 
disclosure is not critical to the shopping or decision-making process 
for many consumers, it provides information about the total cost of the 
loan that provides context for, and increases understanding of, other 
required disclosures, such as interest and settlement charges (formerly 
finance charge) and amount financed.
    Proposed comments 38(e)(5)(i)-1 through -3 would be added to 
provide guidance to creditors on how to calculate and disclose the 
total payments amount and the number of payments. As discussed more 
fully under proposed Sec.  226.38(c), the Board is proposing to require 
creditors to provide interest rate and monthly payment disclosures in a 
tabular format for transactions secured by real property or a dwelling. 
As a result, creditors would not be subject to the disclosure 
requirements for payment schedules under current Sec.  226.18(g). 
However, proposed comment 38(e)(5)(i)-1 would clarify that creditors 
should continue to follow the rules in Sec.  226.18(g) and associated 
commentary, and comments 17(c)(1)-8 and -10 for adjustable rate 
transactions, to calculate the total payments for transactions secured 
by real property or a dwelling. New comment 38(e)(5)(i)-2 would cross-
reference to comment 18(g)-3, which the Board proposes to revise to 
require creditors to disclose the total number of payments for all 
payment levels as a single figure for transactions secured by real 
property or a dwelling. Proposed comment 38(e)(5)(i)-3 would provide 
guidance regarding demand obligations. In technical revisions, the text 
from current footnote 44 would be moved to the regulation text in Sec.  
226.18(h); however, this text is not included in proposed Sec.  
226.38(e)(5)(ii) because it is not applicable to transactions secured 
by real property or a dwelling.
    As discussed more fully under proposed Sec.  226.38(e)(5)(ii) for 
interest and settlement charges (formerly ``finance charge''), 
creditors would be required to group the total payments disclosure 
together with the interest and settlement charges and amount financed 
disclosures under proposed Sec.  226.38(e)(5)(ii) and (iii), 
respectively.
38(e)(5)(ii) Finance Charge: Interest and Charges
    Section 226.18(d), which implements TILA Sections 128(a)(3) and 
(a)(8), requires creditors to disclose the ``finance charge,'' using 
that term, and a brief description such as ``the dollar amount the 
credit will cost you.'' 15 U.S.C. 1638(a)(3), (a)(8). Current comment 
18(d)-1 allows creditors to modify this description for variable rate 
transactions with a phrase that the disclosed amount is subject to 
change. In addition, Sec.  226.17(a)(2), which implements TILA Section 
122(a), requires creditors to disclose the finance charge, and the 
annual percentage rate, more conspicuously than any other required 
disclosure, except the creditor's identity. 15 U.S.C. 1633(a). The 
rules addressing which charges must be included in the finance charge 
are set forth under TILA Section 106 and Sec.  226.4, and are discussed 
more fully under Sec.  226.4 of this proposal. 15 U.S.C. 1605.
    Consumer testing conducted by the Board indicated that many 
participants could not correctly explain the term ``finance 
charge.''\86\ Most participants thought that the finance charge 
represented the amount of interest the borrower would pay over the life 
of the loan, but did not realize that it also included fees until 
directed to read a statement that explained fees were included. 
Consumer testing showed that comprehension of the finance charge 
improved when it was renamed to reflect the costs it actually 
represented--the interest and settlement charges paid over the life of 
the loan. However, even when participants understood what the finance 
charge signified they tended to disregard it, often because it was such 
a large dollar amount. Several participants commented that it is 
helpful to know the total amount of interest and fees that would be 
paid, but that they could not otherwise purchase a home, or refinance 
an existing obligation, in cash and therefore, already understood they 
would pay a significant amount in interest and fees when repaying the 
loan. Still, participants expressed an interest in knowing the total 
amount of interest and other charges they would pay over the full term 
of the loan.
---------------------------------------------------------------------------

    \86\ See also Improving Consumer Mortgage Disclosures (stating 
that a number of respondents misinterpreted the finance charge).
---------------------------------------------------------------------------

    The Board proposes to exercise its authority under TILA Section 
105(a) to rename ``finance charge'' as ``interest and settlement 
charges,'' except it from the requirement under TILA Section 122(a) 
that it be disclosed more conspicuously, and require that it be 
disclosed with a descriptive statement. 15 U.S.C. 1632(a); 1604(a), 
(f). Section 105(a) authorizes the Board to make exceptions or 
adjustments to TILA for any class of transactions to effectuate the 
statute's purposes, which include facilitating consumers' ability to 
compare credit terms and helping consumers avoid the uninformed use of 
credit. 15 U.S.C. 1601(a), 1604(a). In this case, the Board believes an 
exception from TILA's requirements are necessary to effectuate the 
Act's purposes for transactions secured by real property or a dwelling. 
Although some consumers expressed interest in the finance charge when 
evaluating a loan offer, consumer testing showed that for most 
consumers it is not as useful in the shopping or decision-making 
process as other terms, and therefore, should be de-emphasized relative 
to other disclosed terms. Consumer testing also showed that

[[Page 43308]]

participants had a better understanding of the finance charge when it 
was disclosed as a portion of the total payments amount, accompanied by 
a statement that explained the finance charge amount plus the amount 
financed is used to calculate the APR. Thus, based on consumer testing, 
the Board believes that consumers will find the finance charge 
disclosure more meaningful when described in a manner consistent with 
consumers' general understanding, and disclosed in context with other 
information that relate to loan payments, such as the total payments.
    The Board proposes to add new Sec.  226.38(e)(5)(ii), which would 
implement TILA Section 128(a)(3) and (8) for closed-end mortgage loans 
covered by Sec.  226.38. 15 U.S.C. 1638(a)(3), (8). Section 
226.38(e)(5)(ii) would require creditors to disclose the ``interest and 
settlement charges,'' using that term, together with a brief statement 
that the disclosed amount represents part of the total payments amount 
disclosed. Creditors would also be required to disclose the ``interest 
and settlement charges'' grouped together with the ``total payments'' 
and ``amount financed'' disclosures under proposed Sec.  
226.38(e)(5)(i) and (iii), respectively, under the subheading ``Total 
Payments,'' using that term. Based on consumer testing, the Board 
believes this approach is appropriate to help serve TILA's purpose of 
assuring a meaningful disclosure of credit terms. Consumer testing 
suggests that providing the disclosure of ``interest and settlement 
charges'' in context of the total payments improves consumers' ability 
to understand that this disclosure represents the cost (i.e., interest 
and fees) of borrowing the loan amount.
    The Board also proposes comment 38(e)(5)(ii)-1 to provide guidance 
on how creditors must calculate and disclose the interest and 
settlement charges. However, the proposed rule would not allow 
creditors to modify the description that accompanies the disclosure for 
variable-rate transactions. The Board proposes this restriction under 
TILA Section 105(a) to help serve TILA's purpose of meaningful 
disclosure of credit terms so that consumers will be able to compare 
more readily the various credit terms available, and avoid the 
uninformed use of credit. 15 U.S.C. 1601(a). Consumer testing showed 
that the simple disclosure aided consumer understanding. The Board 
believes that adding language that states the disclosed amount is 
subject to change could dilute the significance of the disclosure.
38(e)(5)(iii) Amount Financed
    Disclosure of amount financed. Section 226.18(b), which implements 
TILA Section 128(a)(2)(A) and (a)(8), requires creditors to disclose 
the amount financed, using that term, together with a brief description 
that it represents the amount of credit of which the consumer has 
actual use. 15 U.S.C. 1638(a)(2)(A), (a)(8). Section 226.18(b) 
delineates how creditors should calculate the amount financed so that 
it reflects the net amount of credit being extended.
    In consumer testing conducted for the Board, virtually no 
participant understood the disclosure of the amount financed.\87\ The 
Board tested several versions of the amount financed disclosure, with 
alternative formatting and descriptions, to explain briefly that it 
represents the amount of credit of which the consumer has actual use to 
purchase a home or refinance an existing loan. However, these changes 
made no difference in participants' understanding of the term. In 
addition, consumer testing showed that the amount financed disclosure 
actually detracted from consumers' understanding of other disclosures. 
Many consumers mistook the amount financed for the loan amount. Some of 
these consumers were confused, however, because the amount financed was 
slightly lower than the amount borrowed in the hypothetical loan offer. 
Consumers offered various explanations regarding the difference in the 
disclosed amounts, including that the amount financed was the cost of 
purchasing a home less a down payment. Other participants stated that 
the amount financed represented escrowed amounts. Sample disclosures 
were used to try to explain that the difference between the loan amount 
and amount financed is attributable to prepaid finance charges, but 
this explanation did not appear to improve consumer comprehension. 
Consumer testing also indicated that participants would not consider 
the amount financed when shopping for a mortgage or evaluating 
competing loan offers.
---------------------------------------------------------------------------

    \87\ See also Improving Consumer Mortgage Disclosures at 35 
(finding that most respondents in consumer testing did not 
understand the term ``amount financed,'' and confused it for the 
loan amount, and discussing the risks of falling subject to 
predatory lending practices as a result of this confusion).
---------------------------------------------------------------------------

    For these reasons, the Board proposes to add new Sec.  
226.38(e)(5)(iii), which would implement TILA Section 128(a)(2)(A) and 
(a)(8) for transactions secured by real property or a dwelling. 15 
U.S.C. 1638(a)(2)(A), (a)(8). Section 226.38(e)(5)(iii) would require 
creditors to disclose the amount financed with a brief statement that 
the amount financed, plus the interest and settlement charges, is the 
amount used to calculate the annual percentage rate. As noted above, 
creditors would be required to disclose the amount financed grouped 
together with the total payments and interest and settlement charges 
required under proposed Sec.  226.38(e)(5)(i) and (ii).
    The Board proposes this approach pursuant to its authority under 
TILA Section 105(a). 15 U.S.C. 1604(a). Section 105(a) authorizes the 
Board to prescribe regulations to effectuate the statute's purposes, 
which include facilitating consumers' ability to compare credit terms 
and helping consumers avoid the uninformed use of credit. 15 U.S.C. 
1601(a), 1604(a). Based on consumer testing, the Board believes this 
proposal is appropriate to help serve TILA's purpose of assuring a 
meaningful disclosure of credit terms. The Board believes that 
requiring creditors to disclose the amount financed in the loan summary 
with other key loan terms would add unnecessary complexity and result 
in ``information overload.'' Consumer testing showed that when the 
amount financed was disclosed with the total payments and interest and 
settlement charges, that consumer comprehension of the term improved 
slightly, and confusion over other key loan terms, such as the loan 
amount, was eliminated. The Board believes that disclosing the amount 
financed as one component in the APR calculation provided consumers 
with a better understanding of its significance to the loan 
transaction. The Board also proposes new comment 38(e)(5)(iii)-3 to 
provide guidance regarding disclosure of the ``amount financed.''
    Calculation of amount financed. The Board proposes to simplify the 
calculation of the amount financed for transactions subject to the 
disclosure requirements of proposed Sec.  226.38, pursuant to the 
Board's authority under TILA Section 105(a). The Board believes that 
the proposed simplification would improve understanding of the rules 
and facilitate compliance with Regulation Z. Under proposed Sec.  
226.38(e)(5)(iii), for a transaction secured by real property or a 
consumer's dwelling, the creditor would determine the amount financed 
by subtracting all prepaid finance charges from the loan amount as 
defined in proposed Sec.  226.38(a)(1), discussed above. Under existing 
Sec.  226.18(b) and its staff commentary, creditors may elect from 
among multiple alternatives in calculating the amount financed. All of

[[Page 43309]]

the permissible methods yield the same mathematical result.
    The Board has received input from bank examiners and others that 
providing multiple approaches to calculation of the amount financed 
creates unnecessary complication. Examiners also indicate that, of the 
permissible approaches, mortgage lenders generally use the one that is 
simplest and most straightforward. The Board is now proposing to 
require that approach and to eliminate the alternatives. The Board also 
is proposing to make a conforming amendment to the staff commentary 
under Sec.  226.18(b) to reflect the fact that it would not apply to 
mortgages.
    TILA provides that the amount financed is calculated as follows:
    (1) Take the principal amount of the loan (or cash price less 
downpayment);
    (2) Add any charges that are not part of the finance charge or of 
the principal amount and that are financed by the consumer; and
    (3) Subtract any prepaid finance charge.

TILA Section 128(a)(2)(A), 15 U.S.C. 1638(a)(2)(A). Regulation Z 
provides a substantially identical calculation. See Sec.  226.18(b). 
Neither the statute nor Regulation Z defines ``principal amount of the 
loan.'' As a result, more than one understanding of that term is 
possible, and Regulation Z seeks to address several of those 
understandings rather than to define principal amount definitively.
    Current Regulation Z permits non-finance charges and prepaid 
finance charges that are financed to be included in the principal loan 
amount under step (1) or not, at the creditor's option. The creditor 
then must add in under step (2) any financed non-finance charges that 
were not included under step (1). See comment 18(b)(2)-1. Similarly, 
the creditor must subtract under step (3) any financed prepaid finance 
charges only if they were included under step (1). See comment 
18(b)(3)-1. Proposed Sec.  226.38(e)(5)(iii) effectively would define 
``principal loan amount'' as the loan amount, as that is defined in 
proposed Sec.  226.38(a)(1), which would mean the principal amount the 
consumer will borrow reflected in the loan contract. Under that 
definition, all amounts that are financed necessarily would be included 
in step (1), whether they are finance charges or not. Consequently, no 
amount ever would be added under step (2). The new provision therefore 
would streamline the calculation to eliminate that step. Similarly, the 
current commentary providing that financed prepaid finance charges 
should be subtracted in step (3) only if they were included in step (1) 
would be unnecessary, as such finance charges always would be included 
in step (1). Proposed Sec.  226.38(e)(5)(iii) would provide 
definitively that the amount financed is determined simply by 
subtracting the prepaid finance charge from the loan amount.
    The Board also is proposing comment 38(e)(5)(iii)-2 to clarify how 
to treat creditor or third-party premiums and buy-downs for purposes of 
the amount financed calculation. This proposed comment is based on 
existing comment 18(b)-2, which relates to rebates and loan premiums. 
The discussion in comment 18(b)-2 was primarily intended to address 
situations that are more common in non-mortgage transactions, 
especially credit sales, such as automobile financing. It provides that 
creditor-paid premiums and seller- or manufacturer-paid rebates may be 
reflected in the disclosures under Sec.  226.18 or not, at the 
creditor's option. Although such premiums and rebates are less likely 
to exist in mortgage transactions precisely as they are described in 
comment 18(b)-2, analogous situations can apply to mortgage financing. 
For example, real estate developers may offer to pay some or all 
closing costs or to buy down the consumer's interest rate, and 
creditors may agree to pay certain closing costs in return for a 
particular interest rate. Rather than permit any treatment at the 
creditor's option, however, proposed comment 38(e)(5)(iii)-2 would 
reflect the Board's belief that such situations are analogous to 
buydowns. Like buydowns, such premiums and rebates may or may not be 
funded by the creditor and reduce costs otherwise borne by the 
consumer. Accordingly, their impact on the amount financed, like that 
of buydowns, properly depends on whether they are part of the legal 
obligation. See comments 17(c)(1)-1 through -5. Proposed comment 
38(e)(5)(iii)-2 would clarify that the disclosures, including the 
amount financed, must reflect loan premiums and rebates regardless of 
their source, but only if they are part of the terms of the legal 
obligation between the creditor and the consumer. As noted above, the 
Board also is proposing similar revisions to existing comment 18(b)-2.
38(f) Additional Disclosures
38(f)(1) No Obligation Statement
    The MDIA amended Section 128(b)(2) of TILA to require creditors to 
disclose, in conspicuous type size and format, that receiving and 
signing a TILA disclosure does not obligate a consumer to accept the 
loan (``the MDIA statement''). 15 U.S.C. 1638(b)(2). The MDIA sets 
forth the following language for creditors to use in making this 
disclosure: ``You are not required to complete this agreement merely 
because you have received these disclosures or signed a loan 
application.'' \88\ The Board proposes to modify this statutory 
language to facilitate consumers' use and understanding of the MDIA 
statement pursuant to its authority under TILA Section 105(a) to make 
adjustments that are necessary to effectuate the purposes of TILA. 15 
U.S.C. 1604(a). Based on consumer testing, the Board believes that 
using plain language principles to revise the statutory language 
improves consumers' ability to understand the disclosure and would help 
serve TILA's purpose to provide meaningful disclosure of credit terms.
---------------------------------------------------------------------------

    \88\ Housing and Economic Recovery Act, Public Law 110-289, 122 
Stat. 2655, Sec.  2502(a)(6) (July 30, 2008).
---------------------------------------------------------------------------

    As part of consumer testing, the Board included the MDIA statement 
on the front page of the TILA, modified to replace legalistic phrasing 
with more common word usage. On the second page, the Board included a 
signature line and date, as most creditors require the consumer to sign 
the disclosure form to establish compliance with TILA. Most 
participants did not notice the MDIA statement, but indicated that they 
understood they were under no obligation to accept the loan; 
participants who did notice the text similarly understood they were 
under no obligation to accept the loan. However, upon seeing the 
signature line, some participants believed they would be obligated to 
accept the loan if they signed or initialized the disclosure. Based on 
consumer testing, the Board is concerned that although consumers may 
initially understand they are not obligated to accept a loan, this 
belief may be altered by creditors' practice of requiring consumers to 
sign or initial receipt of the disclosures. This may further discourage 
negotiation and shopping among loan products and lenders.
    To implement the new disclosure required by the MDIA, the Board 
proposes to add new Sec.  226.38(f)(1) for all transactions secured by 
real property or a dwelling. Proposed Sec.  226.38(f)(1) would require 
a statement that a consumer is not obligated to accept the loan because 
he or she has signed the disclosure. In addition, the Board proposes 
that if a creditor provides space for the consumer to sign or initial 
the TILA disclosures, then the creditor

[[Page 43310]]

must place the statement in close proximity to the space provided for 
the consumer's signature or initials. The statement must also specify 
that a signature only confirms receipt of the disclosure statement.
    The Board proposes this approach pursuant to its authority under 
TILA Section 105(a) to effectuate the statute's purposes, which include 
facilitating consumers' ability to compare credit terms and helping 
consumers avoid the uninformed use of credit. 15 U.S.C. 1601(a), 
1604(a). The Board believes that this proposal is necessary to 
encourage consumers to shop among available credit alternatives. The 
Board tested the disclosure as proposed under Sec.  226.38(f)(1). Most 
participants understood they were not obligated to accept the loan and 
could refuse to accept the loan offer even after signing. As a result, 
the Board believes the disclosure proposed by new Sec.  226.38(f)(1) is 
necessary to ensure that consumers are not discouraged from shopping or 
negotiating with the lender.
38(f)(2) Security Interest
    TILA Section 128(a)(9), 15 U.S.C. 1638(a)(9), and Sec.  226.18(m) 
require the creditor to disclose whether it has a security interest in 
the property securing the transaction. During consumer testing of the 
current TILA disclosure, participants were shown the following 
language: ``Security: You are giving a security interest in the real 
property, and fixtures and rents if indicated in the rider mortgage.'' 
Very few participants understood the current language regarding a 
security interest. The Board is concerned that consumers might not 
understand that the creditor can take the consumer's home if the 
consumer defaults on the loan agreement. To clarify the significance of 
the security interest disclosure to consumers, the Board proposes Sec.  
226.38(f)(2) to require the creditor to state that the consumer could 
lose the home if the consumer is unable to make the payments on the 
loan. This would provide a clearer disclosure regarding the effect of 
the lender taking a security interest in the home.
38(f)(3) No Guarantee to Refinance Statement
    The MDIA also amended Section 128(b)(2) of TILA to require 
creditors to disclose for variable rate transactions, in conspicuous 
type size and format, that there is no guarantee that the consumer will 
be able to refinance the transaction to lower the interest rate or 
monthly payments (``MDIA refinancing warning'').\89\ 15 U.S.C. 
1638(b)(2). To implement the disclosure required by the MDIA, the Board 
proposes to add Sec.  226.38(f)(3) to require that creditors disclose 
that there is no guarantee that the consumer will be able to refinance 
the loan to obtain a lower interest rate and payment. The Board 
believes that including such a statement on the TILA disclosure form 
will alert consumers to consider the impact of future rate adjustments 
and increased monthly payments
---------------------------------------------------------------------------

    \89\ Specifically, the MDIA requires that the Board use consumer 
testing to develop disclosures for variable rate transactions, 
including the fact that ``there is no guarantee that the borrower 
will be able to refinance to a lower amount.'' Public Law 109-8, 119 
Stat. 23, Sec.  2502(a)(6).
---------------------------------------------------------------------------

    Although the MDIA requires this refinancing warning only for 
variable rate transactions secured by a dwelling, the Board proposes to 
expand the scope of the requirement to also include fixed-rate 
transactions secured by a dwelling, as well as transactions secured by 
real property without a dwelling. The Board proposes this approach 
pursuant to its authority under TILA Section 105(a) to effectuate the 
statute's purposes, which include facilitating consumers' ability to 
compare credit terms and helping consumers avoid the uninformed use of 
credit. 15 U.S.C. 1601(a), 1604(a). The Board is concerned that some 
consumers may accept loan terms that could present refinancing concerns 
similar to variable rate transactions, such as a three-year fixed-rate 
mortgage with a balloon payment. Based on consumer testing, the Board 
believes all consumers, regardless of transaction-type, would benefit 
from a statement that encourages consideration of future possible 
market rate increases.
38(f)(4) Tax Deductibility
    The Board is also proposing changes to the closed-end disclosures 
to implement provisions of the Bankruptcy Abuse Prevention and Consumer 
Protection Act of 2005 (the ``Bankruptcy Act'') which requires 
disclosure of the tax implications for home-secured credit that may 
exceed the dwelling's fair market value. See Public Law 109-8, 119 
Stat. 23. The Bankruptcy Act primarily amended the federal bankruptcy 
code, but also contained several provisions amending TILA. Section 1302 
of the Bankruptcy Act amendments requires that advertisements and 
applications for credit (either open-end or closed-end) that may exceed 
the fair market value of the dwelling include a statement that the 
interest on the portion of the credit extension that exceeds the fair 
market value is not tax-deductible and a statement that the consumer 
should consult a tax advisor for further information on tax 
deductibility.
    The Board stated its intent to implement the Bankruptcy Act 
amendments in an ANPR published in October 2005 as part of the Board's 
ongoing review of Regulation Z (October 2005 ANPR). 70 FR 60235; Oct. 
17, 2005. The Board received approximately 50 comment letters: forty-
five letters were submitted by financial institutions and their trade 
groups, and five letters were submitted by consumer groups. In general, 
creditors asked for flexibility in providing the disclosure regarding 
the tax implications for home-secured credit that may exceed the 
dwelling's fair market value, either by permitting the notice to be 
provided to all mortgage applicants, or to be provided later in the 
approval process after creditors have determined whether the disclosure 
is triggered. Creditor commenters asked for guidance on loan-to-value 
calculations and safe harbors for how creditors should determine 
property values. Consumer advocates favored triggering the disclosure 
when negative amortization could occur. A number of commenters stated 
that in order for the disclosure to be effective and useful to the 
borrower, it should be given when the new extension of credit, combined 
with existing credit secured by the dwelling (if any), may exceed the 
fair market value of the dwelling. A few industry comments took the 
opposite view that the disclosure should be limited only to when a new 
extension of credit itself exceeds fair market value, citing the 
difficulty in determining how much debt is already secured by the 
dwelling at the time of application.
    The Board implemented section 1302 with regard to advertisements in 
its 2008 HOEPA Final Rule. See 73 FR 44522, 44600; July 30, 2008. In 
the supplementary information to that rule, the Board stated that it 
intends to implement the application disclosure portion of the 
Bankruptcy Act during its forthcoming review of closed-end and HELOC 
disclosures under TILA. Proposed Sec.  226.38(f)(4) would implement 
provisions of the Bankruptcy Act by requiring creditors to include the 
disclosure of the tax implications for a loan secured by a dwelling, if 
extension of credit may, by its terms, exceed the fair market value of 
the dwelling. The text of the proposed disclosure is based on the 
Board's consumer testing of model HELOC disclosure forms. The 
disclosure would be segregated and located directly below the table.
    The Board recognizes that creditors may not be able to determine 
whether the amount of credit extended exceeds

[[Page 43311]]

the fair market value of the dwelling, especially three days after 
application when they are required to provide an early transaction-
specific disclosures. The creditor may not be able to verify the value 
on the property until later in the loan underwriting process. The Board 
has considered whether the disclosure should be provided later in the 
approval process after the creditor has determined that the disclosure 
is triggered, for instance, after receiving the appraisal report or 
completing the underwriting process. However, such late timing of the 
disclosure would not satisfy the requirements of the Bankruptcy Act 
which requires that the disclosures be provided at the time of 
application. See 15 U.S.C. 1638(a)(15).
    The Board also considered whether the disclosure should be provided 
to all mortgage applicants, regardless of whether the amount of credit 
extended exceeds the fair market value of the dwelling. To address the 
situations in which the creditor is not certain whether the credit 
extended may exceed the fair market value of the dwelling, comment 
38(f)(4)-2 permits the disclosure to be provided to all mortgage 
applicants at creditors' discretion and provides model language.
    The Board recognizes that the scope of the proposed Sec.  
226.38(f)(4) is limited to dwellings whereas proposed Sec.  226.38 
would apply to real property and dwellings. While the Bankruptcy Act 
amendment specifically references ``consumer's dwelling,'' the Board 
believes that it would be unnecessarily burdensome to require creditors 
to create separate disclosures for the transactions secured by real 
property and those secured by a dwelling solely for the purposes of the 
tax implications disclosure. For that reason, a creditor would be 
permitted, but not required, to provide the disclosures about the tax 
implications in connection with transactions secured by both real 
property and dwellings.
38(f)(5) Additional Information and Web Site
    Consumer testing showed that many participants educated themselves 
about the mortgage process through informal networking with family, 
friends, and colleagues, while others relied on the Internet for 
information. To improve consumers' ability to make informed decisions 
about credit, the Board proposes Sec.  226.38(f)(5) to require the 
creditor to disclose that if the consumer does not understand any of 
the disclosures, then the consumer should ask questions. The creditor 
would also disclose that the consumer may obtain additional information 
at the Web site of the Federal Reserve Board and disclose a reference 
to that Web site. The Board will enhance its Web site to further assist 
consumers in shopping for a mortgage. Although it is hard to predict 
from the results of the consumer testing how many consumers might use 
the Board's Web site, and recognizing that not all consumers have 
access to the Internet, the Board believes that this Web site may be 
helpful to some consumers as they shop for a mortgage. The Board seeks 
comment on the content for the Web site.
38(f)(6) Format
    The Board is proposing to specify precise formatting requirements 
for the disclosures required by Sec.  226.38(f)(1) through (5). 
Proposed Sec.  226.38(f)(6)(i) would set forth location requirements, 
providing that the no obligation and confirmation of receipt statements 
must be disclosed together, the security interest and no guarantee to 
refinance statements must be disclosed together, and the recommendation 
to ask questions and statement regarding the Board's Web site must be 
disclosed together. Proposed Sec.  226.38(f)(6)(ii) would set forth 
highlighting requirements, providing that the no obligation and 
security interest statements, and the advice to ask questions, must be 
disclosed in bold text.
38(g) Identification of Originator and Creditor
38(g)(1) Creditor
    Currently, Sec.  226.18(a), which implements TILA Section 
128(a)(1), 15 U.S.C. 1638(a)(1), requires the creditor to disclose the 
identity of the creditor making the disclosure. Proposed Sec.  
226.38(g)(1) would require the same disclosure. In addition, proposed 
comment 38(g)(1)-1 would parallel existing comment 18(a)-1 to clarify 
that use of the creditor's name is sufficient, but the creditor may 
also include an address and/or telephone number. In transactions with 
multiple creditors, any one of them may make the disclosures, but the 
one doing so must be identified. The Board solicits comment on whether 
the creditor making the disclosures should be required to disclose its 
contact information, such as its address and/or telephone number.
    Existing footnote 38 to Sec.  226.17(a), which implements TILA 
Section 128(b)(1), 15 U.S.C. 1638(b)(1), states that the creditor's 
identity may be made together with or separately from the other 
required disclosures. The Board proposes to amend the substance of 
current footnote 38 to remove the reference to the creditor's identity 
disclosure required under Sec.  226.18(a), thereby making it subject to 
the grouped-together and segregation requirement for all non-mortgage 
closed-end credit. Similarly, Sec.  226.37(a)(2) would require the 
disclosure of the creditor's identity to be subject to the grouped-
together and segregation requirement for closed-end credit transactions 
secured by real property or a dwelling.
    The Board proposes to make this adjustment pursuant to its 
authority under TILA Section 105(a). 15 U.S.C. 1604(a). Section 105(a) 
authorizes the Board to make exceptions and adjustments to TILA to 
effectuate the statute's purposes, which include facilitating 
consumers' ability to compare credit terms, and avoid the uninformed 
use of credit. 15 U.S.C. 1604(a), 15 U.S.C. 1601(a). The Board believes 
it is important to disclose the creditor's identity so that consumers 
can more easily identify the appropriate entity. Thus, the Board 
believes this proposal would help serve TILA's purpose to provide 
meaningful disclosure of credit terms.
38(g)(2) Loan Originator
    On July 30, 2008, the Secure and Fair Enforcement for Mortgage 
Licensing Act of 2008 (SAFE Act), 12 U.S.C. 5101-5116, was enacted to 
create a Nationwide Mortgage Licensing System and Registry of loan 
originators to increase uniformity, reduce fraud and regulatory burden, 
and enhance consumer protection. 12 U.S.C. 5102. Under the SAFE Act, a 
``loan originator'' is defined as ``an individual who (I) takes a 
residential mortgage loan application; and (II) offers or negotiates 
terms of a residential mortgage loan for compensation or gain.'' 12 
U.S.C. 5102(3)(A)(i). Each loan originator is required to obtain a 
unique identifier through the Nationwide Mortgage Licensing System and 
Registry. 12 U.S.C. 5103(a)(2). The term ``unique identifier'' is 
defined as ``a number or other identifier that (i) permanently 
identifies a loan originator; (ii) is assigned by protocols established 
by the Nationwide Mortgage Licensing System and Registry and the 
Federal banking agencies to facilitate electronic tracking of loan 
originators and uniform identification of, and public access to, the 
employment history of and the publicly adjudicated disciplinary and 
enforcement actions against loan originators; and (iii) shall not be 
used for purposes other than those set forth under this title.'' 15 
U.S.C. 5102(12)(A). The system is intended to provide

[[Page 43312]]

consumers with easily accessible information to research a loan 
originator's history of employment and any disciplinary or enforcement 
actions against that person. 12 U.S.C. 5101(7).
    To facilitate the use of the Nationwide Mortgage Licensing System 
and Registry and promote the informed use of credit, the Board proposes 
Sec.  226.38(g)(2) to require the loan originator to disclose his or 
her unique identifier on the TILA disclosure, as defined by the SAFE 
Act. Proposed comment 38(g)(2)-1 would clarify that in transactions 
with multiple loan originators, each loan originator's unique 
identifier must be listed on the disclosure. For example, in a 
transaction where a mortgage broker meets the SAFE Act definition of a 
loan originator, the identifiers for the broker and for its employee 
loan originator meeting that definition would be listed on the 
disclosure.
    The Board notes that the Board, FDIC, OCC, OTS, NCUA, and Farm 
Credit Administration have published a proposed rule to implement the 
SAFE Act. See 74 FR 27386; June 9, 2009. In this proposed rule, the 
federal banking agencies have requested comment on whether there are 
mortgage loans for which there may be no mortgage loan originator. For 
example, the agencies query whether there are situations where a 
consumer applies for and is offered a loan through an automated process 
without contact with a mortgage loan originator. See id. at 27397. The 
Board solicits comments on the scope of this problem and its impact on 
the requirements of proposed Sec.  226.38(g)(2).
38(h) Credit Insurance and Debt Cancellation and Debt Suspension 
Coverage
    As discussed more fully in Sec.  226.4(d)(1) and (3), concerns have 
been raised that consumers do not understand the voluntary nature, 
costs, and eligibility restrictions of credit insurance and debt 
cancellation and debt suspension coverage. For this reason, the Board 
proposes Sec.  226.38(h) to require creditors to provide certain 
disclosures, which would be grouped together and substantially similar 
in headings, content and format to Model Clause H-17(C) in Appendix H 
to this part. Proposed comment 38(h)-1 would clarify that this 
disclosure may, at the creditor's option, appear apart from the other 
disclosures. It may appear with any other information, including the 
amount financed itemization, any information prescribed by State law, 
or other information. When this information is disclosed with the other 
segregated disclosures, however, no additional explanatory material may 
be included.
    The proposed disclosures seek to address concerns that consumers 
may not understand that some products are voluntary and not required as 
a condition of receiving credit. If the product is optional, proposed 
Sec.  226.38(h)(1)(i) would require the creditor to disclose the term 
``OPTIONAL COSTS,'' in capitalized and bold letters, along with the 
name of the program in bold letters. If the product is required, then 
proposed Sec.  226.38(h)(1)(ii) would require the creditor to disclose 
only the name of the program in bold letters. In addition, if the 
product is optional, proposed Sec.  226.38(h)(2) would require the 
creditor to disclose the term ``STOP,'' in capitalized and bold 
letters, along with a statement that the consumer does not have to buy 
the product to get the loan. The term ``not'' would be in bold letters 
and underlined.
    Concerns have also been raised that consumers may not realize that 
there are alternatives to the product. Therefore, under proposed Sec.  
226.38(h)(3), the creditor would disclose that if the consumer already 
has insurance, then the policy or coverage may not provide the consumer 
with additional benefits. Under proposed Sec.  226.38(h)(4), the 
creditor would disclose that other types of insurance may give the 
consumer similar benefits and are often less expensive.
    As described more fully in Sec.  226.4(d)(1) and (3), concerns have 
been raised that consumers are not aware that they could incur a cost 
for a product that may offer no benefit if the eligibility criteria are 
not met at the time of enrollment. That is, consumers may not be aware 
that if they do not meet the eligibility criteria at the time of 
enrollment, the product would not pay off, cancel, or suspend the 
credit obligation. Although the creditor typically has information 
about the consumer's age or employment status, some creditors do not 
use this information to determine whether the consumer meets the age or 
employment eligibility restrictions at the time of enrollment. Some 
consumers are later denied benefits based on these eligibility 
restrictions.
    For these reasons, the Board is proposing under Sec.  
226.38(h)(5)(i) to require the creditor to disclose a statement that 
based on the creditor's review of the consumer's age and/or employment 
status at the time of enrollment, the consumer would be eligible to 
receive benefits. However, if there are other eligibility restrictions, 
such as pre-existing health conditions, the creditor would be required 
to make certain other disclosures. Under proposed Sec.  
226.38(h)(5)(ii), the creditor would disclose that based on the 
creditor's review of the consumer's age and/or employment status at the 
time of enrollment, the consumer may be eligible to receive benefits. 
Under proposed Sec.  226.38(h)(6), the creditor would also disclose 
that the consumer may not be eligible to receive any benefits because 
of other eligibility restrictions.
    Proposed comment 38(h)(5)-1 would state that if, based on the 
creditor's review of the consumer's age and/or employment status at the 
time of enrollment in the product, the consumer would not qualify for 
the benefits of the product, then providing the disclosure under Sec.  
226.38(h)(5) would not comply with this provision. That is, if the 
consumer does not meet the age and/or employment eligibility criteria, 
then the creditor cannot state that the consumer may be eligible to 
receive benefits and cannot comply with this provision. In addition, 
the proposed comment would clarify that if the creditor offers a 
bundled product (such as credit life insurance combined with credit 
involuntary unemployment insurance) and the consumer is not eligible 
for all of the bundled products, then the disclosure under Sec.  
226.38(h)(5) would not comply with this provision. Finally, the 
proposed comment would clarify that the disclosure would still satisfy 
this provision if an event subsequent to enrollment, such as the 
consumer passing the age limit of the product, made the consumer 
ineligible for the product based on the product's age or employment 
eligibility restrictions.
    Proposed comment 38(h)(5)-2 would clarify that the disclosure under 
Sec.  226.38(h)(5) would be deemed to comply with this provision if the 
creditor used reasonably reliable evidence to determine whether the 
consumer met the age or employment eligibility criteria of the product. 
Reasonably reliable evidence of a consumer's age would include using 
the date of birth on the consumer's credit application, on the driver's 
license or other government-issued identification, or on the credit 
report. Reasonably reliable evidence of a consumer's employment status 
would include a consumer's statement on a credit application form, an 
Internal Revenue Service Form W-2, tax returns, payroll receipts, or 
other written evidence such as a letter or e-mail from the consumer or 
the consumer's employer.
    Finally, the disclosure would contain the debt suspension coverage 
disclosure, a Web site reference, cost

[[Page 43313]]

information, and a space for the consumer's signature and the date. To 
ensure consistency with the debt suspension coverage provisions of the 
December 2008 Open-End Final Rule, proposed Sec.  226.38(h)(7) would 
require the creditor to disclose, as applicable, a statement that the 
obligation to pay loan principal and interest is only suspended, and 
that interest will continue to accrue during the period of suspension. 
To provide more information to consumers, proposed Sec.  226.38(h)(8) 
would require the creditor to disclose a statement that the consumer 
may obtain additional information about credit insurance or debt 
suspension or debt cancellation coverage at the Web site of the Federal 
Reserve Board, and a reference to that Web site. If the product is 
optional, proposed Sec.  226.38(h)(9)(i) would require the creditor to 
disclose a statement of the consumer's request to purchase or enroll in 
the optional product and a statement of the cost of the product 
expressed as a dollar amount per month or per year, as applicable, 
together with the loan amount and the term of the product in years. 
This disclosure parallels Sec.  226.4(d)(1) and (3), which requires 
cost disclosures in order to exclude from the finance charge the credit 
insurance premium or debt cancellation or debt suspension coverage 
charge. If the product is required, proposed Sec.  226.38(h)(9)(ii) 
would require the creditor to disclose that fact, along with a 
statement of the cost of the product expressed as a dollar amount per 
month or per year, as applicable, together with the loan amount and the 
term of the product in years. The cost, month or year, loan amount, and 
term of the product would be underlined. The provisions regarding 
required products would be applicable to the extent Regulation Y, 12 
CFR part 225, or State or other law would not prohibit requiring the 
product. Finally, proposed Sec.  226.38(h)(10) would require the 
creditor to provide a designation for the signature of the consumer and 
the date of the signing.
    The Board proposes to require this disclosure using its authority 
under TILA Section 105(a), 15 U.S.C. 1604(a). Because proposed Sec.  
226.4(g) would treat a premium or charge for credit insurance or debt 
cancellation or debt suspension as a finance charge for closed-end 
credit transactions secured by real property or a dwelling, the 
creditor would not be required to provide the disclosure under Sec.  
226.4(d)(1) and (3) to exclude the premium or charge from the finance 
charge. The Board believes, however, that the consumer would still 
benefit from a disclosure of the voluntary nature, costs, and 
eligibility restrictions of credit insurance or debt cancellation or 
debt suspension coverage, and thus the proposal would require a 
substantially similar disclosure.
    TILA Section 105(a), 15 U.S.C. 1604(a), authorizes the Board to 
prescribe regulations to carry out the purposes of the act. TILA's 
purpose includes promoting ``the informed use of credit,'' which 
``results from an awareness of the cost thereof by consumers.'' TILA 
Section 102(a), 15 U.S.C. 1601(a). A premium or charge for credit 
insurance or debt cancellation or debt suspension coverage is a cost 
assessed in connection with credit. The credit transaction and the 
relationship between the creditor and the consumer are the reasons the 
product is offered or available. Because the merits of this product 
have long been debated,\90\ the Board believes that consumers would 
benefit from clear and meaningful disclosures regarding the costs, 
benefits, and risks associated with this product. As discussed more 
fully in Sec.  226.4(d)(1) and (3), consumer testing showed that 
without clear disclosures participants were unaware of the voluntary 
nature, costs, and eligibility restrictions. For these reasons, the 
Board believes that this proposed rule would serve to inform consumers 
of the cost of this credit product.
---------------------------------------------------------------------------

    \90\ See, e.g., Credit CARD Act of 2009, Public Law No. 111-24, 
Sec.  509; 123 Stat. 1734, 1763 (2009) (requiring the General 
Accounting Office to provide a report to Congress by December 31, 
2010, of the suitability of credit insurance, debt cancellation 
agreements, and debt suspension agreements for target customers, the 
``predatory nature'' of such offers, and the loss rates compared to 
more traditional insurance products).
---------------------------------------------------------------------------

38(i) Required Deposit
    Proposed Sec.  226.38(i) addresses disclosure requirements when 
creditors require consumers to maintain deposits as a condition to the 
specific transaction, for transactions secured by real property or a 
dwelling. Proposed Sec.  226.38(i) is consistent with Sec.  226.18(r), 
which applies to transactions not secured by real property or a 
dwelling. The Board is proposing to revise Sec.  226.18(r) and 
associated commentary, as discussed above, and proposed Sec.  226.38(i) 
reflects the revised text and associated commentary.
38(j) Separate Disclosures
    Consumer testing indicated that participants generally felt 
overwhelmed by the amount of information presented throughout the loan 
process and especially at consummation. As a result, the Board seeks to 
streamline the TILA disclosures and focus on the terms that 
participants stated were important for shopping and for understanding 
their loan terms. Currently, TILA and Regulation Z mandate that the 
following disclosures be grouped together with the required disclosures 
and segregated from everything else: rebate, late payment, property 
insurance, contract reference, and assumption policy. See TILA Sections 
128(a)(9), (10), (11), (12), (13) and (b) and 106(c); 15 U.S.C. 
Sec. Sec.  1638(a)(9), (10), (11), (12), (13) and (b) and 1605(c); 
Sec. Sec.  226.4(d)(2), 226.17(a)(1), and 226.18(k)(2), (l), (n), (p), 
and (q). Consumer testing showed that these terms were not of primary 
importance to consumers in choosing a mortgage. With respect to 
assumption, for example, very few participants understood the language 
indicating that the loan was assumable, and even fewer felt it was 
important information. With respect to property insurance, most 
participants understood the language indicating that the borrower can 
obtain property insurance from anyone that is acceptable to the lender, 
but the participants felt that this was not important to their decision 
making.
    TILA Section 105(a) authorizes the Board to make exceptions to TILA 
to effectuate the statute's purposes, which includes promoting the 
informed use of credit. 15 U.S.C. 1601(a), 1604(a). The Board believes 
that requiring these disclosures to appear separately from the other 
required disclosures would improve the consumer's ability to focus on 
the terms most useful to evaluating the proposed credit transaction.
    TILA Section 105(f) authorizes the Board to exempt any class of 
transactions from coverage under any part of TILA if the Board 
determines that coverage under that part does not provide a meaningful 
benefit to consumers in the form of useful information or protection. 
15 U.S.C. 1604(f)(1). TILA Section 105(f) directs the Board to make 
this determination in light of specific factors. 15 U.S.C. 1604(f)(2). 
These factors are (1) the amount of the loan and whether the disclosure 
provides a benefit to consumers who are parties to the transaction; (2) 
the extent to which the requirement complicates, hinders, or makes more 
expensive the credit process for the class of transactions; (3) the 
status of the borrower, including any related financial arrangements of 
the borrower, the financial sophistication of the borrower relative to 
the type of transaction, and the importance to the borrower of the 
credit, related supporting property, and coverage under TILA; (4) 
whether the loan is secured by the principal residence of

[[Page 43314]]

the consumer; and (5) whether the exemption would undermine the goal of 
consumer protection. Although a credit transaction secured by real 
property or a dwelling is important to the borrower, the Board believes 
that removing these disclosures from the other segregated information 
would further, rather than undermine, the goal of consumer protection 
because consumers would then focus on the terms that are most important 
to their decision making process. The proposed rule would still require 
that the information be disclosed but would simply no longer require 
the disclosures to be provided with the segregated information.
38(j)(1) Itemization of Amount Financed
    TILA Section 128(a)(2)(B), 15 U.S.C. 1638(a)(2)(B), and Sec.  
226.18(c) currently require that the creditor provide the consumer with 
a notice that an itemization of amount financed is available on request 
and to provide it when the consumer so requests. Regulation Z also 
provides that the good faith estimate of settlement costs (GFE) 
provided pursuant to RESPA suffices to satisfy the itemization of 
amount financed requirement. See Sec.  226.18(c)(1), fn. 40. The staff 
commentary provides further that the HUD-1 settlement statement 
provided at settlement under RESPA also may be substituted for the 
itemization in connection with later disclosures made pursuant to Sec.  
226.19(a). See comment 18(c)-4.
    Proposed Sec.  226.38(j)(1) would mirror the rules currently found 
under Sec.  226.l8(c) permitting a creditor to provide disclosures 
pursuant to RESPA in lieu of the itemization of amount financed. These 
rules originally were established by the Board pursuant to its 
authority under TILA Section 105(a) to make exceptions to facilitate 
compliance with TILA, and the Board is proposing to permit similar 
treatment under the same authority. Proposed Sec.  226.38(j)(1) would 
differ from current Sec.  226.18(c), as discussed below, to reflect 
recent changes to Regulation Z.
    Under the proposal, the provisions permitting substitution of RESPA 
disclosures for the itemization of amount financed would be removed 
from Sec.  226.18 and included under proposed Sec.  226.38(j)(1). That 
section would govern the itemization disclosure contents for mortgage 
transactions, including all those subject to RESPA. As noted above, the 
Board also is proposing to make certain technical and conforming 
amendments under Sec.  226.18(c).
    Proposed Sec.  226.38(j)(1)(i) would provide the same four 
categories of the itemization as currently appear in Sec.  
226.18(c)(1)--the amount of proceeds distributed directly to the 
consumer, the amount credited to the consumer's account, amounts paid 
to other persons on the consumer's behalf, and the prepaid finance 
charge. Proposed Sec.  226.38(j)(1)(ii) similarly would provide to 
creditors the alternative under current Sec.  226.18(c)(2) of 
disclosing the right to receive an itemization and providing it when 
the consumer so requests, instead of delivering the itemization 
routinely. Finally, proposed Sec.  226.38(j)(1)(iii) would provide the 
alternative of substituting the RESPA GFE for the itemization. It also 
would state a parallel alternative of substituting the HUD-1 settlement 
statement for the itemization when a creditor provides later 
disclosures pursuant to Sec.  226.19(a)(2), which currently is 
addressed only in the staff commentary under Sec.  226.18(c). And 
proposed Sec.  226.38(j)(1)(iii) would provide that the substitution is 
permissible for any transaction subject to Sec.  226.38, whether 
subject to RESPA or not.
    The Board notes that the timing of the HUD-1 settlement statement 
no longer is consistent with the timing of the TILA redisclosure under 
Sec.  226.19(a)(2). Regulation X under RESPA requires the HUD-1 to be 
provided at settlement,\91\ which generally corresponds with 
consummation of the transaction under Regulation Z. Under the MIDA 
final rule, and the proposed revisions to Sec.  226.19 under this 
proposal, the redisclosure required under Sec.  226.19(a)(2) must be 
received by the consumer at least three business days before 
consummation of the transaction. As current comment 18(c)-1 provides, 
and proposed Sec.  226.38(j)(1) also would require, the itemization 
must be provided at the same time as the segregated disclosures. 
Accordingly, proposed Sec.  226.38(j)(1)(iii) would provide that the 
HUD-1 settlement statement is a permissible substitute for the 
itemization of amount financed only if it is received by the consumer 
at least three business days prior to consummation, in accordance with 
Sec.  226.19(a)(2).
---------------------------------------------------------------------------

    \91\ 24 CFR 3500.10(b). The settlement agent must provide the 
borrower with an opportunity to inspect the HUD-1 during the 
business day preceding settlement, but only completed to reflect all 
information known to the settlement agent at the time. Id. 
3500.10(a).
---------------------------------------------------------------------------

    The Board realizes that, in general, consumers currently receive a 
fully completed HUD-1 settlement statement only at consummation, in 
accordance with RESPA's requirements. For this reason, mortgage 
creditors might not take advantage of the alternative in proposed Sec.  
226.38(j)(1)(iii) as widely as they historically have done under Sec.  
226.18(c)(1), fn. 40. On the other hand, the Board notes that a 
creditor that does not avail itself of that alternative must follow one 
of the other two alternatives. Under proposed Sec. Sec.  226.19(a) and 
226.38(j)(1)(i), the creditor still must provide substantially the same 
information three business days before consummation. Under proposed 
Sec. Sec.  226.19(a) and 226.38(j)(1)(ii), the creditor also must do 
so, at least in those cases where the consumer requests the 
itemization. Further, given the proposed expansion of the finance 
charge under Sec.  226.4, discussed above, all of the information 
contained in either the good faith estimate or the itemization would 
have to be firmly established by three business days before 
consummation so that the creditor can comply with the timing 
requirements of proposed Sec.  226.19(a)(2).
    In any event, the Board believes that to permit substitution of the 
HUD-1 settlement statement for the itemization without requiring that 
it be delivered three business days before consummation would be 
inconsistent with the purposes of the MDIA amendments. The Board seeks 
comment on whether creditors would continue to make significant use of 
this alternative as proposed Sec.  226.38(j)(1)(iii) would implement it 
and, if not, whether the alternative should be retained. If it should 
be retained, the Board seeks comment on how it might be structured 
without requiring that the HUD-1 settlement statement be received by 
the consumer earlier than RESPA requires while also preserving the 
purposes of the MDIA.
38(j)(2) Through (6) Rebate; Late Payment; Property Insurance; Contract 
Reference; Assumption Policy
    The Board proposes to use its exception and exemption authorities 
under TILA Section 105(a), 15 U.S.C. 1604(a), to require creditors to 
provide the following disclosures separately from the other required 
disclosures: rebate under proposed Sec.  226.38(j)(2), late payment 
under proposed Sec.  226.38(j)(3), property insurance under proposed 
Sec.  226.38(j)(4), contract reference under proposed Sec.  
226.38(j)(5), and assumption policy under proposed Sec.  226.38(j)(6). 
The Board is not proposing to change the substantive content of these 
disclosures. Proposed Sec.  226.38(j) would mirror Sec.  226.18, except 
that the proposed requirement would be provided separately from the 
other required disclosures. The proposed comments for these

[[Page 43315]]

disclosures would also parallel the applicable comments under Sec.  
226.18.
    In addition, the Board proposes Model Clauses at Appendix H-23 for 
the following non-segregated disclosures: rebate, late payment, 
property insurance, contract reference, and assumption policy. The 
Model Clauses are based on the Board's consumer testing and the Board 
believes that model clauses will enhance consumer understanding of the 
information, helping consumers to avoid the uninformed use of credit.
Appendices G and H--Open-End and Closed-End Model Forms and Clauses
    Appendices G and H set forth model forms, model clauses and sample 
forms that creditors may use to comply with the requirements of 
Regulation Z. Appendix G contains model forms, model clauses and sample 
forms applicable to open-end plans. Appendix H contains model forms, 
model clauses and sample forms applicable to closed-end loans. Although 
use of the model forms and clauses is not required, creditors using 
them properly will be deemed to be in compliance with the regulation 
with regard to those disclosures. As discussed above, the Board 
proposes to revise or add several model forms, model clauses and sample 
forms to Appendix H for transactions secured by real property or a 
dwelling. The revised or new model forms and clauses, and sample forms, 
are discussed above in the section-by-section analysis applicable to 
the regulatory provisions to which the forms or clauses relate. See 
discussion under Sec. Sec.  226.19(b), 226.20(c)-(e), and 226.38(a)-
(j). In addition, the Board proposes to add new model clauses and a 
sample form relating to credit insurance, debt cancellation and debt 
suspension coverage to both Appendix G and H for open-end and closed-
end loans. These model clauses and sample forms are discussed under 
proposed Sec.  226.4(d)(1) and (3) and 226.38(h). In Appendix H, all 
other existing forms and clauses applicable to transactions not secured 
by real property or a dwelling have been retained without revision.
    The Board also proposes to revise or add commentary to the model 
forms, model clauses and sample forms in Appendix H, as discussed 
below. The Board solicits comments on the proposed revisions below, as 
well as whether any additional commentary should be added to explain 
the forms and clauses contained in Appendix H.

Permissible Changes

    The commentary to appendices G and H currently states that 
creditors may make certain changes in the format and content of the 
model forms and clauses, and may delete any disclosures that are 
inapplicable to a transaction or a plan without losing the Act's 
protection from liability. However, certain formatting changes may not 
be made with respect to certain model and sample forms in Appendix G. 
See comment app. G and H-1. As discussed above, the Board is proposing 
format and content requirements with respect to disclosures for 
transactions secured by real property or a dwelling, such as a tabular 
requirement for ARM loan program disclosures and ARM adjustment 
notices, and transaction-specific disclosures required for loans 
secured by real property or a dwelling. See proposed Sec. Sec.  
226.19(b), 226.20(c), and 226.38(a)-(j). Accordingly, the Board would 
amend comment app. G and H-1 to indicate that certain formatting 
changes may not be made with respect to certain model forms, model 
clauses and sample forms in Appendix H. In addition, as discussed more 
fully under Sec.  226.38, the Board proposes to require creditors to 
provide disclosures for transactions secured by real property or a 
dwelling only as applicable. As a result, the Board would not allow 
creditors to use multi-purpose forms; the Board would amend comment 
app. G and H-1(vi) to clarify that the use of multipurpose standard 
forms is not permitted for transactions secured by real property or a 
dwelling. See discussion under Sec.  226.37(a)(2).

Debt Cancellation Coverage

    Currently, commentary to appendices G and H states that creditors 
are not authorized to characterize debt-cancellation fees as insurance 
premiums for purposes of the regulation. The Board proposes to amend 
comment app. G and H-2 to clarify that the commentary also applies to 
debt suspension fees.

Appendix H--Closed-End Model Forms and Clauses

Model Forms, Model Clauses, and Sample Forms for Closed-End Disclosures

    As noted above, the Board proposes a new disclosure regime under 
Sec.  226.38 for transactions secured by real property or a dwelling. 
As a result, the following sample forms are rendered unnecessary and 
deleted: Sample H-13 (mortgage with demand feature sample); Sample H-14 
(variable-rate mortgage sample); and Sample H-15 (graduated-payment 
mortgage sample). Comment app. H-1 would be revised to reflect the 
deletion of Samples H-13 through H-15. The Board would further amend 
comment app. H-1 to reflect that, under the proposal, new model clauses 
are added regarding credit life insurance, debt cancellation, or debt 
suspension disclosures, and creditor-placed property insurance 
disclosures. See discussion under Sec. Sec.  226.4(d)(1) and (3), 
226.38(h), and 226.20(e). These deleted samples forms and new model 
clauses are discussed more fully below.
    Currently, comment app. H-2 addresses the flexibility given to 
creditors in providing the itemization of amount financed disclosure 
required under current Sec.  226.18(c) and illustrated by Model Clause 
H-3. As discussed above, the Board is proposing new Sec.  226.38(j)(1) 
regarding disclosure of the itemization of amount financed for 
transactions secured by real property or a dwelling. As a result, the 
Board would amend comment app. H-2 to update cross-references. In a 
technical revision, the Board would amend comment app. H-3 to clarify 
that the guidance applies to new Model Clauses H-4(B) and H-4(C), H-
4(H), H-16, H-17(A) and H-17(C), H-18, and H-20 through H-23. These new 
model clauses are discussed more fully below.

Model Forms, Model Clauses, and Sample Forms for ARM Loan Program 
Disclosures

    Currently, Appendix H contains several model clauses, and a sample 
form, related to variable-rate loan program disclosures required under 
current Sec.  226.18(f)(1), 226.18(f)(2) and 226.19(b). Current Model 
Clause H-4(A) contains model clauses for variable-rate disclosures 
required under Sec.  226.18(f)(1) for transactions not secured by a 
principal dwelling, or transactions secured by a dwelling with a term 
of one year or less. Current Model Clause H-4(B) contains model clauses 
for variable-rate disclosures for transactions that are secured by a 
principal dwelling with a term greater than one year. Current Model 
Clause H-4(C) contains model clauses related to variable-rate loan 
program disclosures required under Sec.  226.19(b). Current Sample H-14 
is a sample disclosure illustrating required disclosures under current 
Sec.  226.19(b) of interest rate and monthly payment changes, as well 
as an historical example, for variable-rate loan programs.
    Under the proposal, the Board would require new disclosures under 
Sec.  226.19(b) for adjustable-rate loan programs, and would revise 
Sec.  226.18(f)(1) and delete Sec.  226.18(f)(2) to

[[Page 43316]]

reflect such proposed changes to Sec.  226.19(b). Accordingly, the 
Board proposes to delete current Model Clause H-4(B) and add new Model 
H-4(B) to illustrate, in the tabular format, the disclosures required 
under Sec.  226.19(b) for adjustable-rate transactions secured by real 
property or a dwelling. The Board also would delete current Model 
Clause H-4(C) and add new Model Clauses H-4(C) to reflect the proposed 
changes to Sec.  226.19(b), as discussed above, and to provide model 
clauses regarding interest rate carryover, conversion features, and 
preferred rates. The Board proposes to add Samples H-4(D) through H-
4(F) to provide examples of how certain disclosures under Sec.  
226.19(b) may be provided, in the tabular format, for adjustable-rate 
loan programs that contain a hybrid, interest only, or payment option 
feature, respectively. In addition, the heading to Model Clause H-4(A) 
would be revised to update the cross-reference to Sec.  226.18(f), and 
current Sample H-14 regarding variable-rate disclosures would be 
deleted and reserved.
    The Board also proposes to revise existing commentary that provides 
guidance to creditors on how to use current Model Clauses H-4(A) 
through (C). Currently, comments app. H-4 through H-6 provide guidance 
regarding variable-rate loan program disclosures required under current 
Sec. Sec.  226.18(f)(1)-(2) and 226.19(b). Under the proposal, the 
Board would delete guidance contained in current comment app. H-5 
regarding disclosures under Sec.  226.18(f)(2) as unnecessary, and 
instead provide that disclosures required under Sec.  226.19(b) for 
adjustable-rate transactions be provided in the tabular format, as 
illustrated by Model H-4(B), and Samples H-4(D) through H-4(F). The 
Board also would delete guidance currently contained in comment app. H-
6 relating to variable-rate disclosures, and instead provide guidance 
regarding model clauses on carryover interest, a conversion feature, or 
a preferred rate. In a technical revision, the Board would revise 
comment app. H-4 to update the cross-reference to Sec.  226.18(f).

Model Forms, Model Clauses, and Sample Forms for ARM Adjustment Notices

    Currently, Appendix H contains Model Clause H-4(D), which contains 
model clauses regarding interest rate and payment adjustment notices 
required for variable-rate transactions under current Sec.  226.20(c). 
As discussed above under proposedSec.  226.20(c), the Board proposes 
new timing and disclosure requirements regarding interest rate and 
payment changes for adjustable-rate transactions secured by real 
property or a dwelling. Accordingly, the Board would add a model form 
and two samples forms to illustrate, in the tabular format, the 
disclosures required under proposed Sec.  226.20(c)(2) for ARM 
adjustment notices when there is an interest rate and payment change. 
See proposed Model H-4(G) and Samples H-4(I) and H-4(J). In addition, 
the Board proposes to add a model form to illustrate disclosures 
required under proposed Sec.  226.20(c)(3) when there is an interest 
rate adjustment without any change to payment. See proposed Model H-
4(K). Current Model Clause H-4(D) would be deleted and new Model 
Clauses H-4(H) would be added to reflect the proposed changes to Sec.  
226.20(c), as discussed above. The Board also proposes to revise 
current comment app. H-7 to provide that disclosures required under 
Sec.  226.20(c) be provided in the tabular format, as illustrated by 
new Model H-4(G), and Samples H-4(I) and H-4(J).

Model Forms, Model Clauses, and Sample Forms for Periodic Statements

    Currently, creditors are not required to provide certain 
disclosures with respect to periodic statements for loans that are 
negatively amortizing. As discussed under proposed Sec.  226.20(d), the 
Board would require creditors to disclose periodic payment options on a 
monthly basis for transactions secured by real property or a dwelling 
that offer payment options and are negatively amortizing. Accordingly, 
the Board is proposing to add new Model Form H-4(L) that creditors may 
use to comply with the requirements in proposed Sec.  226.20(d).

Model Clauses for Section 32 (HOEPA) Disclosures

    Currently, Appendix H contains Mortgage Sample H-16, which provides 
model clauses for disclosures required under Sec.  226.32(c), such as a 
notice to the borrower that he or she is not obligated to accept the 
terms of the loan and security interest disclosures. As discussed under 
proposed Sec.  226.32(c)(1), the Board would require creditors to 
provide plain-language versions of the ``no obligation'' and ``security 
interest'' disclosures to better inform consumers who are considering 
obtaining HOEPA loans. The Board would revise Mortgage Sample H-16 
accordingly. In addition, the Board proposes to revise commentary 
currently contained in comment app. H-20 to clarify that these 
disclosures are required for all HOEPA loans, and as noted below, would 
move this commentary to current comment app. H-17. In a technical 
revision, the Board would revise the heading to Mortgage Sample H-16 to 
reflect that it contains model clauses.

Model Clause for Credit Insurance, Debt Cancellation, or Debt 
Suspension

    Currently, Appendix H contains a model clause and sample form that 
creditors may use to comply with the disclosure requirements under 
current Sec.  226.4(d)(3) for debt suspension. See Model Clause H-17(A) 
and Sample H-17(B). As discussed above, the Board proposes new 
disclosure requirements for credit insurance, debt cancellation and 
debt suspension for all closed-end loans. See proposed Sec. Sec.  
226.4(d)(1), (d)(3) and 226.38(h). Accordingly, the Board proposes to 
add Model Clause H-17(C) and Sample H-17(D) that creditors may use to 
comply with the proposed requirements under Sec. Sec.  226.4(d)(1), 
(d)(3) and 226.38(h).

Model Clause for Creditor-Placed Property Insurance

    Currently, creditors are not required to provide any disclosures to 
the consumer with respect to creditor-placed property insurance. As 
discussed under proposed Sec.  226.20(e), the Board would require 
creditors to provide notice of the cost and coverage of creditor-placed 
property insurance before charging the consumer for such insurance for 
transactions secured by real property or a dwelling. For all other 
closed-end loans, these disclosures would be required if creditors 
intend to exclude the creditor-placed property insurance fee from the 
finance charge under Sec.  226.4(d). Accordingly, the Board proposes to 
add Model Clause H-18 that creditors may use to comply with the 
proposed requirements under Sec.  226.20(e).

Model Forms, Model Clauses, and Sample Forms for Transaction-Specific 
Disclosures for Loans Secured by Real Property or a Dwelling

    Currently, Appendix H contains several model forms, model clauses 
and samples that creditors may use to comply with the disclosures 
required under current Sec.  226.18 for transactions secured by real 
property or a dwelling. Current Model H-2 illustrates the format and 
content of disclosures currently required under Sec.  226.18 for 
mortgages. Current Model Clause H-6 contains a model clause for an 
assumption policy. Current Samples H-13 and H-15 are sample disclosures 
illustrating a mortgage with a demand feature and a graduated-payment 
mortgage, respectively.

[[Page 43317]]

    As discussed under proposed Sec.  226.38, the Board proposes a new 
disclosure regime for transactions secured by real property or a 
dwelling. Accordingly, the Board proposes to add new Model Forms, Model 
Clauses, and Sample Forms H-19 through H-23 that creditors may use to 
comply with the requirements in proposed Sec.  226.38(a) through (j). 
The Board proposes to add Models H-19(A) through H-19(C) to illustrate 
the format and content of disclosures required under proposed Sec.  
226.38 for fixed-rate, hybrid adjustable-rate, and payment option 
mortgages, respectively. In addition, the Board would add Model Clauses 
H-20 and H-21 to provide guidance to creditors on how to disclose a 
balloon payment or introductory rate feature, respectively. Model 
Clause H-22 would be added to provide model clauses relating to key 
questions about risk disclosures required under proposed Sec.  
226.38(d)(2). Model Clause H-23 would be added to provide model clauses 
for the following disclosures required under proposed Sec.  
226.38(j)(2)-(6) for transactions secured by real property or a 
dwelling: rebate; late payment; property insurance; contract reference; 
and assumption policy. Under the proposal, current Samples H-13 and H-
15 would be rendered unnecessary and therefore, are deleted and 
reserved. Model Clause H-6, which contains the current model clause for 
assumption, would be deleted because assumption policies are only 
applicable to transactions secured by real property or a dwelling; H-6 
would be reserved.
    In addition, the Board proposes to add several sample forms to 
provide examples of how creditors can provide certain disclosures 
required under proposed Sec.  226.38 in the tabular format or scaled 
graph, as applicable, for various transaction types secured by real 
property or a dwelling. Specifically, proposed Samples H-19(D) through 
H-19(I) illustrate disclosures required under proposed Sec.  226.38 for 
the following transaction-types, respectively: a fixed mortgage with 
balloon payment; an interest only, fixed mortgage; a step-payment 
mortgage; a hybrid adjustable-rate mortgage; an interest-only ARM; and 
a payment option ARM.
    The Board also proposes to add or revise commentary to provide 
guidance to creditors on the purpose of the sample forms, and how to 
use Model Forms, Model Clauses, and Sample Forms H-19 through H-23 for 
transactions secured by real property or a dwelling. Current comment 
app. H-12 provides guidance to creditors regarding the purpose of 
sample forms generally. Under the proposal, the Board would update the 
cross-references contained in current comment app. H-12 to clarify that 
the commentary applies to proposed Sample H-4(D) through-4(F) for ARM 
loan program disclosures required under proposed Sec.  226.19(b); 
Samples H-4(I) and H-4(J) for ARM adjustment notice disclosures 
required under Sec.  226.20(c); Sample H-17(D) for credit insurance, 
debt cancellation or debt suspension disclosures required under Sec.  
226.4(d)(1), (d)(3) and 226.38(h); and Samples H-19(D) through H-19(I) 
for disclosures required under Sec.  226.38 for transactions secured by 
real property or a dwelling.
    Current comment app. H-16 provides guidance regarding the sample 
forms that creditors may use to illustrate required disclosures for 
mortgages subject to RESPA and would be updated to include cross-
references to proposed Samples H-19(D) through H-19(I), and to the 
itemization of amount financed disclosure under proposed Sec.  
226.38(j)(1)(iii). Under the proposal, guidance contained in current 
comment app. H-17 regarding disclosure of a mortgage with a demand 
feature under Sec.  226.18 would be deleted as unnecessary. As noted 
above, commentary regarding disclosures required under Sec.  226.32(c) 
for HOEPA loans would be moved from comment app. H-20 to comment app. 
H-17.
    In addition, under the proposal, current comment app. H-18, which 
contains guidance relating to variable-rate disclosures required under 
current Sec.  226.19(b), would be deleted. New commentary would be 
added to comment app. H-18 to provide format details about proposed 
sample forms that illustrate the disclosures required for transactions 
secured by real property or a dwelling under proposed Sec.  226.19(b) 
or 226.38, as applicable. For example, the commentary indicates that 
Samples H-4(D) through H-4(F), and H-19(D) through H-19(I) are designed 
to be printed on an 8\1/2\x11 inch sheet of paper. In addition, the 
following formatting techniques were used in presenting the information 
in the table to ensure that the information was readable:
    1. A readable font style and font size (10-point Ariel font style, 
except for the APR which is shown in 16-point type).
    2. Sufficient spacing between lines of the text. That is, words 
were not compressed to appear smaller than 10-point type, except for 
headings used to provide interest rate and payment summary disclosures 
required under proposed Sec.  226.28(c), in the tabular format, which 
are shown in 9-point type.
    3. Standard spacing between words and characters.
    4. Sufficient white space around the text of the information in 
each row, by providing sufficient margins above, below and to the sides 
of the text.
    5. Sufficient contrast between the text and the background. Black 
text was used on white paper.
    Although the Board is not requiring creditors to use the above 
formatting techniques in presenting information in the table (except 
for the 10-point and 16-point font size), the Board encourages 
creditors to consider these techniques when disclosing information in 
the tabular format, or scaled graph, to ensure that the information is 
presented in a readable format.
    Under the proposal, commentary currently contained in comment app. 
H-19 regarding the terms of a graduated-payment mortgage would be 
deleted, and would instead indicate the terms of the fixed-rate 
mortgage illustrated in Sample H-19(D). As noted above, guidance 
contained in current app. H-20 regarding disclosures required under 
Sec.  226.32(c) would be moved to comment app. H-17. The Board proposes 
to add new commentary to comment app. H-20 to indicate the terms of the 
interest-only, fixed-rate mortgage illustrated in Sample H-19(E). The 
Board also proposes to add comments app. H-21 through -24 to indicate 
the terms of the following transaction types, which are illustrated in 
Samples H-19(F) through 19(I), respectively: a step-payment mortgage; a 
hybrid ARM; an interest-only ARM; and a payment option ARM. The 
transactions discussed in revised comments app. H-19 and H-20, and new 
comments app. H-21 through -24, all assume the average prime offer 
rates (APORs) that would be used in providing the disclosures required 
under proposed Sec.  226.38(b), and are not representative of the 
actual APORs for the respective weeks.
    Further, the Board proposes to add comments app. H-25 through -28 
relating to the following, respectively: the disclosure required under 
proposed Sec.  226.38(c) for a balloon payment feature; the disclosure 
required under proposed Sec.  226.38(c)(2)(iii) for transactions that 
have an initial discounted rate that later adjusts; disclosures 
required under proposed Sec.  226.19(d)(2) for key questions about risk 
that would be provided only as applicable; and disclosures required 
under proposed Sec.  226.38(j)(2)-(6) that would be provided separately 
from disclosures required under proposed Sec.  226.38(a)-(j). In a 
technical revision,

[[Page 43318]]

current comments app. H-21 through -24, which contain guidance relating 
to forms issued by the U.S. Department of Health and Human Services and 
approved for certain student loans, would be redesignated as comments 
app. H-29 through -32, respectively; no substantive change is intended.

VII. Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act (PRA) of 1995 (44 
U.S.C. 3506; 5 CFR part 1320 Appendix A.1), the Board reviewed the 
proposed rule under the authority delegated to the Board by the Office 
of Management and Budget (OMB). The collection of information that is 
required by this proposed rule is found in 12 CFR part 226. The Board 
may not conduct or sponsor, and an organization is not required to 
respond to, this information collection unless the information 
collection displays a currently valid OMB control number. The OMB 
control number is 7100-0199.
    This information collection is required to provide benefits for 
consumers and is mandatory (15 U.S.C. 1601 et seq.). Since the Board 
does not collect any information, no issue of confidentiality arises. 
The respondents/recordkeepers are creditors and other entities subject 
to Regulation Z.
    TILA and Regulation Z are intended to ensure effective disclosure 
of the costs and terms of credit to consumers. For open-end credit, 
creditors are required to, among other things, disclose information 
about the initial costs and terms and to provide periodic statements of 
account activity, notice of changes in terms, and statements of rights 
concerning billing error procedures. Regulation Z requires specific 
types of disclosures for credit and charge card accounts and home 
equity plans. For closed-end loans, such as mortgage and installment 
loans, cost disclosures are required to be provided prior to 
consummation. Special disclosures are required in connection with 
certain products, such as reverse mortgages, certain variable-rate 
loans, and certain mortgages with rates and fees above specified 
thresholds. TILA and Regulation Z also contain rules concerning credit 
advertising. Creditors are required to retain evidence of compliance 
for two years, Sec.  226.25, but Regulation Z identifies only a few 
specific types of records that must be retained.\92\
---------------------------------------------------------------------------

    \92\ See comments 25(a)-3 and -4 and proposed comment 25(a)-5.
---------------------------------------------------------------------------

    Under the PRA, the Board accounts for the paperwork burden 
associated with Regulation Z for the State member banks and other 
creditors supervised by the Federal Reserve that engage in consumer 
credit activities covered by Regulation Z and, therefore, are 
respondents under the PRA. Appendix I of Regulation Z defines the 
Federal Reserve-regulated institutions as: State member banks, branches 
and agencies of foreign banks (other than federal branches, federal 
agencies, and insured State branches of foreign banks), commercial 
lending companies owned or controlled by foreign banks, and 
organizations operating under section 25 or 25A of the Federal Reserve 
Act. Other federal agencies account for the paperwork burden imposed on 
the entities for which they have administrative enforcement authority. 
The current total annual burden to comply with the provisions of 
Regulation Z is estimated to be 734,127 hours for the 1,138 Federal 
Reserve-regulated institutions that are deemed to be respondents for 
the purposes of the PRA. To ease the burden and cost of complying with 
Regulation Z (particularly for small entities), the Board provides 
model forms, which are appended to the regulation.
    As discussed in the preamble, the Board proposes changes to format, 
timing, and content requirements for the four main types of credit 
disclosures for closed-end mortgages governed by Regulation Z: (1) 
Disclosures at or before application; (2) disclosures within three days 
after application; (3) disclosures before consummation; and (4) 
disclosures after consummation. The proposed rule would impose a one-
time increase in the total annual burden under Regulation Z for all 
respondents regulated by the Federal Reserve by 227,600 hours, from 
734,127 to 961,727 hours. In addition, the Board estimates that, on a 
continuing basis, the proposed revisions to the rules would increase 
the total annual burden on a continuing basis from 734,127 to 1,280,367 
hours.
    The total estimated burden increase, as well as the estimates of 
the burden increase associated with each major section of the proposed 
rule as set forth below, represents averages for all respondents 
regulated by the Federal Reserve. The Board expects that the amount of 
time required to implement each of the proposed changes for a given 
institution may vary based on the size and complexity of the 
respondent. Furthermore, the burden estimate for this rulemaking does 
not include the burden of complying with proposed disclosure and timing 
requirements that apply to private educational lenders making private 
education loans as announced in a separate proposed rulemaking (Docket 
No. R-1353) or the proposed disclosure and timing requirements of the 
Board's separate notice published simultaneously with this proposal for 
open-end credit plans secured by real property.
    The Board estimates that 1,138 respondents regulated by the Federal 
Reserve would take, on average, 200 hours (five business weeks) to 
update their systems, internal procedure manuals, and provide training 
for relevant staff to comply with the proposed disclosure requirements 
in Sec. Sec.  226.38 and 226.20(d), and revisions to existing 
disclosure requirements in Sec. Sec.  226.19(b) and 226.20(c). This 
one-time revision would increase the burden by 227,600 hours. On a 
continuing basis the Board estimates that 1,138 respondents regulated 
by the Federal Reserve would take, on average, 40 hours a month to 
comply with the closed-end disclosure requirements and would increase 
the ongoing burden from 304,756 hours to 546,240 hours. To ease the 
burden and cost of complying with the new and proposed requirements 
under Regulation Z the Board proposes to revise or add several model 
forms, model clauses and sample forms to Appendix H.
    The other federal financial agencies: Office of the Comptroller of 
the Currency (OCC), Office of Thrift Supervision (OTS), the Federal 
Deposit Insurance Corporation (FDIC), and the National Credit Union 
Administration (NCUA) are responsible for estimating and reporting to 
OMB the total paperwork burden for the domestically chartered 
commercial banks, thrifts, and federal credit unions and U.S. branches 
and agencies of foreign banks for which they have primary 
administrative enforcement jurisdiction under TILA Section 108(a), 15. 
U.S.C. 1607(a). These agencies are permitted, but are not required, to 
use the Board's burden estimation methodology. Using the Board's 
method, the total current estimated annual burden for the approximately 
17,200 domestically chartered commercial banks, thrifts, and federal 
credit unions and U.S. branches and agencies of foreign banks 
supervised by the Federal Reserve, OCC, OTS, FDIC, and NCUA under TILA 
would be approximately 13,568,725 hours. The proposed rule would impose 
a one-time increase in the estimated annual burden for such 
institutions by 3,440,000 hours to 17,765,525 hours. On a continuing 
basis the proposed rule would impose an increase in the estimated 
annual burden by 8,256,000 to 21,824,725 hours. The above estimates 
represent an average across all respondents; the Board expects

[[Page 43319]]

variations between institutions based on their size, complexity, and 
practices.
    Comments are invited on: (1) Whether the proposed collection of 
information is necessary for the proper performance of the Board's 
functions; including whether the information has practical utility; (2) 
the accuracy of the Board's estimate of the burden of the proposed 
information collection, including the cost of compliance; (3) ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and (4) ways to minimize the burden of information 
collection on respondents, including through the use of automated 
collection techniques or other forms of information technology. 
Comments on the collection of information should be sent to Cynthia 
Ayouch, Acting Federal Reserve Board Clearance Officer, Division of 
Research and Statistics, Mail Stop 95-A, Board of Governors of the 
Federal Reserve System, Washington, DC 20551, with copies of such 
comments sent to the Office of Management and Budget, Paperwork 
Reduction Project (7100-0199), Washington, DC 20503.

VIII. Initial Regulatory Flexibility Analysis

    In accordance with section 3(a) of the Regulatory Flexibility Act 
(RFA), 5 U.S.C. 601-612, the Board is publishing an initial regulatory 
flexibility analysis for the proposed amendments to Regulation Z. The 
RFA requires an agency either to provide an initial regulatory 
flexibility analysis with a proposed rule or to certify that the 
proposed rule will not have a significant economic impact on a 
substantial number of small entities. Under regulations issued by the 
Small Business Administration, an entity is considered ``small'' if it 
has $175 million or less in assets for banks and other depository 
institutions; and $7 million or less in revenues for non-bank mortgage 
lenders and mortgage brokers.\93\
---------------------------------------------------------------------------

    \93\ 13 CFR 121.201.
---------------------------------------------------------------------------

    Based on its analysis and for the reasons stated below, the Board 
believes that this proposed rule will have a significant economic 
impact on a substantial number of small entities. A final regulatory 
flexibility analysis will be conducted after consideration of comments 
received during the public comment period. The Board requests public 
comment in the following areas.

A. Reasons for the Proposed Rule

    Congress enacted TILA based on findings that economic stability 
would be enhanced and competition among consumer credit providers would 
be strengthened by the informed use of credit resulting from consumers' 
awareness of the cost of credit. One of the stated purposes of TILA is 
to provide a meaningful disclosure of credit terms to enable consumers 
to compare credit terms available in the marketplace more readily and 
avoid the uninformed use of credit. In this regard, the goal of the 
proposed amendments to Regulation Z is to improve the effectiveness of 
the disclosures that creditors provide to consumers beginning before 
application and throughout the life of a closed-end mortgage 
transaction. Accordingly, the Board is proposing changes to format, 
timing, and content requirements for closed-end disclosures required by 
Regulation Z: (1) Program and other educational information provided 
before application; (2) transaction-specific disclosures provided at or 
shortly after application; (3) transaction-specific disclosures 
provided at or three business days before consummation; and notices of 
changes to the transaction's terms and regarding certain payment 
options provided during the life of the credit.
    Congress enacted HOEPA in 1994 as an amendment to TILA. TILA is 
implemented by the Board's Regulation Z. HOEPA imposed additional 
substantive protections on certain high-cost mortgage transactions. 
HOEPA also charged the Board with prohibiting acts or practices in 
connection with mortgage loans that are unfair, deceptive, or designed 
to evade the purposes of HOEPA, and acts or practices in connection 
with refinancing of mortgage loans that are associated with abusive 
lending or are otherwise not in the interest of borrowers.
    The proposed regulations would revise and enhance many of the 
closed-end disclosure requirements of Regulation Z for transactions 
secured by real property or a dwelling. The Board's proposal also would 
require TILA disclosures for closed-end mortgages to be provided to the 
consumer earlier in the loan process and would expand on the post-
consummation notification requirements concerning changes in mortgage 
terms. These amendments are proposed in furtherance of the Board's 
responsibility to prescribe regulations to carry out the purposes of 
TILA, including promoting consumers' awareness of the cost of credit 
and their informed use thereof. Finally, the proposal would restrict 
certain loan originator compensation practices for closed-end mortgage 
loans to address problems that have been observed in the mortgage 
market. These restrictions are proposed pursuant to the Board's 
statutory responsibility to prohibit unfair and deceptive acts and 
practices in connection with mortgage loans.

B. Statement of Objectives and Legal Basis

    The SUPPLEMENTARY INFORMATION contains this information. In 
summary, the proposed amendments to Regulation Z are designed to 
achieve three goals: (1) Revise the disclosures required for closed-end 
mortgage loans; (2) restrict certain loan originator compensation 
practices for mortgage loans; and (3) require disclosures for closed-
end mortgage loans to be provided earlier in the transaction and 
additional post-consummation disclosures for certain changes in terms.
    The legal basis for the proposed rule is in Sections 105(a), 
105(f), and 129(l)(2) of TILA. 15 U.S.C. 1604(a), 1604(f), and 
1639(l)(2). A more detailed discussion of the Board's rulemaking 
authority is set forth in part IV of the SUPPLEMENTARY INFORMATION.

C. Description of Small Entities to Which the Proposed Rule Would Apply

    The proposed regulations would apply to all institutions and 
entities that engage in originating or extending closed-end, home-
secured credit. The Board is not aware of a reliable source for the 
total number of small entities likely to be affected by the proposal, 
and the credit provisions of TILA and Regulation Z have broad 
applicability to individuals and businesses that originate, extend and 
service even small numbers of home-secured credit. See Sec.  
226.1(c)(1).\94\ All small entities that originate, extend, or service 
closed-end loans secured by real property or a dwelling potentially 
could be subject to at least some aspects of the proposed rule.
---------------------------------------------------------------------------

    \94\ Regulation Z generally applies to ``each individual or 
business that offers or extends credit when four conditions are met: 
(i) The credit is offered or extended to consumers; (ii) the 
offering or extension of credit is done regularly, (iii) the credit 
is subject to a finance charge or is payable by a written agreement 
in more than four installments, and (iv) the credit is primarily for 
personal, family, or household purposes.'' Sec.  226.1(c)(1).
---------------------------------------------------------------------------

    The Board can, however, identify through data from Reports of 
Condition and Income (``call reports'') approximate numbers of small 
depository institutions that would be subject to the proposed rules. 
Based on December 2008 call report data, approximately 9,418 small 
institutions would be subject to the proposed rule. Approximately 
16,345 depository institutions in the United States filed call report 
data, approximately 11,907 of which had total

[[Page 43320]]

domestic assets of $175 million or less and thus were considered small 
entities for purposes of the Regulatory Flexibility Act. Of 4,231 
banks, 565 thrifts and 7,111 credit unions that filed call report data 
and were considered small entities, 4,091 banks, 530 thrifts, and 4,797 
credit unions, totaling 9,418 institutions, extended mortgage credit. 
For purposes of this analysis, thrifts include savings banks, savings 
and loan entities, co-operative banks and industrial banks.
    The Board cannot identify with certainty the number of small non-
depository institutions that would be subject to the proposed rule. 
Home Mortgage Disclosure Act (HMDA) \95\ data indicate that 1,752 non-
depository institutions filed HMDA reports in 2007.\96\ Based on the 
small volume of lending activity reported by these institutions, most 
are likely to be small.
---------------------------------------------------------------------------

    \95\ The 8,610 lenders (both depository institutions and 
mortgage companies) covered by HMDA in 2007 accounted for an 
estimated 80% of all home lending in the United States (2008 HMDA 
data are not yet available). Under HMDA, lenders use a ``loan/
application register'' (HMDA/LAR) to report information annually to 
their Federal supervisory agencies for each application and loan 
acted on during the calendar year. Lenders must make their HMDA/LARs 
available to the public by March 31 following the year to which the 
data relate, and they must remove the two date-related fields to 
help preserve applicants' privacy. Only lenders that have offices 
(or, for non-depository institutions, are deemed to have offices) in 
metropolitan areas are required to report under HMDA. However, if a 
lender is required to report, it must report information on all of 
its home loan applications and loans in all locations, including 
non-metropolitan areas.
    \96\ The 2007 HMDA Data, http://www.federalreserve.gov/pubs/bulletin/2008/articles/hmda/default.htm.
---------------------------------------------------------------------------

    The proposal's restrictions on compensation of loan originators 
would apply to mortgage brokers. Loan originators other than mortgage 
brokers that would be affected by the proposal are employees of 
creditors (or of brokers) and, as such, are not business entities in 
their own right. In its 2008 proposed rule under HOEPA, 73 FR 1672, 
1720; Jan. 9, 2008, the Board noted that, according to the National 
Association of Mortgage Brokers (NAMB), in 2004 there were 53,000 
mortgage brokerage companies that employed an estimated 418,700 
people.\97\ The Board estimated that most of these companies are small 
entities. On the other hand, the U.S. Census Bureau's 2002 Economic 
Census indicates that there were only 17,041 ``mortgage and nonmortgage 
loan brokers'' in the United States at that time.\98\
---------------------------------------------------------------------------

    \97\  http://www.namb.org/namb/Industry_Facts.asp?SnID=719224934. This page of the NAMB Web site, however, 
no longer provides an estimate of the number of mortgage brokerage 
companies.
    \98\ http://www.census.gov/prod/ec02/ec0252a1us.pdf (NAICS code 
522310). Data on this industry sector are not yet available from the 
2007 Economic Census.
---------------------------------------------------------------------------

D. Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    The compliance requirements of the proposed rules are described in 
parts V and VI of the SUPPLEMENTARY INFORMATION. The effect of the 
proposed revisions to Regulation Z on small entities is unknown. Some 
small entities would be required, among other things, to modify their 
home-secured credit disclosures and processes for delivery thereof to 
comply with the revised rules. The precise costs to small entities of 
updating their systems and disclosures are difficult to predict. These 
costs will depend on a number of unknown factors, including, among 
other things, the specifications of the current systems used by such 
entities to prepare and provide disclosures and to administer and 
maintain accounts, the complexity of the terms of credit products that 
they offer, and the range of such product offerings.
    Additionally, the proposed rules could affect how loan originators 
are compensated and would impose certain related recordkeeping 
requirements on creditors. The precise costs that the proposed rule 
would impose on mortgage creditors and loan originators are also 
difficult to ascertain. Nevertheless, the Board believes that these 
costs will have a significant economic effect on small entities, 
including small mortgage creditors and brokers. The Board seeks 
information and comment on any costs, compliance requirements, or 
changes in operating procedures arising from the application of the 
proposed rule to small businesses.

E. Identification of Duplicative, Overlapping, or Conflicting Federal 
Rules

Other Federal Rules
    The Board has not identified any federal rules that conflict with 
the proposed revisions to Regulation Z.
Overlap With SAFE Act
    The proposed rule's required disclosure contents for closed-end 
mortgage transactions would overlap with the Secure and Fair 
Enforcement for Mortgage Licensing Act of 2008 (SAFE Act) by requiring 
that the disclosure include the loan originator's unique identifier, as 
defined by that Act, if applicable.
Overlap With RESPA
    Certain terms defined in the proposed rule, such as ``total 
settlement charges'' cross-reference definitions under the U.S. 
Department of Housing and Urban Development's (HUD's) Regulation X 
under the Real Estate Settlement Procedures Act (RESPA). The proposed 
rule also would modify the existing prerequisites for use of the RESPA 
good faith estimate of settlement costs and HUD-1 settlement statement 
in lieu of the itemization of the amount financed under Regulation Z.
Overlap With HUD's Guidance
    The Board recognizes that HUD has issued policy statements 
regarding creditor payments to mortgage brokers under RESPA and 
guidance as to disclosure of such payments on the Good Faith Estimate 
and HUD-1 Settlement Statement. HUD also has published revised 
disclosures for broker compensation under RESPA to become effective 
January 1, 2010. The Board intends that its proposal would complement 
HUD's final rule. The proposed provision regarding creditor payments to 
loan originators is intended to be consistent with HUD's existing 
guidance regarding broker compensation under Section 8 of RESPA. The 
proposed provision regarding record retention to evidence compliance 
with the provision regarding creditor payments to loan originators 
would cross-reference the HUD-1 settlement statement as an acceptable 
record of such compensation paid in a given transaction.

F. Identification of Duplicative, Overlapping, or Conflicting State 
Laws

State Laws Regulating Creditor Payments to Loan Originators
    The Board is aware that many states regulate loan originators, 
especially mortgage brokers, and their compensation in various 
respects. Under TILA Section 111, the proposed rule would not preempt 
such State laws except to the extent they are inconsistent with the 
proposal's requirements. 15 U.S.C. 1610.
State Equivalents to TILA and HOEPA
    Many states regulate consumer credit through statutory disclosure 
schemes similar to TILA. Similarly to State laws regulating loan 
originator compensation, such state disclosure laws would be preempted 
only to the extent they are inconsistent with the proposal's 
requirements. Id.
    The Board also is aware that many states regulate ``high-cost'' or 
``high-priced'' mortgage loans, under laws that

[[Page 43321]]

resemble HOEPA. Many such State laws set their coverage tests in part 
on the APR of the transaction. The proposed rule would overlap with 
these laws indirectly by virtue of the proposal to modify the 
definition of the finance charge for closed-end mortgage transactions, 
which would result in APRs being higher generally and potentially more 
loans being covered under such State laws.
    The Board seeks comment regarding any State or local statutes or 
regulations that would duplicate, overlap, or conflict with the 
proposed rule.

G. Discussion of Significant Alternatives

    The Board considered whether improved disclosures could protect 
consumers against unfair loan originator compensation practices for 
mortgages as well as the proposed rule. While the Board is proposing 
improvements to mortgage loan disclosures, it does not appear that 
better disclosures would address loan originator compensation practices 
adequately.
    The Board welcomes comments on any significant alternatives, 
consistent with the requirements of TILA, that would minimize the 
impact of the proposed rule on small entities.

List of Subjects in 12 CFR Part 226

    Advertising, Consumer protection, Federal Reserve System, 
Mortgages, Reporting and recordkeeping requirements, Truth in lending.

Text of Proposed Revisions

    Certain conventions have been used to highlight the proposed 
revisions. New language is shown inside bold arrows, and language that 
would be deleted is shown inside bold brackets.

Authority and Issuance

    For the reasons set forth in the preamble, the Board proposes to 
amend Regulation Z, 12 CFR part 226, as set forth below:

PART 226--TRUTH IN LENDING (REGULATION Z)

    1. The authority citation for part 226 continues to read as 
follows:

    Authority:  12 U.S.C. 3806; 15 U.S.C. 1604, 1637(c)(5), and 
1639(l); Public Law 111-24 Sec.  2, 123 Stat. 1734.

Subpart A--General

    2. Section 226.1, as amended on January 29, 2009 (74 FR 5397) is 
amended by revising paragraphs (b) and (d)(5) to read as follows:


Sec.  226.1  Authority, purpose, coverage, organization, enforcement 
and liability.

* * * * *
    (b) Purpose. The purpose of this regulation is to promote the 
informed use of consumer credit by requiring disclosures about its 
terms and cost. The regulation also gives consumers the right to cancel 
certain credit transactions that involve a lien on a consumer's 
principal dwelling, regulates certain credit card practices, and 
provides a means for fair and timely resolution of credit billing 
disputes. The regulation does not govern charges for consumer credit. 
The regulation requires a maximum interest rate to be stated in 
variable-rate contracts secured by the consumer's dwelling. It also 
imposes limitations on home-equity plans that are subject to the 
requirements of Sec.  226.5b and mortgages that are subject to the 
requirements of Sec.  226.32. The regulation prohibits certain acts or 
practices in connection with credit secured by [rtrif]real property 
or[ltrif] a consumer's [principal] dwelling [rtrif]in Sec.  226.36, and 
credit secured by a consumer's principal dwelling in Sec.  
226.35.[ltrif]
* * * * *
    (d) * * *
    (5) Subpart E contains special rules for mortgage transactions. 
Section 226.32 requires certain disclosures and provides limitations 
for [rtrif]closed-end[ltrif] loans that have rates and fees above 
specified amounts. Section 226.33 requires disclosures, including the 
total annual loan cost rate, for reverse mortgage transactions. Section 
226.34 prohibits specific acts and practices in connection with 
[rtrif]closed-end[ltrif] mortgage transactions that are subject to 
Sec.  226.32. Section 226.35 prohibits specific acts and practices in 
connection with [rtrif]closed-end[ltrif] higher-priced mortgage loans, 
as defined in Sec.  226.35(a). Section 226.36 prohibits specific acts 
and practices in connection with [rtrif]extensions of[ltrif] credit 
secured by [rtrif]real property or[ltrif] a consumer's [principal] 
dwelling. [rtrif]Section 226.37 provides general disclosure 
requirements for closed-end extensions of credit secured by real 
property or a consumer's dwelling. Section 38 provides the content of 
disclosures for closed-end extensions of credit secured by real 
property or a consumer's dwelling.[ltrif]
* * * * *
    3. Section 226.4, as amended on January 29, 2009 (74 FR 5399) is 
revised to read as follows:


Sec.  226.4  Finance charge.

    (a) Definition. The finance charge is the cost of consumer credit 
as a dollar amount. It includes any charge payable directly or 
indirectly by the consumer and imposed directly or indirectly by the 
creditor as an incident to or a condition of the extension of credit. 
It does not include any charge of a type payable in a comparable cash 
transaction.
    (1) Charges by third parties. The finance charge includes fees and 
amounts charged by someone other than the creditor, unless otherwise 
excluded under this section, if the creditor:
    (i) Requires the use of a third party as a condition of or an 
incident to the extension of credit, even if the consumer can choose 
the third party; or
    (ii) Retains a portion of the third-party charge, to the extent of 
the portion retained.
    (2) Special rule; closing agent charges. [rtrif]Except as provided 
in Sec.  226.4(g), fees[ltrif] [Fees] charged by a third party that 
conducts the loan closing (such as a settlement agent, attorney, or 
escrow or title company) are finance charges only if the creditor:
    (i) Requires the particular services for which the consumer is 
charged;
    (ii) Requires the imposition of the charge; or
    (iii) Retains a portion of the third-party charge, to the extent of 
the portion retained.
    (3) Special rule; mortgage broker fees. Fees charged by a mortgage 
broker (including fees paid by the consumer directly to the broker or 
to the creditor for delivery to the broker) are finance charges even if 
the creditor does not require the consumer to use a mortgage broker and 
even if the creditor does not retain any portion of the charge.
    (b) Examples of finance charge. The finance charge includes the 
following types of charges, except for charges specifically excluded by 
paragraphs (c) through (e) of this section:
    (1) Interest, time price differential, and any amount payable under 
an add-on or discount system of additional charges.
    (2) Service, transaction, activity, and carrying charges, including 
any charge imposed on a checking or other transaction account to the 
extent that the charge exceeds the charge for a similar account without 
a credit feature.
    (3) Points, loan fees, assumption fees, finder's fees, and similar 
charges.
    (4) Appraisal, investigation, and credit report fees.
    (5) Premiums or other charges for any guarantee or insurance 
protecting the creditor against the consumer's default or other credit 
loss.
    (6) Charges imposed on a creditor by another person for purchasing 
or accepting a consumer's obligation, if the consumer is required to 
pay the charges in cash, as an addition to the obligation,

[[Page 43322]]

or as a deduction from the proceeds of the obligation.
    (7) Premiums or other charges for credit life, accident, health, or 
loss-of-income insurance, written in connection with a credit 
transaction.
    (8) Premiums or other charges for insurance against loss of or 
damage to property, or against liability arising out of the ownership 
or use of property, written in connection with a credit transaction.
    (9) Discounts for the purpose of inducing payment by a means other 
than the use of credit.
    (10) Charges or premiums paid for debt cancellation or debt 
suspension coverage written in connection with a credit transaction, 
whether or not the debt cancellation coverage is insurance under 
applicable law.
    (c) Charges excluded from the finance charge. [rtrif]Except as 
provided in Sec.  226.4(g), the[ltrif] [The] following charges are not 
finance charges:
    (1) Application fees charged to all applicants for credit, whether 
or not credit is actually extended.
    (2) Charges for actual unanticipated late payment, for exceeding a 
credit limit, or for delinquency, default, or a similar occurrence.
    (3) Charges imposed by a financial institution for paying items 
that overdraw an account, unless the payment of such items and the 
imposition of the charge were previously agreed upon in writing.
    (4) Fees charged for participation in a credit plan, whether 
assessed on an annual or other periodic basis.
    (5) Seller's points.
    (6) Interest forfeited as a result of an interest reduction 
required by law on a time deposit used as security for an extension of 
credit.
    (7) Real-estate related fees. The following fees in [rtrif]an open-
end credit plan[ltrif] [a transaction] secured by real property or in 
[rtrif]an open-end[ltrif] [a] residential mortgage transaction, if the 
fees are bona fide and reasonable in amount:
    (i) Fees for title examination, abstract of title, title insurance, 
property survey, and similar purposes.
    (ii) Fees for preparing loan-related documents, such as deeds, 
mortgages, and reconveyance or settlement documents.
    (iii) Notary and credit report fees.
    (iv) Property appraisal fees or fees for inspections to assess the 
value or condition of the property if the service is performed prior to 
closing, including fees related to pest infestation or flood hazard 
determinations.
    (v) Amounts required to be paid into escrow or trustee accounts if 
the amounts would not otherwise be included in the finance charge.
    (8) Discounts offered to induce payment for a purchase by cash, 
check, or other means, as provided in section 167(b) of the Act.
    (d) Insurance and debt cancellation and debt suspension coverage. 
(1) Voluntary credit insurance premiums. [rtrif]Except as provided in 
Sec.  226.4(g), premiums[ltrif] [Premiums] for credit life, accident, 
health, or loss-of-income insurance may be excluded from the finance 
charge if the following conditions are met:
    (i) The insurance coverage is not required by the creditor, and 
this fact is disclosed in writing.
    (ii) The premium for the initial term of insurance coverage is 
disclosed in writing. If the term of insurance is less than the term of 
the transaction, the term of insurance also shall be disclosed. The 
premium may be disclosed on a unit-cost basis only in open-end credit 
transactions, closed-end credit transactions by mail or telephone under 
Sec.  226.17(g), and certain closed-end credit transactions involving 
an insurance plan that limits the total amount of indebtedness subject 
to coverage.
    (iii) The consumer signs or initials an affirmative written request 
for the insurance after receiving the disclosures specified in this 
paragraph, except as provided in paragraph (d)(4) of this section. Any 
consumer in the transaction may sign or initial the request.
    [rtrif](iv) The creditor determines at the time of enrollment that 
the consumer meets any applicable age or employment eligibility 
criteria for insurance coverage.[ltrif]
    (2) Property insurance premiums. Premiums for insurance against 
loss of or damage to property, or against liability arising out of the 
ownership or use of property, including single interest insurance if 
the insurer waives all right of subrogation against the consumer,\5\ 
may be excluded from the finance charge if the following conditions are 
met:
---------------------------------------------------------------------------

    \5\ [Reserved].
---------------------------------------------------------------------------

    (i) The insurance coverage may be obtained from a person of the 
consumer's choice,\6\ and this fact is disclosed. (A creditor may 
reserve the right to refuse to accept, for reasonable cause, an insurer 
offered by the consumer.)
---------------------------------------------------------------------------

    \6\ [Reserved].
---------------------------------------------------------------------------

    (ii) If the coverage is obtained from or through the creditor, the 
premium for the initial term of insurance coverage shall be disclosed. 
If the term of insurance is less than the term of the transaction, the 
term of insurance shall also be disclosed. The premium may be disclosed 
on a unit-cost basis only in open-end credit transactions, closed-end 
credit transactions by mail or telephone under Sec.  226.17(g), and 
certain closed-end credit transactions involving an insurance plan that 
limits the total amount of indebtedness subject to coverage.
    (3) Voluntary debt cancellation or debt suspension fees. 
[rtrif]Except as provided in Sec.  226.4(g), charges[ltrif] [Charges] 
or premiums paid for debt cancellation coverage for amounts exceeding 
the value of the collateral securing the obligation or for debt 
cancellation or debt suspension coverage in the event of the loss of 
life, health, or income or in case of accident may be excluded from the 
finance charge, whether or not the coverage is insurance, if the 
following conditions are met:
    (i) The debt cancellation or debt suspension agreement or coverage 
is not required by the creditor, and this fact is disclosed in writing.
    (ii) The fee or premium for the initial term of coverage is 
disclosed in writing. If the term of coverage is less than the term of 
the credit transaction, the term of coverage also shall be disclosed. 
The fee or premium may be disclosed on a unit-cost basis only in open-
end credit transactions, closed-end credit transactions by mail or 
telephone under Sec.  226.17(g), and certain closed-end credit 
transactions involving a debt cancellation agreement that limits the 
total amount of indebtedness subject to coverage.
    (iii) The following are disclosed, as applicable, for debt 
suspension coverage: That the obligation to pay loan principal and 
interest is only suspended, and that interest will continue to accrue 
during the period of suspension.
    (iv) The consumer signs or initials an affirmative written request 
for coverage after receiving the disclosures specified in this 
paragraph, except as provided in paragraph (d)(4) of this section. Any 
consumer in the transaction may sign or initial the request.
    [rtrif](v) The creditor determines at the time of enrollment that 
the consumer meets any applicable age or employment eligibility 
criteria for the debt cancellation or debt suspension agreement or 
coverage.[ltrif]
    (4) Telephone purchases. If a consumer purchases credit insurance 
or debt cancellation or debt suspension coverage for an open-end [(not 
home-secured)] plan by telephone, the creditor must make the 
disclosures under

[[Page 43323]]

paragraphs (d)(1)(i) and (ii) or (d)(3)(i) through (iii) of this 
section, as applicable, orally. In such a case, the creditor shall:
    (i) Maintain evidence that the consumer, after being provided the 
disclosures orally, affirmatively elected to purchase the insurance or 
coverage; and
    (ii) Mail the disclosures under paragraphs (d)(1)(i) and (ii) or 
(d)(3)(i) through (iii) of this section, as applicable, within three 
business days after the telephone purchase.
    (e) Certain security interest charges. [rtrif]Except as provided in 
Sec.  226.4(g), if[ltrif] [If] itemized and disclosed, the following 
charges may be excluded from the finance charge:
    (1) Taxes and fees prescribed by law that actually are or will be 
paid to public officials for determining the existence of or for 
perfecting, releasing, or satisfying a security interest.
    (2) The premium for insurance in lieu of perfecting a security 
interest to the extent that the premium does not exceed the fees 
described in paragraph (e)(1) of this section that otherwise would be 
payable.
    (3) Taxes on security instruments. Any tax levied on security 
instruments or on documents evidencing indebtedness if the payment of 
such taxes is a requirement for recording the instrument securing the 
evidence of indebtedness.
    (f) Prohibited offsets. Interest, dividends, or other income 
received or to be received by the consumer on deposits or investments 
shall not be deducted in computing the finance charge.
    [rtrif](g) Special rule; closed-end mortgage transactions. 
Paragraphs (a)(2) and (c) through (e) of this section, other than 
Sec. Sec.  226.4(c)(2), 226.4(c)(5) and 226.4(d)(2), do not apply to 
closed-end transactions secured by real property or a dwelling.[ltrif]

Subpart C--Closed-End Credit

    4. Section 226.17 is revised to read as follows:


Sec.  226.17  General disclosure requirements.

    (a) Form of disclosures. (1) The creditor shall make the 
disclosures required by this subpart clearly and conspicuously in 
writing, in a form that the consumer may keep. [rtrif]In addition, 
transactions secured by real property or a dwelling are subject to the 
requirements under Sec.  226.37.[ltrif] The disclosures required by 
this subpart may be provided to the consumer in electronic form, 
subject to compliance with the consumer-consent and other applicable 
provisions of the Electronic Signatures in Global and National Commerce 
Act (E-Sign Act) (15 U.S.C. 7001 et seq.). [rtrif]For transactions 
secured by real property or a dwelling, disclosures required by Sec.  
226.19(b) or (c) must be provided in electronic form in specified 
circumstances.[ltrif] The disclosures required by Sec. Sec.  226.17(g), 
226.19(b),[rtrif] 226.19(c),[ltrif] and 226.24 may be provided to the 
consumer in electronic form without regard to the consumer consent or 
other provisions of the E-Sign Act in the circumstances set forth in 
those sections. The disclosures [rtrif]required by Sec.  226.18 or 
Sec.  226.38[ltrif] shall be grouped together, shall be segregated from 
everything else, and shall not contain any information not directly 
related \37\ to the disclosures required under Sec.  226.18 
\38\[rtrif]or Sec.  226.38; however, the disclosures may include an 
acknowledgement of receipt, the date of the transaction, and the 
consumer's name, address, and account number. The following disclosures 
may be made together with or separately from other required 
disclosures: the variable-rate example under Sec.  226.18(f)(4), 
insurance, debt cancellation, or debt suspension under Sec.  226.18(n), 
and certain security interest charges under Sec.  226.18(o)[ltrif]. The 
itemization of the amount financed under Sec.  226.18(c)(1) must be 
separate from the other disclosures under that section.
---------------------------------------------------------------------------

    \37\ [rtrif][Reserved][ltrif][The disclosures may include an 
acknowledgment of receipt, the date of the transaction, and the 
consumer's name, address, and account number.]
    \38\ [rtrif][Reserved][ltrif][The following disclosures may be 
made together with or separately from other required disclosures: 
the creditor's identity under Sec.  226.18(a), the variable-rate 
example under Sec.  226.18(f)(1)(iv), insurance or debt cancellation 
under Sec.  226.18(n), and certain security interest charges under 
Sec.  226.18(o).]
---------------------------------------------------------------------------

    (2)[rtrif]Except for transactions secured by real property or a 
dwelling subject to Sec.  226.38, t[ltrif][T]he terms finance charge 
and annual percentage rate, when required to be disclosed under Sec.  
226.18(d) and (e) together with a corresponding amount or percentage 
rate, shall be more conspicuous than any other disclosure, except the 
creditor's identity under Sec.  226.18(a).
    (b) Time of disclosures. The creditor shall make disclosures before 
consummation of the transaction. [In certain mortgage transactions, 
special timing requirements are set forth in Sec.  226.19(a). In 
certain variable-rate transactions, special timing requirements for 
variable-rate disclosures are set forth in Sec.  226.19(b) and Sec.  
226.20(c).] [rtrif]Special disclosure timing requirements for 
transactions secured by real property or a dwelling are set forth in 
Sec.  226.19(a). Additional disclosure timing requirements for 
adjustable-rate transactions secured by real property or a dwelling are 
set forth in Sec.  226.19(b) and Sec.  226.20(c).[ltrif] In certain 
transactions involving mail or telephone orders or a series of sales, 
the timing of disclosures may be delayed in accordance with paragraphs 
(g) and (h) of this section.
    (c) Basis of disclosures and use of estimates. (1) [rtrif]Legal 
obligation.[ltrif] The disclosures [rtrif]required by this 
subpart[ltrif] shall reflect the terms of the legal obligation between 
the parties.
    [rtrif](i) Buydowns. The creditor shall disclose an annual 
percentage rate that is a composite rate based on the interest rate in 
effect during the initial period of the term of the loan and the 
interest rate in effect for the remainder of the term, if the 
consumer's interest rate or payments are reduced for all or part of the 
loan term based on payments made by:
    (A) The seller or another third party, if the legal obligation 
reflects such an arrangement; or
    (B) The consumer.
    (ii) Wrap-around financing. If a transaction involves combining the 
outstanding balance on an existing loan with additional funds advanced 
to a consumer without paying off the outstanding balance, the amount 
financed shall equal the sum of the outstanding balance and the new 
funds advanced.
    (iii) Variable- or adjustable-rate transactions. The creditor shall 
base disclosures for a variable- or adjustable-rate transaction on the 
full term of the transaction. Except as otherwise provided in Sec.  
226.38(a)(3) and (c) for adjustable-rate mortgage transactions secured 
by real property or a dwelling:
    (A) If the initial interest rate for a transaction with a variable 
or adjustable rate is determined using the index or formula used to 
adjust the interest rate, the disclosures shall reflect the terms in 
effect at the time of consummation.
    (B) If the initial interest rate for a transaction with a variable 
or adjustable rate is not determined using the index or formula used to 
adjust the interest rate, the disclosures shall reflect a composite 
annual percentage rate based on the initial rate for the time it is in 
effect and, for the remainder of the term, the rate that would have 
applied if such index or formula had been used at the time of 
consummation.
    (iv) Repayment upon occurrence of future event. If disbursements 
for a transaction secured by real property or a dwelling are made 
during a specified period but repayment is required only upon the 
occurrence of a future event, the creditor shall base disclosures on

[[Page 43324]]

the assumption that repayment will occur when disbursements end.
    (v) Tax refund-anticipation loans. For a tax refund-anticipation 
loan, the creditor shall estimate the time a tax refund will be 
delivered to the consumer and shall include in the finance charge any 
repayment amount that exceeds the loan amount that is not otherwise 
excluded from the finance charge under Sec.  226.4.
    (vi) Pawn transactions. For a pawn transaction, the creditor shall 
disclose:
    (A) The initial sum paid to the consumer as the amount financed;
    (B) A finance charge that includes the difference between the 
initial sum paid to the consumer and the price at which the item is 
pledged or sold; and
    (C) The annual percentage rate is determined using the earliest 
date on which the item pledged or sold may be redeemed as the end of 
the loan term.[ltrif]
    (2)[rtrif]Estimates.[ltrif] (i) [rtrif]Reasonably available 
information.[ltrif] If any information necessary for an accurate 
disclosure is unknown to the creditor, the creditor shall make the 
disclosure based on the best information reasonably available at the 
time the disclosure is provided to the consumer[,] and shall state 
clearly that the disclosure is an estimate[rtrif](except that Sec.  
226.19(a) limits the circumstances in which creditors may provide 
estimated disclosures, for mortgage transactions secured by real 
property or a dwelling)[ltrif].
    (ii)[rtrif]Per-diem interest.[ltrif] For a transaction in which a 
portion of the interest is determined on a per-diem basis and collected 
at consummation, any disclosure affected by the per-diem interest shall 
be considered accurate if the disclosure is based on the information 
known to the creditor at the time that the disclosure documents are 
prepared for consummation of the transaction.
    (3)[rtrif]Disregarded effects.[ltrif] The creditor may disregard 
the effects of the following in making calculations and disclosures:
    (i) That payments must be collected in whole cents.
    (ii) That dates of scheduled payments and advances may be changed 
because the scheduled date is not a business day.
    (iii) That months have different numbers of days.
    (iv) The occurrence of leap year.
    (4)[rtrif]Disregarded irregularities.[ltrif] In making calculations 
and disclosures, the creditor may disregard any irregularity in the 
first period that falls within the limits described below and any 
[payment schedule] irregularity [rtrif]in the payment schedule, in a 
transaction not secured by real property or a dwelling, or payment 
summary, in a transaction secured by real property or a 
dwelling,[ltrif] that results from the irregular first period:
    (i) For transactions in which the term is less than 1 year, a first 
period not more than 6 days shorter or 13 days longer than a regular 
period;
    (ii) For transactions in which the term is at least 1 year and less 
than 10 years, a first period not more than 11 days shorter or 21 days 
longer than a regular period; and
    (iii) For transactions in which the term is at least 10 years, a 
first period shorter than or not more than 32 days longer than a 
regular period.
    (5)[rtrif]Demand obligations.[ltrif] If an obligation is payable on 
demand, the creditor shall make the disclosures based on an assumed 
maturity of 1 year. If an alternate maturity date is stated in the 
legal obligation between the parties, the disclosures shall be based on 
that date.
    (6) Multiple advance loans. (i)[rtrif]Series of advances.[ltrif] A 
series of advances under an agreement to extend credit up to a certain 
amount may be considered as one transaction.
    (ii)[rtrif]Multiple-advance construction loan.[ltrif] When a 
multiple-advance loan to finance the construction of a dwelling may be 
permanently financed by the same creditor, the construction phase and 
the permanent phase may be treated as either one transaction or more 
than one transaction.
    (d) Multiple creditors; multiple consumers. If a transaction 
involves more than one creditor, only one set of disclosures shall be 
given and the creditors shall agree among themselves which creditor 
must comply with the requirements that this regulation imposes on any 
or all of them. If there is more than one consumer, the disclosures may 
be made to any consumer who is primarily liable on the obligation. If 
the transaction is rescindable under Sec.  226.23, however, the 
disclosures shall be made to each consumer who has the right to 
rescind.
    (e) Effect of subsequent events. If a disclosure becomes inaccurate 
because of an event that occurs after the creditor delivers the 
required disclosures, the inaccuracy is not a violation of this 
regulation, although new disclosures may be required under paragraph 
(f) of this section, Sec.  226.19, or Sec.  226.20.
    (f) Early disclosures. If disclosures required by this subpart are 
given before the date of consummation of a transaction and a subsequent 
event makes them inaccurate, the creditor shall disclose before 
consummation ([subject to the provisions of][rtrif]except that 
additional timing requirements apply under[ltrif] Sec.  226.19(a)(2) 
and [rtrif]alternative timing requirements apply under[ltrif] Sec.  
226.19(a)[(5)][rtrif](4)[ltrif](iii)): \39\
---------------------------------------------------------------------------

    \39\ [Reserved.]
---------------------------------------------------------------------------

    (1) Any changed term unless the term was based on an estimate in 
accordance with Sec.  226.17(c)(2) and was labelled an estimate;
    (2) All changed terms, if the annual percentage rate at the time of 
consummation varies from the annual percentage rate disclosed earlier 
by more than \1/8\ of 1 percentage point in a regular transaction, or 
more than \1/4\ of 1 percentage point in an irregular transaction, as 
defined in Sec.  226.22(a).
    (g) Mail or telephone orders--delay in disclosures. [rtrif]Except 
for transactions secured by real property or a dwelling subject to 
Sec.  226.38, i[ltrif][I]f a creditor receives a purchase order or a 
request for an extension of credit by mail, telephone, or facsimile 
machine without face-to-face or direct telephone solicitation, the 
creditor may delay the disclosures until the due date of the first 
payment, if the following information for representative amounts or 
ranges of credit is made available in written form or in electronic 
form to the consumer or to the public before the actual purchase order 
or request:
    (1) The cash price or the principal loan amount.
    (2) The total sale price.
    (3) The finance charge.
    (4) The annual percentage rate, and if the rate may increase after 
consummation, the following disclosures:
    (i) The circumstances under which the rate may increase.
    (ii) Any limitations on the increase.
    (iii) The effect of an increase.
    (5) The terms of repayment.
    (h) Series of sales--delay in disclosures. If a credit sale is one 
of a series made under an agreement providing that subsequent sales may 
be added to an outstanding balance, the creditor may delay the required 
disclosures until the due date of the first payment for the current 
sale, if the following two conditions are met:
    (1) The consumer has approved in writing the annual percentage rate 
or rates, the range of balances to which they apply, and the method of 
treating any unearned finance charge on an existing balance.
    (2) The creditor retains no security interest in any property after 
the creditor has received payments equal to the cash price and any 
finance charge attributable to the sale of that property. For purposes 
of this provision, in the case of items purchased on different

[[Page 43325]]

dates, the first purchased is deemed the first item paid for; in the 
case of items purchased on the same date, the lowest priced is deemed 
the first item paid for.
    (i) Interim student credit extensions. For each transaction 
involving an interim credit extension under a student credit program, 
the creditor need not make the following disclosures: the finance 
charge under Sec.  226.18(d), the payment schedule under Sec.  
226.18(g), the total of payments under Sec.  226.18(h), or the total 
sale price under Sec.  226.18(j).
    5. Section 226.18 is revised to read as follows:


Sec.  226.18  General disclosure requirements.

    For each transaction, the creditor shall disclose the following 
information as applicable[rtrif], except that for each transaction 
secured by real property or a dwelling, the creditor shall make the 
disclosures required by Sec.  226.38[ltrif]:
    (a) Creditor. The identity of the creditor making the disclosures.
    (b) Amount financed. The amount financed, using that term, and a 
brief description such as the amount of credit provided to you or on 
your behalf. The amount financed is calculated by:
    (1) Determining the principal loan amount or the cash price 
(subtracting any downpayment);
    (2) Adding any other amounts that are financed by the creditor and 
are not part of the finance charge; and
    (3) Subtracting any prepaid finance charge.
    (c) Itemization of amount financed. (1) A separate written 
itemization of the amount financed, including: \40\
---------------------------------------------------------------------------

    \40\ [rtrif][Reserved][ltrif][Good faith estimates of settlement 
costs provided for transactions subject to the Real Estate 
Settlement Procedures Act (12 U.S.C. 2601 et seq.) may be 
substituted for the disclosures required by paragraph (c) of this 
section.]
---------------------------------------------------------------------------

    (i) The amount of any proceeds distributed directly to the 
consumer.
    (ii) The amount credited to the consumer's account with the 
creditor.
    (iii) Any amounts paid to other persons by the creditor on the 
consumer's behalf. The creditor shall identify those 
persons[rtrif],[ltrif][.]\41\ [rtrif]except that the following payees 
may be described using generic or other general terms and need not be 
further identified: public officials or government agencies, credit 
reporting agencies, appraisers, and insurance companies.[ltrif]
---------------------------------------------------------------------------

    \41\ [rtrif][Reserved][ltrif][The following payees may be 
described using generic or other general terms and need not be 
further identified: public officials or government agencies, credit 
reporting agencies, appraisers, and insurance companies.]
---------------------------------------------------------------------------

    (iv) The prepaid finance charge.
    (2) The creditor need not comply with paragraph (c)(1) of this 
section if the creditor provides a statement that the consumer has the 
right to receive a written itemization of the amount financed, together 
with a space for the consumer to indicate whether it is desired, and 
the consumer does not request it.
    (d) Finance charge. The finance charge, using that term, and a 
brief description such as ``the dollar amount the credit will cost 
you.''
    [(1) Mortgage loans. In a transaction secured by real property or a 
dwelling, the disclosed finance charge and other disclosures affected 
by the disclosed finance charge (including the amount financed and the 
annual percentage rate) shall be treated as accurate if the amount 
disclosed as the finance charge--
    (i) Is understated by no more than $100; or
    (ii) Is greater than the amount required to be disclosed.
    (2) Other credit. In any other transaction, the][rtrif]The[ltrif] 
amount disclosed as the finance charge shall be treated as accurate 
if[,][rtrif]:
    (1)[ltrif]In a transaction involving an amount financed of $1,000 
or less, it is not more than $5 above or below the amount required to 
be disclosed; or[,]
    [rtrif](2)[ltrif] In a transaction involving an amount financed of 
more than $1,000, it is not more than $10 above or below the amount 
required to be disclosed.
    (e) Annual percentage rate. The annual percentage rate, using that 
term, and a brief description such as ``the cost of your credit as a 
yearly rate.'' \42\ [rtrif]For any transaction involving a finance 
charge of $5 or less on an amount financed of $75 or less, or a finance 
charge of $7.50 or less on an amount financed of more than $75, the 
creditor need not disclose the annual percentage rate.[ltrif]
---------------------------------------------------------------------------

    \42\ [rtrif][Reserved][ltrif] [For any transaction involving a 
finance charge of $5 or less on an amount financed of $75 or less, 
or a finance charge of $7.50 or less on an amount financed of more 
than $75, the creditor need not disclose the annual percentage 
rate.]
---------------------------------------------------------------------------

    (f) Variable-rate loan [with term of one year or less][rtrif]not 
secured by real property or a dwelling[ltrif].
    [(1)] If the annual percentage rate may increase after consummation 
in a transaction not secured by [the consumer's principal dwelling or a 
transaction secured by the consumer's principal dwelling with a term of 
one year or less][rtrif]real property or a dwelling[ltrif], the 
following disclosures: \43\
---------------------------------------------------------------------------

    \43\ [rtrif][Reserved][ltrif][Information provided in accordance 
with Sections 226.18(f)(2) and 226.19(b), may be substituted for the 
disclosures required by paragraph (f)(1) of this section.]
---------------------------------------------------------------------------

    [(i)][rtrif](1)[ltrif] The circumstances under which the interest 
rate may increase.
    [(ii)][rtrif](2)[ltrif] Any limitations on the increase.
    [(iii)][rtrif](3)[ltrif] The effect of an increase.
    [(iv)][rtrif](4)[ltrif] An example of the payment terms that would 
result from an increase.
    [(2) If the annual percentage rate may increase after consummation 
in a transaction secured by the consumer's principal dwelling with a 
term greater than one year, a following disclosures:
    (i) The fact that the transaction contains a variable-rate feature.
    (ii) A statement that variable-rate disclosure have been provided 
earlier.]
    (g) Payment schedule. The number, amounts, and timing of payments 
scheduled to repay the obligation.
    (1) In a demand obligation with no alternate maturity date, the 
creditor may comply with this paragraph by disclosing the due dates or 
payment periods of any scheduled interest payments for the first year.
    (2) In a transaction in which a series of payments varies because a 
finance charge is applied to the unpaid principal balance, the creditor 
may comply with this paragraph by disclosing the following information:
    (i) The dollar amounts of the largest and smallest payments in the 
series.
    (ii) A reference to the variations in the other payments in the 
series.
    (h) Total of payments. The ``total of payments,'' using that term, 
and a descriptive explanation such as ``the amount you will have paid 
when you have made all scheduled payments.'' \44\ [rtrif]In any 
transaction involving a single payment, the creditor need not disclose 
the total of payments.[ltrif]
---------------------------------------------------------------------------

    \44\ [rtrif][Reserved][ltrif] [In any transaction involving a 
single payment, the creditor need not disclose the total of 
payments.]
---------------------------------------------------------------------------

    (i) Demand feature. If the obligation has a demand feature, that 
fact shall be disclosed. When the disclosures are based on an assumed 
maturity of 1 year as provided in Sec.  226.17(c)(5), that fact shall 
also be disclosed.
    (j) Total sale price. In a credit sale, the total sale price, using 
that term, and a descriptive explanation (including the amount of any 
downpayment) such as ``the total price of your purchase on credit, 
including your downpayment of $------.'' The total sale price is the 
sum of the cash price, the items described in paragraph (b)(2), and the 
finance charge disclosed under paragraph (d) of this section.
    (k) Prepayment. (1) When an obligation includes a finance charge 
computed from time to time by application of a rate to the unpaid 
principal balance, a statement indicating whether or not a penalty may

[[Page 43326]]

be imposed if the obligation is prepaid in full.
    (2) When an obligation includes a finance charge other than the 
finance charge described in paragraph (k)(1) of this section, a 
statement indicating whether or not the consumer is entitled to a 
rebate of any finance charge if the obligation is prepaid in full.
    (l) Late payment. Any dollar or percentage charge that may be 
imposed before maturity due to a late payment, other than a deferral or 
extension charge.
    (m) Security interest. The fact that the creditor has or will 
acquire a security interest in the property purchased as part of the 
transaction, or in other property identified by item or type.
    (n) Insurance[rtrif],[ltrif] [and] debt cancellation [rtrif], and 
debt suspension[ltrif]. The items required by Sec.  226.4(d) in order 
to exclude certain insurance premiums[rtrif],[ltrif] and debt-
cancellation [rtrif]or debt suspension[ltrif] fees from the finance 
charge.
    (o) Certain security interest charges. The disclosures required by 
Sec.  226.4(e) in order to exclude from the finance charge certain fees 
prescribed by law or certain premiums for insurance in lieu of 
perfecting a security interest.
    (p) Contract reference. A statement that the consumer should refer 
to the appropriate contract document for information about nonpayment, 
default, the right to accelerate the maturity of the obligation, and 
prepayment rebates and penalties. At the creditor's option, the 
statement may also include a reference to the contract for further 
information about security interests and, in a residential mortgage 
transaction, about the creditor's policy regarding assumption of the 
obligation.
    (q) [Assumption policy. In a residential mortgage transaction, a 
statement whether or not a subsequent purchaser of the dwelling from 
the consumer may be permitted to assume the remaining obligation on its 
original terms.] [rtrif][Reserved.][ltrif]
    (r) Required deposit. If the creditor requires the consumer to 
maintain a deposit as a condition of the specific transaction, a 
statement that the annual percentage rate does not reflect the effect 
of the required deposit.\45\ [rtrif]A required deposit need not 
include:
---------------------------------------------------------------------------

    \45\ [rtrif][Reserved][ltrif] [A required deposit need not 
include, for example: (1) An escrow account for items such as taxes, 
insurance or repairs; (2) a deposit that earns not less than 5 
percent per year; or (3) payments under a Morris Plan.]
---------------------------------------------------------------------------

    (1) An escrow account for items such as taxes, insurance or 
repairs; or
    (2) A deposit that earns not less than 5 percent per year.[ltrif]
    6. Section 226.19 is revised to read as follows:


Sec.  226.19  [Certain mortgage and variable-rate 
transactions.][rtrif]Early disclosures and adjustable-rate disclosures 
for transactions secured by real property or a dwelling.

    In connection with a closed-end transaction secured by real 
property or a dwelling, subject to paragraph (a)(4) of this section, 
the following requirements shall apply:[ltrif]
    (a) Mortgage transactions [subject to RESPA]--(1)(i) Time of 
[rtrif]good faith estimates of[ltrif] disclosures. [In a mortgage 
transaction subject to the Real Estate Settlement Procedures Act (12 
U.S.C. 2601 et seq.) that is secured by the consumer's dwelling, other 
than a home equity line of credit subject to Sec.  226.5b or mortgage 
transaction subject to paragraph (a)(5) of this section, 
t][rtrif]T[ltrif]he creditor shall make good faith estimates of the 
disclosures required by [Sec.  226.18][rtrif]Sec.  226.38[ltrif] and 
shall deliver or place them in the mail not later than the third 
business day after the creditor receives the consumer's written 
application.
    (ii) Imposition of fees. Except as provided in paragraph 
(a)(1)(iii) of this section, neither a creditor nor any other person 
may impose a fee on a consumer in connection with the consumer's 
application for a mortgage transaction subject to paragraph (a)(1)(i) 
of this section before the consumer has received the disclosures 
required by paragraph (a)(1)(i) of this section. If the disclosures are 
mailed to the consumer [rtrif]or delivered to the consumer by means 
other than delivery in person[ltrif], the consumer is considered to 
have received them three business days after they are mailed [rtrif]or 
delivered[ltrif].
    (iii) Exception to fee restriction. A creditor or other person may 
impose a fee for obtaining the consumer's credit history before the 
consumer has received the disclosures required by paragraph (a)(1)(i) 
of this section, provided the fee is bona fide and reasonable in 
amount.
    [(2) Waiting periods for early disclosures and corrected 
disclosures. (i)][rtrif](2)(i) Seven-business-day waiting 
period.[ltrif] The creditor shall deliver or place in the mail the good 
faith estimates required by paragraph (a)(1)(i) of this section not 
later than the seventh business day before consummation of the 
transaction.
    [rtrif](ii) Three-business-day waiting period. After providing the 
disclosures required by paragraph (a)(1)(i) of this section, the 
creditor shall provide the disclosures required by Sec.  226.38 before 
consummation. The consumer must receive the new disclosures no later 
than three business days before consummation. Only the disclosures 
required by Sec. Sec.  226.38(c)(3)(i)(C), 226.38(c)(3)(ii)(C), 
226.38(c)(6)(i) and 226.38(e)(5)(i) may be estimated 
disclosures.[ltrif]
Alternative 1--Paragraph (a)(2)(iii)
    [(ii) If the annual percentage rate disclosed under paragraph 
(a)(1)(i) of this section becomes inaccurate, as defined in Sec.  
226.22, the creditor shall provide corrected disclosures with all 
changed terms.][rtrif](iii) Additional three-business-day waiting 
period. If a subsequent event makes the disclosures required by 
paragraph (a)(2)(ii) inaccurate, the creditor shall provide corrected 
disclosures, subject to paragraph (a)(2)(iv) of this section.[ltrif] 
The consumer must receive the corrected disclosures no later than three 
business days before consummation. [rtrif] Only the disclosures 
required by Sec. Sec.  226.38(c)(3)(i)(C), 226.38(c)(3)(ii)(C), 
226.38(c)(6)(i) and 226.38(e)(5)(i) may be estimated 
disclosures.[ltrif] [If the corrected disclosures are mailed to the 
consumer or delivered to the consumer by means other than delivery in 
person, the consumer is deemed to have received the corrected 
disclosures three business days after they are mailed or delivered.]
Alternative 2--Paragraph (a)(2)(iii)
    [(ii)][rtrif](iii) Additional three-business-day waiting 
period.[ltrif] If the annual percentage rate disclosed under paragraph 
[(a)(1)(i)][rtrif](a)(2)(ii)[ltrif] of this section becomes inaccurate, 
as defined in Sec.  226.22, [rtrif]or a transaction that was disclosed 
as a fixed-rate transaction becomes an adjustable-rate 
transaction,[ltrif] the creditor shall provide corrected disclosures 
with all changed terms[rtrif], subject to paragraph (a)(2)(iv) of this 
section[ltrif]. The consumer must receive the corrected disclosures no 
later than three business days before consummation. [rtrif] Only the 
disclosures required by Sec. Sec.  226.38(c)(3)(i)(C), 
226.38(c)(3)(ii)(C), 226.38(c)(6)(i) and 226.38(e)(5)(i) may be 
estimated disclosures.[ltrif] [If the corrected disclosures are mailed 
to the consumer or delivered to the consumer by means other than 
delivery in person, the consumer is deemed to have received the 
corrected disclosures three business days after they are mailed or 
delivered.]
    [rtrif](iv) Annual percentage rate accuracy. An annual percentage 
rate disclosed under paragraph (a)(2)(ii) or (a)(2)(iii) shall be 
considered accurate as provided by Sec.  226.22, except that even if 
one of the following subsequent events makes the disclosed annual 
percentage rate inaccurate under

[[Page 43327]]

Sec.  226.22, the APR shall be considered accurate for purposes of 
paragraph (a)(2)(ii) and (a)(2)(iii) of this section:
    (A) A decrease in the loan's annual percentage rate due to a 
discount the creditor gives the consumer to induce periodic payments by 
automated debit from a consumer's deposit or other account.
    (B) A decrease in the loan's annual percentage rate due to a 
discount a title insurer gives the consumer on voluntary owners' title 
insurance.
    (v) Timing of receipt. If the disclosures required by paragraph 
(a)(2)(ii) or paragraph (a)(2)(iii) of this section are mailed to the 
consumer or delivered by means other than delivery in person, the 
consumer is considered to have received the disclosures three business 
days after they are mailed or delivered.[ltrif]
    (3) Consumer's waiver of waiting period before consummation. If the 
consumer determines that the extension of credit is needed to meet a 
bona fide personal financial emergency, the consumer may modify or 
waive the seven-business-day waiting period or [the][rtrif]a[ltrif] 
three-business-day waiting period required by paragraph (a)(2) of this 
section, after receiving the disclosures required by [Sec.  
226.18][rtrif]Sec.  226.38[ltrif]. To modify or waive a waiting period, 
the consumer shall give the creditor a dated written statement that 
describes the emergency, specifically modifies or waives the waiting 
period, and bears the signature of all the consumers who are primarily 
liable on the legal obligation. Printed forms for this purpose are 
prohibited.
    [(4) Notice. Disclosures made pursuant to paragraph (a)(1) or 
paragraph (a)(2) of this section shall contain the following statement: 
``You are not required to complete this agreement merely because you 
have received these disclosures or signed a loan application.'' The 
disclosure required by this paragraph shall be grouped together with 
the disclosures required by paragraph (a)(1) or (a)(2) of this 
section.]
    [(5)][rtrif](4)[ltrif] Timeshare plans. In a mortgage transaction 
[subject to the Real Estate Settlement Procedures Act (12 U.S.C. 2601 
et seq.)] that is secured by a consumer's interest in a timeshare plan 
described in 11 U.S.C. 101(53(D)):
    (i) The requirements of paragraphs (a)(1) through 
[(a)(4)][rtrif](a)(3)[ltrif] of this section do not apply;
    (ii) The creditor shall make good faith estimates of the 
disclosures required by [Sec.  226.18] [rtrif]Sec.  226.38[ltrif] 
before consummation, or shall deliver or place them in the mail not 
later than three business days after the creditor receives the 
consumer's written application, whichever is earlier; and
    (iii) If the annual percentage rate at the time of consummation 
varies from the annual percentage rate disclosed under paragraph 
(a)[(5)][rtrif](4)[ltrif](ii) of this section by more than \1/8\; of 1 
percentage point in a regular transaction or [frac14] of 1 percentage 
point in an irregular transaction, the creditor shall disclose all the 
changed terms no later than consummation or settlement.
    [(b) Certain variable-rate transactions.\45a\ If the annual 
percentage rate may increase after consummation in a transaction 
secured by the consumer's principal dwelling with a term greater than 
one year, the following disclosures must be provided at the time an 
application form is provided or before the consumer pays a non-
refundable fee, whichever is earlier: \45b\
---------------------------------------------------------------------------

    \45a\ [rtrif]Reserved.[ltrif][Information provided in accordance 
with variable-rate regulations of other Federal agencies may be 
substituted for the disclosures required by paragraph (b) of this 
section.]
    \45b\ [rtrif]Reserved.[ltrif][Disclosures may be delivered or 
placed in the mail not later than three business days following 
receipt of a consumer's application when the application reaches the 
creditor by telephone, or through an intermediary agent or broker.]
---------------------------------------------------------------------------

    (1) The booklet titled Consumer Handbook on Adjustable Rate 
Mortgages published by the Board and the Federal Home Loan Bank Board, 
or a suitable substitute.
    (2) A loan program disclosure for each variable-rate program in 
which the consumer expresses an interest. The following disclosures, as 
applicable, shall be provided:
    (i) The fact that the interest rate, payment, or term of the loan 
can change.
    (ii) The index or formula used in making adjustments, and a source 
of information about the index or formula.
    (iii) An explanation of how the interest rate and payment will be 
determined, including an explanation of how the index is adjusted, such 
as by the addition of a margin.
    (iv) A statement that the consumer should ask about the current 
margin value and current interest rate.
    (vii) Any rules relating to changes in the index, interest rate, 
payment amount, and outstanding loan balance including, for example, an 
explanation of interest rate or payment limitations, negative 
amortization, and interest rate carryover.
    (viii) At the option of the creditor, either of the following:
    (A) A historical example, based on a $10,000 loan amount, 
illustrating how payments and the loan balance would have been affected 
by interest rate changes implemented according to the terms of the loan 
program disclosure. The example shall reflect the most recent 15 years 
of index values. The example shall reflect all significant loan program 
terms, such as negative amortization, interest rate carryover, interest 
rate discounts, and interest rate and payment limitations, that would 
have been affected by the index movement during the period.
    (B) The maximum interest rate and payment for a $10,000 loan 
originated at the initial interest rate (index value plus margin, 
adjusted by the amount of any discount or premium) in effect as of an 
identified month and year for the loan program disclosure assuming the 
maximum periodic increases in rates and payments under the program; and 
the initial interest rate and payment for that loan and a statement 
that the periodic payment may increase or decrease substantially 
depending on changes in the rate.
    (ix) An explanation of how the consumer may calculate the payments 
for the loan amount to be borrowed based on either:
    (A) The most recent payment shown in the historical example in 
paragraph (b)(2)(viii)(A) of this section; or
    (B) The initial interest rate used to calculate the maximum 
interest rate and payment in paragraph (b)(2)(viii)(B) of this section.
    (x) The fact that the loan program contains a demand feature.
    (xi) The type of information that will be provided in notices of 
adjustments and the timing of such notices.
    (xii) A statement that disclosure forms are available for the 
creditor's other variable-rate loan programs.]
    [rtrif](b) Adjustable-rate loan program disclosures. For 
adjustable-rate mortgages described in Sec.  226.38(a)(3) secured by 
real property or a consumer's dwelling, the creditor shall provide to 
the consumer an adjustable-rate loan program disclosure for each loan 
program in which the consumer expresses an interest. The creditor shall 
disclose the heading ``Adjustable-Rate Mortgage'' or ``ARM'' in 
accordance with Sec.  226.19(b)(4)(iii). The creditor shall provide 
disclosures under this paragraph (b) in circumstances where an open-end 
credit account converts to a closed-end mortgage transaction under a 
written agreement with the consumer. The creditor need not provide such 
disclosures in circumstances where the consumer assumes an adjustable-
rate mortgage originated to another consumer.
    (1) Interest rate and payment. As applicable, the creditor shall 
disclose the information required in paragraph

[[Page 43328]]

(b)(1) of this section, grouped together under the heading ``Interest 
Rate and Payment,'' using that term:
    (i) Introductory period. The time period for which the interest 
rate or payment remains fixed, a statement that the interest rate or 
payment may increase after that period, and an explanation of the 
effect on the interest rate of having an initial interest rate that is 
not determined using the index or formula that applies for interest 
rate adjustments.
    (ii) Frequency of rate and payment change. The frequency of 
interest rate and payment changes permitted under the legal obligation.
    (iii) Index. The index or formula used in making adjustments, a 
source of information about the index or formula, and an explanation of 
how the interest rate will be determined [rtrif]when adjusted[ltrif], 
including an explanation of how the index is adjusted, such as by the 
addition of a margin.
    (iv) Limit on rate changes. An explanation of interest rate or 
payment limitations and interest rate carryover.
    (v) Conversion feature. An explanation of any fixed-rate conversion 
feature that describes any limitations on the period during which the 
loan may be converted, a statement that the fixed interest rate may be 
higher than the adjustable rate at the time of conversion, a statement 
that conversion fees may be charged, and any interest rate and payment 
limitations that apply if the consumer exercises the conversion option.
    (vi) Preferred rate. An explanation of the events that will cause 
the interest rate on an adjustable rate mortgage with a preferred rate 
to increase, a statement of the increase in the interest rate, and a 
statement that fees may be charged if one or more of the events occurs.
    (2) Key questions about risk. The creditor shall disclose the 
information required in paragraphs (b)(2)(i) and (b)(2)(ii) of this 
section, grouped together under the heading ``Key Questions About 
Risk,'' using that term:
    (i) Required disclosures. The creditor shall disclose the following 
information--
    (A) Rate increases. A statement that the interest rate may 
increase, along with a statement indicating when the first interest 
rate increase may occur and the frequency with which the interest rate 
may increase.
    (B) Payment increases. A statement indicating whether or not the 
periodic payment on the loan may increase. If the periodic payment may 
increase, a statement that if the interest rate increases, the periodic 
payment will increase. For a pay option loan, if the periodic payment 
may increase, a statement indicating when the first minimum payment may 
increase.
    (C) Prepayment penalty. If the obligation includes a finance charge 
computed from time to time by application of a rate to the unpaid 
principal balance, a statement indicating whether or not a penalty 
could be imposed if the obligation is prepaid in full. If the creditor 
could impose a prepayment penalty, a statement of the circumstances 
under which and period in which the creditor could impose the penalty.
    (ii) Additional disclosures. The creditor shall disclose the 
following information as applicable:
    (A) Interest-only payments. A statement that periodic payments will 
be applied only toward interest on the loan, along with a statement of 
any limitation on the number of periodic payments that will be applied 
only toward interest on the loan, that such payments will cover the 
interest owed each month, but none of the principal, and that making 
these periodic payments means the loan amount will stay the same and 
the consumer will not have paid any of the loan amount. For payment-
option loans, a statement that the loan gives the consumer the choice 
to make periodic payments that cover the interest owed each month, but 
none of the principal, and that making these periodic payments means 
the loan amount will stay the same and the consumer will not have paid 
any of the loan amount.
    (B) Negative amortization. A statement that the loan balance may 
increase even if the consumer makes the periodic payments, along with a 
statement that the minimum payment covers only a part of the interest 
the consumer owes each period and none of the principal, that the 
unpaid interest will be added to the consumer's loan amount, and that 
over time this will increase the total amount the consumer is borrowing 
and cause the consumer to lose equity in the home.
    (C) Balloon payment. A statement that the consumer will owe a 
balloon payment, along with a statement of when it will be due.
    (D) Demand feature. A statement that the creditor may demand full 
repayment of the loan, along with a statement of the timing of any 
advance notice the creditor will give the consumer before the creditor 
exercises such right.
    (E) No-documentation or low-documentation loans. A statement that 
the consumer's loan could have a higher rate or fees if the consumer 
does not document employment, income or other assets, along with a 
statement that if the consumer provides more documentation, the 
consumer could decrease the interest rate or fees.
    (F) Shared-equity or shared-appreciation. A statement that any 
future equity or appreciation in the real property or dwelling that 
secures the loan must be shared, along with a statement of the 
percentage of future equity or appreciation to which the creditor is 
entitled, and the events that may trigger such an obligation.
    (3) Additional information and Web site. The creditor shall 
disclose a statement that the consumer may obtain additional 
information about adjustable-rate mortgages and a list of licensed 
housing counselors at the Web site of the Federal Reserve Board, and a 
reference to that Web site.
    (4) Format requirements. (i) Application of Sec.  226.37. Except as 
otherwise provided by this paragraph (b)(4), the format requirements in 
Sec.  226.37 apply to loan program disclosures made under this section.
    (ii) Prominent location. The disclosures required by paragraphs 
(b)(1) through (b)(3) of this section shall be grouped together and 
placed in a prominent location.
    (iii) Disclosure of heading. The disclosure of the heading required 
by paragraph (b) of this section shall be more conspicuous than, and 
shall precede, the other disclosures required by paragraph (b) and 
shall be located outside of the tables required by paragraph 
(b)(4)(iv). The creditor may make the heading disclosure using the name 
of the creditor and the name of the loan program.
    (iv) Form of disclosures; tabular format. The creditor shall 
provide the disclosures required by paragraphs (b)(1) and (b)(2) of 
this section in the form of two tables with headings, content, and 
format substantially similar to Form H-4(B) in Appendix H to this part. 
The table shall contain only the information required or permitted by 
paragraphs (b)(1) and (b)(2). The table containing the disclosures 
required by paragraph (b)(1) shall precede the table containing the 
disclosures required by paragraph (b)(2).
    (v) Question and answer format. The creditor shall provide the 
disclosures required by paragraph (b)(2) of this section grouped 
together and presented in the format of question and answer, in a 
manner substantially similar to Form H-4(B) in Appendix H to this part.
    (vi) Highlighting. Each affirmative answer for a feature required 
to be disclosed under paragraph (b)(2) shall be disclosed in bold text 
and in all capitalized letters. Any negative answer shall be in nonbold 
text.

[[Page 43329]]

    (vii) Order of key questions disclosure. The key questions 
disclosure shall be provided, as applicable, in the following order: 
rate increases under Sec.  226.19(b)(2)(i)(A), payment increases under 
Sec.  226.19(b)(2)(i)(B), interest-only payments under Sec.  
226.19(b)(2)(ii)(A), negative amortization under Sec.  
226.19(b)(2)(ii)(B), balloon payment under Sec.  226.19(b)(2)(ii)(C), 
prepayment penalty under Sec.  226.19(b)(2)(i)(C), demand feature under 
Sec.  226.19(b)(2)(ii)(D), no-documentation or low-documentation loans 
under Sec.  226.19(b)(2)(ii)(E), shared-equity or shared-appreciation 
under Sec.  226.19(b)(2)(ii)(F).
    (viii) Disclosure of additional information and Web site. The 
disclosure and Web site information required by paragraph (b)(3) of 
this section shall be located outside and beneath the tables required 
by paragraph (b)(4)(iv).
    (c) Publications for transactions secured by real property or a 
dwelling. In a closed-end consumer credit transaction secured by real 
property or a dwelling, the creditor shall provide the following Board 
publications:
    (1) The publication entitled ``Key Questions to Ask about Your 
Mortgage,'' as published by the Board.
    (2) The publication entitled ``Fixed vs. Adjustable Rate 
Mortgages,'' as published by the Board.
    (d) Timing of disclosures. (1) General. Except as otherwise 
provided by this paragraph (d), the creditor shall provide the 
disclosures and publications required by paragraphs (b) and (c) of this 
section at the time an application form is provided to the consumer or 
before the consumer pays a non-refundable fee, including a fee for 
obtaining the consumer's credit history, whichever is earlier.[ltrif]
    [(c)][rtrif](2)[ltrif] Electronic disclosures. For an application 
that is accessed by the consumer in electronic form, the disclosures 
and publications required by paragraph (b) [rtrif]and (c)[ltrif] of 
this section may be provided to the consumer in electronic form on or 
with the application.
    [rtrif](i) Except as provided in paragraph (d)(2)(ii), if a 
consumer accesses an ARM loan application electronically, the creditor 
shall provide the disclosures and publications required under 
paragraphs (b) and (c) of this section in electronic form.
    (ii) If a consumer who is physically present in the creditor's 
office accesses a loan application electronically, the creditor may 
provide disclosures and publications required under paragraphs (b) and 
(c) of this section in either electronic or paper form.
    (3) Applications made by telephone or through intermediary. If the 
creditor receives the consumer's application through an intermediary 
agent or broker or by telephone, the creditor satisfies the 
requirements of paragraph (b) or paragraph (c) of this section if the 
creditor delivers the disclosures and publications or places them in 
the mail not later than three business days after the creditor receives 
the consumer's application.
    (4) Adjustable-rate feature added after application. If the 
consumer first expresses interest in an adjustable-rate mortgage 
transaction after an application form has been provided or accessed or 
the consumer has paid a non-refundable fee, the creditor shall provide 
to the consumer the disclosures required by paragraph (b) of this 
section within three business days after the creditor is informed of 
such interest by the consumer or by an intermediary broker or agent.
    (5) Terms not usually offered. If the consumer expresses an 
interest in negotiating loan terms that are not generally offered, the 
creditor need not provide the disclosures required by paragraph (b) of 
this section before an application form is provided but shall provide 
such disclosures as soon as reasonably possible after the terms to be 
disclosed have been determined and not later than the time the consumer 
pays a non-refundable fee. In all cases the creditor shall provide the 
disclosures required by paragraph (c) of this section at the time an 
application form is provided or before the consumer pays a non-
refundable fee, including a fee for obtaining a consumer's credit 
history, whichever is earlier.
    (6) Additional loan program disclosures. If, after an application 
form is provided or the consumer pays a non-refundable fee, a consumer 
expresses an interest in an adjustable-mortgage loan program for which 
the creditor has not provided the disclosures required by paragraph (b) 
of this section, the creditor shall provide such disclosures within a 
reasonable time after the consumer expresses such interest. [ltrif]
    7. Section 226.20 is revised to read as follows:


Sec.  226.20  Subsequent disclosure requirements.

    (a) Refinancings. A refinancing occurs when an existing obligation 
that was subject to this subpart is satisfied and replaced by a new 
obligation undertaken by the same consumer. A refinancing is a new 
transaction requiring new disclosures to the consumer. The new finance 
charge shall include any unearned portion of the old finance charge 
that is not credited to the existing obligation. The following shall 
not be treated as a refinancing:
    (1) A renewal of a single payment obligation with no change in the 
original terms.
    (2) A reduction in the annual percentage rate with a corresponding 
change in the payment schedule.
    (3) An agreement involving a court proceeding.
    (4) A change in the payment schedule or a change in collateral 
requirements as a result of the consumer's default or delinquency, 
unless the rate is increased, or the new amount financed exceeds the 
unpaid balance plus earned finance charge and premiums for continuation 
of insurance of the types described in Sec.  226.4(d).
    (5) The renewal of optional insurance purchased by the consumer and 
added to an existing transaction, if disclosures relating to the 
initial purchase were provided as required by this subpart.
    (b) Assumptions. An assumption occurs when a creditor expressly 
agrees in writing with a subsequent consumer to accept that consumer as 
a primary obligor on an existing [residential mortgage 
transaction][rtrif]closed-end credit transaction secured by real 
property or a dwelling[ltrif]. Before the assumption occurs, the 
creditor shall make new disclosures to the subsequent consumer, based 
on the remaining obligation. If the finance charge originally imposed 
on the existing obligation was an add-on or discount finance charge, 
the creditor need only disclose:
    (1) The unpaid balance of the obligation assumed.
    (2) The total charges imposed by the creditor in connection with 
the assumption.
    (3) The information required to be disclosed under [Sec.  
226.18(k), (l), (m), and (n)] [rtrif]Sec.  226.38 (a)(5), (f)(2), (h), 
(j)(2), (j)(3), and (j)(4)[ltrif].
    (4) The annual percentage rate originally imposed on the 
obligation.
    (5) The [payment schedule under Sec.  226.18(g)] [rtrif]interest 
rate and payment summary under Sec.  226.38(c)[ltrif] and the total 
[of] payments under [Sec.  226.18(h)], [rtrif]Sec.  226.38(e)(5)[ltrif] 
based on the remaining obligation.
    (c) [Variable-rate adjustments.] [rtrif]Rate adjustments.[ltrif] 
\45c\ An adjustment to the interest rate with or without a 
corresponding adjustment to the payment in [a variable-rate][rtrif]an 
adjustable-rate[ltrif] mortgage subject to

[[Page 43330]]

Sec.  226.19(b) is an event requiring new disclosures to the consumer. 
[rtrif]An adjustment to the interest rate with a corresponding 
adjustment to the payment due to the conversion of an adjustable-rate 
mortgage subject to Sec.  226.19(b) to a fixed-rate mortgage also is an 
event requiring new disclosures to the consumer.[ltrif][At least once 
each year during which an interest rate adjustment is implemented 
without an accompanying payment change, and at least 25, but no more 
than 120, calendar days before a payment at a new level is due, the 
following disclosures, as applicable, must be delivered or placed in 
the mail:
---------------------------------------------------------------------------

    \45c\ [rtrif]Reserved.[ltrif][Information provided in accordance 
with variable-rate subsequent disclosure regulations of other 
Federal agencies may be substituted for the disclosure required by 
paragraph (c) of this section.]
---------------------------------------------------------------------------

    (1) The current and prior interest rates.
    (2) The index values upon which the current and prior interest 
rates are based.
    (3) The extent to which the creditor has foregone any increase in 
the interest rate.
    (4) The contractual effects of the adjustment, including the 
payment due after the adjustment is made, and a statement of the loan 
balance.
    (5) The payment, if different from that referred to in paragraph 
(c)(4) of this section, that would be required to fully amortize the 
loan at the new interest rate over the remainder of the loan term.]
    [rtrif](1) Timing of disclosures. (i) Payment change. If an 
interest rate adjustment is accompanied by a payment change, the 
creditor shall deliver or place in the mail the disclosures required by 
paragraph (c)(2) of this section at least 60, but no more than 120, 
calendar days before a payment at a new level is due.
    (ii) No payment change. At least once each year during which an 
interest rate adjustment is implemented without an accompanying payment 
change, the creditor shall deliver or place in the mail the disclosures 
required by paragraph (c)(3) of this section.
    (2) Content of payment change disclosures. The creditor must 
provide the following information on the notice provided pursuant to 
paragraph (c)(1)(i) of this section:
    (i) A statement that changes are being made to the interest rate, 
the date such change is effective, and a statement that more detailed 
information is available in the loan agreement(s).
    (ii) A table containing the following disclosures--
    (A) The current and new interest rates.
    (B) If payments on the loan may be interest-only or negatively 
amortizing, the amount of the current and new payment allocated to pay 
principal, interest, and taxes and insurance in escrow, as applicable. 
The current payment allocation disclosed shall be based on the payment 
allocation in the last payment period during which the current interest 
rate applies. The new payment allocation disclosed shall be based on 
the payment allocation in the first payment period during which the new 
interest rate applies.
    (C) The current and new payment and the due date for the new 
payment.
    (iii) A description of the change in the index or formula and any 
application of previously foregone interest.
    (iv) The extent to which the creditor has foregone any increase in 
the interest rate and the earliest date the creditor may apply foregone 
interest to future adjustments, subject to rate caps.
    (v) Limits on interest rate or payment increases at each 
adjustment, if any, and the maximum interest rate or payment over the 
life of the loan.
    (vi) A statement of whether or not part of the new payment will be 
allocated to pay the loan principal and a statement of the payment 
required to fully amortize the loan at the new interest rate over the 
remainder of the loan term or to fully amortize the loan without 
extending the loan term, if different from the new payment disclosed 
pursuant to paragraph (c)(2)(ii)(C) of this section.
    (vii) A statement of the loan balance as of the date the interest 
rate change will become effective.
    (3) Content of annual interest rate notice. The creditor shall 
provide the following information on the annual notice provided 
pursuant to paragraph (c)(1)(ii) of this section, as applicable:
    (i) The specific time period covered by the disclosure, and a 
statement that the interest rate on the loan has changed during the 
past year without changing required payments.
    (ii) The highest and lowest interest rates that applied during the 
period specified under paragraph (c)(3)(i) of this section.
    (iii) Any foregone increase in the interest rate or application of 
previously foregone interest.
    (iv) The maximum interest rate that may apply over the life of the 
loan.
    (v) A statement of the loan balance as of the last day of the time 
period required to be disclosed by paragraph (c)(3)(i) of this section.
    (4) Additional information. In addition to the disclosures provided 
under paragraph (c)(2) or (c)(3) of this section, the creditor shall 
provide the following information:
    (i) If the creditor may impose a penalty if the obligation is 
prepaid in full, a statement of the circumstances under which and 
period in which the creditor may impose the penalty and the amount of 
the maximum penalty possible during the period between the date the 
creditor delivers or mails the disclosures required by this paragraph 
(c) and the last day the creditor may impose the penalty.
    (ii) A telephone number the consumer may call to obtain additional 
information about the consumer's loan.
    (iii) A telephone number and Internet Web site for housing 
counseling resources maintained by the Department of Housing and Urban 
Development.
    (5) Format of disclosures. (i) The disclosures required by this 
paragraph (c) shall be provided in the form of tables with headings, 
content and format substantially similar to Form H-4(G) in Appendix H 
to this part, where an interest rate adjustment is accompanied by a 
payment change, or Form H-4(K) in Appendix H to this part, where a 
creditor provides an annual notice of interest rate adjustments without 
an accompanying payment change. The disclosures required by paragraph 
(c)(2) or (c)(3) of this section shall be grouped together with the 
disclosures required by paragraph (c)(4) of this section, and shall be 
in a prominent location.
    (ii) The disclosures required by paragraph (c)(2)(i) or paragraph 
(c)(3)(i) of this section shall precede the other disclosures required 
by paragraph (c)(2) or (c)(3). The disclosures required by paragraph 
(c)(4) shall be located directly beneath the disclosures required by 
paragraph (c)(2) or (c)(3).
    (iii) The disclosures required by paragraph (c)(2)(ii) shall be in 
the form of a table with headings, content, and format substantially 
similar to Form H-4(G) in Appendix H to this part. The disclosures 
required by paragraphs (c)(2)(iii) through (c)(2)(vii) of this section 
shall be located directly below the table required by paragraph 
(c)(2)(ii).
    (d) Periodic statement. (1) Timing and content of disclosures. If a 
mortgage transaction secured by real property or a dwelling provides a 
consumer with multiple payment options that include a payment that 
results in negative amortization, for each period after consummation 
and not later than fifteen days before payment is due, subject to 
paragraph (c) of this section, the creditor shall mail or deliver to 
the consumer a periodic statement that discloses the following 
information, as applicable:
    (i) Payment. Based on the interest rate in effect at the time the 
disclosure is made, the payment amount required to--
    (A) Pay off the loan balance in full by the end of the term through 
regular

[[Page 43331]]

periodic payments without a balloon payment, with a statement that the 
payment is ``recommended to reduce loan balance,'' using that term;
    (B) Prevent negative amortization, if the legal obligation 
explicitly permits the consumer to elect to pay interest only without 
paying principal; and
    (C) Pay the minimum amount required under the legal obligation.
    (ii) Effects. A statement of the interest and principal, if any, 
covered by the payment amounts disclosed under paragraph (d)(1)(i) of 
this section, a statement describing the effects of making such 
payments, and the earliest date payments at a higher level may be due.
    (iii) Unpaid interest. The amount that will be added to the loan 
balance each period due to unpaid interest.
    (2) Format of disclosures. (i) Form of a table. The disclosures 
required by paragraph (d)(1) of this section shall be in the form of a 
table with headings, content and format substantially similar to Form 
H-4(L) in Appendix H to this part.
    (ii) Location of disclosures. The disclosures required by this 
paragraph (d) shall be placed in a prominent location, except that if 
the disclosures are made concurrently with the disclosures required by 
paragraph (c) of this section, the disclosures required by paragraph 
(c) shall precede the disclosures required by this paragraph (d).
    (iii) Segregation of disclosures. The table described in paragraph 
(d)(2)(i) of this section shall contain only the information required 
by paragraph (d)(1). Other information may be presented with the table, 
provided such information appears outside the required table.
    (e) Creditor-placed property insurance. (1) ``Creditor-placed 
property insurance'' means property insurance coverage obtained by the 
creditor when the property insurance required by the credit agreement 
has lapsed.
    (2) A creditor may not charge a consumer for obtaining property 
insurance on property securing a credit transaction, unless:
    (i) The creditor has made a reasonable determination that the 
required property insurance has lapsed;
    (ii) The creditor has mailed or delivered a written notice to the 
consumer with the disclosures set forth in paragraph (e)(3) of this 
section at least 45 days before a charge is imposed on the consumer for 
creditor-placed property insurance; and
    (iii) During the 45-day notice period, the consumer has not 
provided the creditor with evidence of adequate property insurance.
    (3) The creditor must provide the following information, clearly 
and conspicuously, on the notice required in paragraph (e)(2)(ii) of 
this section:
    (i) The creditor's name and contact information, the loan number, 
and the address or description of the property securing the credit 
transaction;
    (ii) That the consumer is obligated to maintain property insurance 
on the property securing the credit transaction;
    (iii) That the required property insurance has lapsed;
    (iv) That the creditor is authorized to obtain the property 
insurance on the consumer's behalf;
    (v) The date the creditor can charge the consumer for the cost of 
creditor-placed property insurance;
    (vi) How the consumer may provide evidence of property insurance;
    (vii) The cost of creditor-placed property insurance stated as an 
annual premium, and that this premium is likely significantly higher 
than a premium for property insurance purchased by the consumer; and
    (viii) That creditor-placed property insurance may not provide as 
much coverage as homeowner's insurance.
    (4) Within 15 days after a creditor charges the consumer for 
creditor-placed property insurance, the creditor must mail or deliver 
to the consumer a copy of the individual policy, certificate or other 
evidence of the creditor-placed property insurance.[ltrif]

Subpart E--Special Rules for Certain Home Mortgage Transactions

    8. Section 226.32 is amended by revising paragraphs (b)(1), (c)(1), 
and (c)(5), to read as follows:


Sec.  226.32  Requirements for certain closed-end home mortgages.

* * * * *
    (b) * * *
    (1) For purposes of paragraph (a)(1)(ii) of this section, points 
and fees means [rtrif]all items included in the finance charge, 
pursuant to Sec.  226.4, except interest or the time-price 
differential.[ltrif] [:]
    (i) All items required to be disclosed under Sec.  226.4(a) and 
226.4(b), except interest or the time-price differential;
    (ii) All compensation paid to mortgage brokers;
    (iii) All items listed in Sec.  226.4(c)(7) (other than amounts 
held for future payment of taxes) unless the charge is reasonable, the 
creditor receives no direct or indirect compensation in connection with 
the charge, and the charge is not paid to an affiliate of the creditor; 
and
    (iv) Premiums or other charges for credit life, accident, health, 
or loss-of-income insurance, or debt-cancellation coverage (whether or 
not the debt-cancellation coverage is insurance under applicable law) 
that provides for cancellation of all or part of the consumer's 
liability in the event of the loss of life, health, or income or in the 
case of accident, written in connection with the credit transaction.]
* * * * *
    (c) * * *
    (1) Notices. The following statement [rtrif]in bold text and 
minimum 10-point font[ltrif]: [``You are not required to complete this 
agreement merely because you have received these disclosures or have 
signed a loan application. If you obtain this loan, the lender will 
have a mortgage on your home. You could lose your home, and any money 
you have put into it, if you do not meet your obligations under the 
loan.''][rtrif]``If you are unable to make the payments on this loan, 
you could lose your home. You have no obligation to accept this loan. 
Your signature below only confirms that you have received this 
form.''[ltrif]
* * * * *
    (5) Amount borrowed. For a mortgage refinancing, the total amount 
the consumer will borrow, as reflected by the [face] amount of the note 
[rtrif]or other loan agreement[ltrif]; and where the amount borrowed 
includes premiums or other charges for optional credit insurance or 
debt-cancellation [rtrif]or debt suspension[ltrif] coverage, that fact 
shall be stated, grouped together with the disclosure of the amount 
borrowed. The disclosure of the amount borrowed shall be treated as 
accurate if it is not more than $100 above or below the amount required 
to be disclosed.
* * * * *
    9. Section 226.36, as added on July 30, 2008 (73 FR 44604), is 
amended by:
    A. Revising the section heading,
    B. Revising paragraph (a),
    C. Revising paragraphs (b)(1) introductory text, (b)(1)(i)(A) 
through (D), (b)(1)(ii)(A) and (D), and (b)(2),
    D. Revising the introductory text of paragraph (c)(1),
    E. Redesignating paragraph (d) as paragraph (f), and
    F. Adding new paragraphs (d) and (e).
    The additions and revisions read as follows:


Sec.  226.36  Prohibited acts or practices in connection with credit 
secured by [rtrif]real property or a dwelling[ltrif] [a consumer's 
principal dwelling].

    (a) [rtrif]Loan originator and[ltrif] mortgage broker defined. 
[rtrif](1) Loan originator. For purposes of this section, the term 
``loan originator'' means with respect to

[[Page 43332]]

a particular transaction, a person[ltrif] [For purposes of this section 
``mortgage broker'' means a person, other than an employee of a 
creditor,] who for compensation or other monetary gain, or in 
expectation of compensation or other monetary gain, arranges, 
negotiates, or otherwise obtains an extension of consumer credit for 
another person. [The term includes a person meeting this definition, 
even if the consumer credit obligation is initially payable to such 
person, unless the person provides] [rtrif]The term ``loan originator'' 
includes employees of the creditor. The term includes the creditor if 
the creditor does not provide[ltrif] the funds for the transaction at 
consummation out of the [rtrif]creditor's[ltrif] [person's] own 
resources, out of deposits held by the [rtrif]creditor[ltrif] [person], 
or by drawing on a bona fide warehouse line of credit.
    [rtrif](2) Mortgage broker. For purposes of this section, a 
mortgage broker with respect to a particular transaction is any loan 
originator that is not an employee of the creditor.[ltrif]
    (b) Misrepresentation of value of consumer's dwelling--(1) Coercion 
of appraiser. In connection with a consumer credit transaction secured 
by [rtrif]real property or[ltrif] a [consumer's principal] dwelling, no 
creditor or mortgage broker, and no affiliate of a creditor or mortgage 
broker, shall directly or indirectly coerce, influence, or otherwise 
encourage an appraiser to misstate or misrepresent the value of such 
dwelling.
    (i) * * *
    (A) Implying to an appraiser that current or future retention of 
the appraiser depends on the amount at which the appraiser values a 
[consumer's principal] dwelling;
    (B) Excluding an appraiser from consideration for future engagement 
because the appraiser reports a value of a [consumer's principal] 
dwelling that does not meet or exceed a minimum threshold;
    (C) Telling an appraiser a minimum reported value of a [consumer's 
principal] dwelling that is needed to approve the loan;
    (D) Failing to compensate an appraiser because the appraiser does 
not value a [consumer's principal] dwelling at or above a certain 
amount; and
* * * * *
    (ii) * * *
    (A) Asking an appraiser to consider additional information about a 
[consumer's principal] dwelling or about comparable properties;
* * * * *
    (D) Obtaining multiple appraisals of a [consumer's principal] 
dwelling, so long as the creditor adheres to a policy of selecting the 
most reliable appraisal, rather than the appraisal that states the 
highest value;
* * * * *
    (2) When extension of credit prohibited. In connection with a 
consumer credit transaction secured by [rtrif]real property or[ltrif] a 
[consumer's principal] dwelling, a creditor who knows, at or before 
loan consummation, of a violation of paragraph (b)(1) of this section 
in connection with an appraisal shall not extend credit based on such 
appraisal unless the creditor documents that it has acted with 
reasonable diligence to determine that the appraisal does not 
materially misstate or misrepresent the value of such dwelling.
* * * * *
    (c) Servicing practices. (1) In connection with a consumer credit 
transaction secured by [rtrif]real property or[ltrif] a [consumer's 
principal] dwelling, no servicer shall--
* * * * *
    ALTERNATIVE 1--PARAGRAPH (d).
    [rtrif](d) Prohibited payments to loan originators. (1) Payments 
based on transaction terms and conditions. In connection with a 
consumer credit transaction secured by real property or a dwelling, no 
loan originator shall receive and no person shall pay to a loan 
originator, directly or indirectly, compensation in an amount that is 
based on any of the transaction's terms or conditions. For purposes of 
this paragraph, the principal amount of credit extended is deemed to be 
a transaction term. This paragraph (d)(1) shall not apply to any 
transaction in which paragraph (d)(2) of this section applies.
    (2) Payments by persons other than consumer. If a loan originator 
receives compensation directly from the consumer in a transaction 
secured by real property or a dwelling:
    (i) The loan originator shall not receive compensation, directly or 
indirectly, from any person other than the consumer in connection with 
the transaction; and
    (ii) No person who knows or has reason to know of the consumer-paid 
compensation to the loan originator, other than the consumer, shall pay 
any compensation to the loan originator, directly or indirectly, in 
connection with the transaction.
    (3) Affiliates. For purposes of paragraph (d) of this section, 
affiliated entities shall be treated as a single ``person.''[ltrif]
    ALTERNATIVE 2--PARAGRAPH (d).
    [rtrif](d) Prohibited payments to loan originators. (1) Payments 
based on terms and conditions. In connection with a consumer credit 
transaction secured by real property or a dwelling, no loan originator 
shall receive and no person shall pay to a loan originator, directly or 
indirectly, compensation in an amount that is based on any of the 
transaction's terms or conditions. For purposes of this paragraph the 
principal amount of credit extended is not deemed to be a transaction 
term or condition. This paragraph (d)(1) shall not apply to any 
transaction in which paragraph (d)(2) applies.
    (2) Payments by persons other than consumer. If a loan originator 
receives compensation directly from the consumer in a transaction 
secured by real property or a dwelling:
    (i) The loan originator shall not receive compensation, directly or 
indirectly, from any person other than the consumer in connection with 
the transaction; and
    (ii) No person who knows or has reason to know of the consumer-paid 
compensation to the loan originator, other than the consumer, shall pay 
any compensation to the loan originator, directly or indirectly, in 
connection with the transaction.
    (3) Affiliates. For purposes of paragraph (d) of this section, 
affiliated entities shall be treated as a single ``person.''[ltrif]
    OPTIONAL PROPOSAL--PARAGRAPH (e).
    [rtrif](e) Prohibition on steering. (1) General. In connection with 
a credit transaction secured by real property or a dwelling, a loan 
originator shall not direct or ``steer'' a consumer to consummate a 
transaction based on the fact that the originator will receive greater 
compensation from the creditor in that transaction than in other 
transactions the originator offered or could have offered to the 
consumer, unless the transaction is in the consumer's interest.
    (2) Permissible transactions. A transaction does not violate 
paragraph (e)(1) of this section if the loan was chosen by the consumer 
from at least three loan options for each type of transaction in which 
the consumer expressed an interest, and the conditions specified in 
paragraph (e)(3) of this section are met. For purposes of paragraph (e) 
of this section, the phrase ``type of transaction'' refers to whether a 
loan has:
    (i) An annual percentage rate that cannot increase after 
consummation, or
    (ii) An annual percentage rate that may increase after 
consummation.
    (3) Loan options presented. A transaction satisfies paragraph 
(e)(2) of this section only if the loan originator

[[Page 43333]]

presents the loan options required by that paragraph and all of the 
following conditions are met:
    (i) The loan originator obtains loan options from a significant 
number of the creditors with which the originator regularly does 
business and, for each type of transaction in which the consumer 
expressed an interest the originator must present and permit the 
consumer to choose from at least three loans that include:
    (A) The loan with the lowest interest rate;
    (B) The loan with the second lowest interest rate; and
    (C) The loan with the lowest total dollar amount for origination 
points or fees and discount points, as offered by the creditors.
    (ii) The loan originator must have a good faith belief that the 
options presented to the consumer pursuant to paragraph (e)(3)(i) of 
this section are loans for which the consumer likely qualifies.
    (iii) For each type of transaction, if the originator presents to 
the consumer more than three loans, the originator must highlight the 
loans that satisfy the criteria specified in paragraph (e)(3)(i) of 
this section.[ltrif]
    [rtrif](f)[ltrif] [(d)] This section does not apply to a home 
equity line of credit subject to Sec.  226.5b.
    10. A new Sec.  226.37 is added to Subpart E to read as follows:


[rtrif]Sec.  226.37  Special disclosure requirements for closed-end 
mortgages.

    (a) Form of disclosures--(1) General. The creditor shall make the 
disclosures required by Sec. Sec.  226.19, 226.20(c), 226.20(d) and 
226.38 clearly and conspicuously in writing, in a form that the 
consumer may keep.
    (2) Grouped and segregated. The disclosures required by Sec.  
226.19, as applicable, Sec.  226.20(c), Sec.  226.20(d), or Sec.  
226.38 shall be grouped together and segregated from everything else, 
except as provided in paragraph (b) of this section, and shall not 
contain any information not directly related to the disclosures 
required under Sec. Sec.  226.19, 226.20(c), 226.20(d), or 226.38, 
except:
    (i) The disclosures may include the date of the transaction and the 
consumer's name, address, and account number; and
    (ii) The following disclosures may be made together with or 
separately from other required disclosures under Sec.  226.38: the tax 
deductibility disclosure under Sec.  226.38(f)(4); and insurance, debt 
cancellation, or debt suspension disclosure under Sec.  226.38(h).
    (b) Separate disclosures. The following disclosures must be 
provided separately from other required disclosures under Sec.  226.38: 
itemization of amount financed under Sec.  226.38(j)(1); rebate under 
Sec.  226.38(j)(2); late payment under Sec.  226.38(j)(3); property 
insurance under Sec.  226.38(j)(4); contract reference under Sec.  
226.38(j)(5); and assumption under Sec.  226.38(j)(6).
    (c) Terminology. (1) Terminology used in providing the disclosures 
required by Sec. Sec.  226.19, 226.20(c), 226.20(d) and 226.38 shall be 
consistent.
    (2) The term annual percentage rate, when required to be disclosed 
under Sec.  226.38(b)(1) together with a corresponding percentage rate, 
shall be more conspicuous than any other required disclosure, disclosed 
in at least a 16-point font, and be placed in a prominent location and 
in close proximity to a scaled graph in accordance with the 
requirements under Sec.  226.38(b)(2).
    (d) Specific formats. (1) The disclosures required by Sec.  
226.38(a)(1) through (5) shall be provided in accordance with the 
requirements of Sec.  226.38(a), and precede all other disclosures, 
except the identification required by Sec.  226.38(g) and the 
disclosures permitted under paragraph (a)(2)(i) of this section;
    (2) The disclosures required by Sec.  226.38(b)(2) shall be 
provided in the form of a graph with shading, scaling and content in 
accordance with the requirements of Sec.  228.38(b)(2), placed in a 
prominent location and in close proximity to the disclosures required 
by Sec. Sec.  226.38(b)(1), 226.38(b)(3) and 226.38(b)(4);
    (3) The disclosures required by Sec.  226.38(c), as applicable, 
shall be provided in a tabular format in accordance with the 
requirements of Sec.  226.38(c), and placed in a prominent location;
    (4) The disclosure required by Sec.  226.38(c)(2)(iii) shall be 
outlined in a box and placed directly beneath the table required by 
Sec.  226.38(c)(1) in accordance with the requirements of Sec.  
226.38(c)(2)(iii);
    (5) The disclosures required by Sec.  226.38(d) shall be provided 
in a question and answer format in a tabular format in accordance with 
the requirements of Sec.  226.38(d), and shall not precede the 
disclosures required by Sec.  226.38(a) through (c).
    (6) The disclosures required by Sec.  226.38(e) shall be provided 
in a tabular format in accordance with the requirements of Sec.  
226.38(e), and precede any information not directly related to the 
disclosures required by Sec.  226.38.
    (7) The disclosures required by Sec.  226.38(f) shall be provided 
in accordance with the requirements of Sec.  226.38(f), and precede the 
disclosures required by Sec.  226.38(j).
    (8) The loan program disclosures required by Sec.  226.19(b) for an 
adjustable-rate mortgage shall be provided in a tabular format in 
accordance with the requirements of Sec.  226.19(b).
    (9) The disclosures required by Sec.  226.20(c)(2)-(4) for an 
adjustable-rate adjustment notice shall be provided in a tabular format 
in accordance with the requirements of Sec.  226.20(c)(2)-(5).
    (10) The disclosures required by Sec.  226.20(d)(1) for loans with 
negative amortization shall be provided in a tabular format in 
accordance with the requirements of Sec.  226.20(d).
    (e) Electronic disclosures. The disclosures required by Sec.  
226.38 may be provided to the consumer in electronic form in accordance 
with the requirements under Sec.  226.17(a)(1).[ltrif]
    11. A new Sec.  226.38 is added to Subpart E to read as follows:


[rtrif]Sec.  226.38  Content of disclosures for closed-end mortgages.

    In connection with a closed-end transaction secured by real 
property or a dwelling, the creditor shall disclose the following 
information:
    (a) Loan summary. A separate section, labeled ``Loan Summary.''
    (1) Loan amount. The principal amount the consumer will borrow as 
reflected in the loan contract.
    (2) Loan term. The period of time to repay the obligation in full.
    (3) Loan type and features. The loan types and loan features 
described in this section.
    (i) Loan type. The loan type, as applicable:
    (A) Adjustable-rate mortgage. If the annual percentage rate may 
increase after consummation, the creditor shall disclose that the loan 
is an ``adjustable-rate mortgage,'' using that term.
    (B) Step-rate mortgage. If the interest rate will change after 
consummation, and the rates and periods in which they will apply are 
known, the creditor shall disclose that the loan is a ``step-rate 
mortgage,'' using that term.
    (C) Fixed-rate mortgage. If the transaction is not an adjustable-
rate mortgage or a step-rate mortgage, the creditor shall disclose that 
the loan is a ``fixed-rate mortgage,'' using that term.
    (ii) Loan features. No more than two loan features, as applicable:
    (A) Step-payments. If, under the terms of the legal obligation, the 
regular periodic payments will gradually increase by a set amount at 
predetermined times, the creditor shall disclose that the loan has a 
``step-payment'' feature, using that term; and

[[Page 43334]]

    (B) Payment option. If, under the terms of the legal obligation, 
the consumer may choose to make one or more regular periodic payments 
that may cause the loan balance to increase, the creditor shall 
disclose that the loan has a ``payment option'' feature, using that 
term;
    (C) Negative amortization. If, under the terms of the legal 
obligation, the regular periodic payments will cause the loan balance 
to increase and the loan is not a loan described in paragraphs 
(a)(3)(ii)(B) or (a)(3)(ii)(D) of this section, the creditor shall 
disclose that the loan has a ``negative amortization'' feature, using 
that term; or
    (D) Interest-only payments. If, under the terms of the legal 
obligation, one or more regular periodic payments may be applied to 
interest accrued only and not to loan principal, and the loan is not a 
loan described in paragraphs (a)(3)(ii)(A) or (a)(3)(ii)(B) of this 
section, the creditor shall disclose that the loan has an ``interest-
only payment'' feature, using that term.
    (4) Total settlement charges. The ``total settlement charges,'' 
using that term, as disclosed under Regulation X, 12 CFR part 3500. As 
applicable, a statement of the amount of the charges already included 
in the loan amount and a statement that the total does not include a 
down payment, with a reference to the Good Faith Estimate or HUD-1 for 
details.
    (5) Prepayment penalty. If the obligation includes a finance charge 
computed from time to time by application of a rate to the unpaid 
principal balance and permits the creditor to impose a penalty if the 
obligation is prepaid in full, a statement indicating the amount of the 
maximum penalty and the circumstances and period in which the creditor 
may impose the penalty.
    (6) Form of disclosures; tabular format. The disclosures required 
by paragraphs (a)(1) through (5) of this section shall be in the form 
of a table, with headings, content and format substantially similar to 
Forms H-19(A), H-19(B), or H-19(C) in Appendix H to this part. The 
table shall contain only the information required or permitted by 
paragraphs (a)(1) through (5).
    (b) Annual percentage rate. The disclosures specified in paragraph 
(b)(1)-(4) of this section shall be grouped together with headings, 
content and format substantially similar to Forms H-19(A), H-19(B), or 
H-19(C) in Appendix H to this part.
    (1) The ``annual percentage rate,'' using that term, and the 
following description: ``overall cost of this loan including interest 
and settlement charges.''
    (2) A graph depicting the annual percentage rate (APR) disclosed 
under paragraph (b)(1) of this section and how it relates to a range of 
rates including the average prime offer rate as defined in Sec.  
226.35(a)(2) for the week in which the disclosure required under this 
section is provided, and the higher-priced mortgage loan threshold as 
defined in Sec.  226.35(a)(1).
    (i) The graph shall consist of a horizontal line or axis, with a 
shaded bar extending above and below the line. The horizontal axis 
shall be used to depict a range of APRs and the shaded bar shall use 
lighter shading on the left and darker shading on the right to 
distinguish between the rates on the graph that are below and above the 
APR representing the higher-priced mortgage loan threshold.
    (ii) The lighter shaded area shall comprise the first two-thirds of 
the graph to represent the rates that are below the higher-priced 
mortgage loan threshold. On the horizontal axis, a range of APRs shall 
be plotted in the lighter shaded area, starting with the average prime 
offer rate depicted as the lowest APR on the left, and increasing in 
increments of .50 percentage points, up to the APR that is the higher-
priced mortgage loan threshold. The average prime offer rate shall be 
plotted as the lowest APR on the horizontal axis and shall be labeled 
as ``Average Best APR'' or ``Avg. Best APR.''
    (iii) The darker shaded area to the right side of the APR 
representing the higher-priced mortgage loan threshold shall comprise 
the last third of the graph, shall contain the words ``high cost zone'' 
and the APR that is 4 percentage points higher than the higher-priced 
mortgage threshold shall be plotted as the highest APR on the 
horizontal axis. Ellipses shall separate the APR representing the 
higher-priced mortgage threshold and the highest APR on the graph.
    (iv) The graph shall include the APR disclosed under paragraph 
(b)(1) of this section and:
    (A) Identify its location on the horizontal axis, which shall be 
labeled ``this loan: ----% APR,'' or
    (B) If the APR disclosed under paragraph (b)(1) exceeds the highest 
APR on the axis, identify its location beyond the rightmost edge of the 
shaded graph, or
    (C) If the APR disclosed under paragraph (b)(1) is below the 
average prime offer rate, identify its location beyond the leftmost 
edge of the shaded graph.
    (v) The lighter and darker shaded areas shall each extend past the 
lowest and highest APRs depicted on the axis, with a left pointing 
arrow to the left of lowest APR and a right-pointing arrow to the right 
of the highest APR.
    (3) A statement of the average prime offer rate as defined in Sec.  
226.35(a)(2), and the higher-priced mortgage loan threshold, as defined 
in Sec.  226.35(a)(1), current as of the week the disclosure is 
produced.
    (4) The average per-period savings from a 1 percentage point 
reduction in the APR, which shall be calculated as follows:
    (i) Reduce the interest rate by 1 percentage point and compute the 
total of payments that would result from the reduced interest rate;
    (ii) Compute the difference between the total of payments in 
paragraph (b)(4)(i) of this section and the total of payments for the 
loan disclosed under Sec.  226.38(e)(5)(i), and divide the difference 
by the total number of payments required to pay the loan off by its 
maturity.
    (5) Exemptions. The following transactions are exempt from the 
disclosures required under paragraphs (b)(2) and (b)(3) of this 
section:
    (i) A transaction to finance the initial construction of a 
dwelling;
    (ii) A temporary or ``bridge'' loan with a term of twelve months or 
less, such as a loan to purchase a new dwelling where the consumer 
plans to sell a current dwelling within twelve months; and
    (iii) A reverse-mortgage transaction subject to Sec.  226.33.
    (c) Interest rate and payment summary. The creditor shall disclose 
the following information about the interest rate and periodic 
payments:
    (1) The information in paragraphs (c)(2)-(4) of this section shall 
be in the form of a table, with no more than five columns, with 
headings, content and format substantially similar to Forms H-19(A), H-
19(B), or H-19(C) in Appendix H to this part. The table shall contain 
only the information required in paragraphs (c)(2)-(4).
    (2) Interest rates--(i) Amortizing loans. (A) For fixed-rate 
mortgages, the interest rate at consummation.
    (B) For an adjustable-rate mortgage or a step-rate mortgage--
    (1) The interest rate at consummation and the period of time until 
the first interest rate adjustment, labeled as the ``introductory rate 
and monthly payment'';
    (2) The maximum possible interest rate at the first scheduled 
interest rate adjustment and the date on which the

[[Page 43335]]

adjustment will occur, labeled as ``maximum at first adjustment''; and
    (3) The maximum possible interest rate at any time and the earliest 
date on which that rate may apply, labeled as ``maximum ever.''
    (C) If the loan provides for payment increases in paragraph 
(c)(3)(i)(B) of this section, the interest rate in effect at the time 
the first payment increase is scheduled to occur and the date on which 
the increase will occur.
    (ii) Negative amortization loans. The creditor shall disclose--
    (A) The interest rate at consummation and if it will adjust after 
consummation, the length of time until it will adjust and the label 
``introductory'';
    (B) The maximum possible interest rate that could apply when the 
consumer must begin making fully amortizing payments under the terms of 
the legal obligation;
    (C) If the minimum required payment will increase before the 
consumer must begin making fully amortizing payments, the maximum 
possible interest rate that would be in effect at the first payment 
increase and the date the increase is scheduled to occur; and
    (D) If a second payment increase in the minimum required payment 
may occur before the consumer must begin making fully amortizing 
payments, the maximum possible interest rate that would in effect at 
the second payment increase and the date the increase is scheduled to 
occur.
    (iii) Introductory rate disclosure for amortizing adjustable-rate 
mortgage. If the interest rate at consummation is less than the fully-
indexed rate--
    (A) The interest rate that applies at consummation and the period 
of time the interest rate applies;
    (B) A statement that even if market rates do not change, the 
interest rate will increase at the first adjustment and the date of 
such rate adjustment; and
    (C) The fully-indexed rate.
    (3) Payments for amortizing loans--(i) Principal and interest 
payments. If all regular periodic payments will be applied to the 
interest accrued and the principal, for each interest rate disclosed 
under paragraph (c)(2)(i) of this section--
    (A) The corresponding regular periodic payment of principal and 
interest, labeled as ``principal and interest;''
    (B) If the regular periodic payment may increase without regard to 
an interest rate adjustment, the payment that corresponds to the first 
increase and the earliest date on which the increase could occur;
    (C) That an escrow account is required, if applicable, and an 
estimate of the amount of taxes and insurance, including any mortgage 
insurance;
    (D) The sum of the amounts disclosed under paragraph (c)(3)(i)(A)-
(C) of this section, with a description such as ``total estimated 
monthly payment.''
    (ii) Interest-only payments. If the loan is an interest-only loan, 
for each interest rate disclosed under paragraph (c)(2)(i) of this 
section, the corresponding payment and--
    (A) If the payment will be applied to only the interest accrued, 
the amount applied to interest and an indication that none of the 
payment is being applied to principal;
    (B) If the payment will be applied to interest accrued and 
principal, the earliest date that payment will be required and the 
payment amount itemized by the amount applied to interest accrued and 
the amount applied to principal;
    (C) The escrow information in paragraph (c)(3)(i)(C) of this 
section; and
    (D) The sum of all amounts required to be disclosed under paragraph 
(c)(3)(i)(A)-(C) of this section, with a description such as ``total 
estimated monthly payment.''
    (4) Payments for negative amortization loans. (i) The minimum 
payment--
    (A) Required until the first payment increase or interest rate 
increase;
    (B) That would be due at the first payment increase and the second, 
if any, in paragraphs (c)(2)(ii)(C) and (D) of this section; and
    (C) A statement that the minimum payment covers only some interest, 
does not cover any principal, and will cause the loan amount to 
increase.
    (ii) The fully amortizing payment amount at the earliest time when 
such a payment must be made; and, if applicable,
    (iii) In addition to the payments in paragraphs (c)(4)(i) and (ii) 
of this section, for each interest rate required under paragraph 
(c)(2)(ii) of this section, the amount of the fully amortizing payment, 
labeled as the ``full payment option,'' and a statement that payments 
cover all principal and interest.
    (5) Balloon payments. (i) Except as provided in paragraph 
(c)(5)(ii) of this section, if the transaction will require a balloon 
payment, defined as a payment that is more than two times a regular 
periodic payment, the balloon payment must be disclosed separately from 
other regular periodic payments disclosed under this paragraph (c), in 
a manner substantially similar to Model Clause H-20 in Appendix H to 
this part.
    (ii) If the balloon payment is scheduled to occur at the same time 
as another required payment in paragraph (c)(3) or (c)(4) of this 
section, then the balloon payment must be disclosed in the table.
    (6) Special disclosures for loans with negative amortization. The 
following information, in close proximity to the table required in 
paragraph (c)(1) of this section, with headings, content and format 
substantially similar to Form H-19(C) in Appendix H to this part:
    (i) The maximum possible interest rate, the period of time in which 
the interest rate could reach its maximum, the amount of estimated 
taxes and insurance included in each payment disclosed, and a statement 
that the loan offers payment options, two of which are shown.
    (ii) The dollar amount of the increase in the loan's principal 
balance if the consumer makes only the minimum required payments for 
the maximum possible time, and the earliest date on which the consumer 
must make a fully amortizing payment, assuming that the interest rate 
reaches its maximum at the earliest possible time.
    (7) Definitions. For the purposes of this paragraph (c):
    (i) The terms ``adjustable-rate mortgage,'' ``step-rate mortgage,'' 
``fixed-rate mortgage,'' and ``interest-only'' shall have the meaning 
given to them in paragraphs (a)(3)(i) and (a)(3)(ii)(D) of this 
section;
    (ii) The term ``amortizing loan'' means a loan in which the regular 
periodic payments cannot cause the principal balance to increase under 
the terms of the legal obligation; the term ``negative amortization'' 
means a loan in which the regular periodic payments may or will cause 
the principal balance to increase under the terms of the legal 
obligation; and
    (iii) The term ``fully indexed rate'' means the interest rate 
calculated using the index value and margin at the time of 
consummation.
    (d) Key questions about risk. The creditor shall disclose the 
information required in paragraphs (d)(1) and (d)(2) of this section, 
grouped together under the heading ``Key Questions About Risk,'' using 
that term:
    (1) Required disclosures. The creditor shall disclose the following 
information--
    (i) Rate increases. A statement indicating whether or not the 
interest rate on the loan may increase. If the interest rate on the 
loan may increase, a statement indicating the frequency with which the 
interest rate may increase and the date on which the first interest 
rate increase may occur.
    (ii) Payment increases. A statement indicating whether or not the 
periodic payment on the loan may increase. If the

[[Page 43336]]

periodic payment on the loan may increase, a statement indicating the 
date on which the first payment increase may occur. For a payment 
option loan, if the periodic payment on the loan may increase, 
statements indicating the dates on which the full and minimum payments 
may increase.
    (iii) Prepayment penalty. If the obligation includes a finance 
charge computed from time to time by application of a rate to the 
unpaid principal balance, a statement indicating whether or not a 
penalty will be imposed if the obligation is prepaid in full. If the 
creditor may impose a prepayment penalty, a statement of the 
circumstances under which and period in which the creditor may impose 
the penalty and the amount of the maximum penalty.
    (2) Additional disclosures. The creditor shall disclose the 
following information, as applicable--
    (i) Interest-only payments. A statement that periodic payments will 
be applied only toward interest on the loan, along with a statement of 
any limitation on the number of periodic payments that will be applied 
only toward interest on the loan, that such payments will cover the 
interest owed each month, but none of the principal, and that making 
these periodic payments means the loan amount will stay the same and 
the consumer will not have paid any of the loan amount. For payment-
option loans, a statement that the loan gives the consumer the choice 
to make periodic payments that cover the interest owed each month, but 
none of the principal, and that making these periodic payments means 
the loan amount will stay the same and the consumer will not have paid 
any of the loan amount.
    (ii) Negative amortization. A statement that the loan balance may 
increase even if the consumer makes the periodic payments, along with a 
statement that the minimum payment covers only a part of the interest 
the consumer owes each period and none of the principal, that the 
unpaid interest will be added to the consumer's loan amount, and that 
over time this will increase the total amount the consumer is borrowing 
and cause the consumer to lose equity in the home.
    (iii) Balloon payment. A statement that the consumer will owe a 
balloon payment, along with a statement of the amount that will be due 
and the date on which it will be due.
    (iv) Demand feature. A statement that the creditor may demand full 
repayment of the loan, along with a statement of the timing of any 
advance notice the creditor will give the consumer before the creditor 
exercises such right.
    (v) No-documentation or low-documentation loans. A statement that 
the consumer's loan will have a higher rate or fees because the 
consumer did not document employment, income or other assets, along 
with a statement that if the consumer provides more documentation, the 
consumer could decrease the interest rate or fees.
    (vi) Shared-equity or shared-appreciation. A statement that any 
future equity or appreciation in the real property or dwelling that 
secures the loan must be shared, along with a statement of the 
percentage of equity or appreciation to which the creditor is entitled, 
and the events that may trigger such obligation.
    (3) Format requirements. (i) Form of disclosures; tabular format. 
The creditor shall provide the disclosures required by paragraphs 
(d)(1) and (2) of this section, as applicable, in the form of a table 
with headings, content and format substantially similar to Forms H-
19(A), H-19(B), or H-19(C) in Appendix H to this part. The table shall 
contain only the information required or permitted by paragraphs (d)(1) 
and (2).
    (ii) Question and answer format. The creditor shall provide the 
disclosures required by paragraphs (d)(1) through (d)(2) of this 
section grouped together and presented in the format of question and 
answer, in a manner substantially similar to Forms H-19(A), H-19(B), or 
H-19(C) in Appendix H to this part.
    (iii) Highlighting. Each affirmative answer for a feature required 
to be disclosed under paragraphs (d)(1) and (2) of this section shall 
be disclosed in bold text and in all capitalized letters. Any negative 
answer shall be in nonbold text.
    (iv) Order. The disclosures shall be provided, as applicable, in 
the following order: rate increases under Sec.  226.38(d)(1)(i), 
payment increases under Sec.  226.38(d)(1)(ii), interest-only payments 
under Sec.  226.38(d)(2)(i), negative amortization under Sec.  
226.38(d)(2)(ii), balloon payment under Sec.  226.38(d)(2)(iii), 
prepayment penalty under Sec.  226.38(d)(1)(iii), demand feature under 
Sec.  226.38(d)(2)(iv), no-documentation or low-documentation loans 
under Sec.  226.38(d)(2)(v), and shared-equity or shared-appreciation 
under Sec.  226.38(d)(2)(vi).
    (e) Information about payments. A creditor shall disclose the 
following information, grouped together under the heading ``More 
Information About Your Payments'':
    (1) Rate calculation. For an adjustable-rate mortgage, a statement 
labeled ``Rate Calculation'' that describes the method used to 
calculate the interest rate and the frequency of interest rate 
adjustments. If the interest rate that applies at consummation is not 
based on the index and margin that will be used to make later interest 
rate adjustments, the statement must include the time period when the 
initial interest rate expires.
    (2) Rate and payment change limits. (i) For an adjustable-rate 
mortgage, any limitations on the increase in the interest rate labeled 
in bold type ``Rate Change Limits,'' together with a statement of the 
maximum rate that may apply pursuant to such limitations during the 
transaction's term to maturity.
    (ii) If the regular periodic payment required under the terms of 
the legal obligation may cause the principal balance to increase, any 
limitations on the increase in the minimum payment amount and an 
identification of the circumstances under which the minimum required 
payment may recast to a fully amortizing payment labeled, in bold type, 
``Payment Change Limits.''
    (3) Escrow. If applicable, a statement, labeled in bold type 
``Escrow,'' that explains that an escrow account is required for 
property taxes and insurance, that the escrow payment is an estimate 
that can change at any time, and that the consumer should consult the 
good faith estimate of settlement costs and HUD-1 settlement statement 
for more details. If no escrow is required, a statement of that fact 
and that the consumer will have to pay property taxes, homeowners', and 
other insurance directly.
    (4) Mortgage insurance. If applicable, a statement, labeled in bold 
type, ``Private Mortgage Insurance,'' that private mortgage insurance 
is required and, if applicable, whether such insurance is included in 
any escrow account. If other mortgage insurance is required, for 
example, for a transaction insured by a government entity, the 
statement shall be labeled, in bold type, ``Mortgage Insurance.''
    (5) Total payments. A creditor shall disclose the following 
information, grouped together under the subheading ``Total Payments,'' 
using that term:
    (i) Total payments. The total payments amount, calculated based on 
the number and amount of scheduled payments in accordance with the 
requirements of Sec.  226.18(g), together with a statement that the 
total payments is calculated on the assumption that market rates do not 
change, if applicable, and that the consumer makes all payments as 
scheduled. The statement must also specify the total

[[Page 43337]]

number of payments and whether the total payments amount includes 
estimated escrow.
    (ii) Interest and settlement charges. The interest and settlement 
charges, using that term, calculated as the finance charge in 
accordance with the requirements of Sec.  226.4 and expressed as a 
dollar figure, together with a brief statement that the interest and 
settlement charges amount represents part of the total payments amount. 
The disclosed interest and settlement charges, and other disclosures 
affected by the disclosed interest and settlement charges (including 
the amount financed and annual percentage rate), shall be treated as 
accurate if the amount disclosed as the interest and settlement 
charges--
    (A) Is understated by no more than $100;
    (B) Is greater than the amount required to be disclosed.
    (iii) Amount financed. The amount financed, using that term and 
expressed as a dollar figure, together with a brief statement that the 
interest and settlement charges and the amount financed are used to 
calculate the annual percentage rate. The amount financed is calculated 
by subtracting all prepaid finance charges from the loan amount 
required to be disclosed under Sec.  226.38(a)(1).
    (6) Form of disclosures; tabular format. The creditor must provide 
the disclosures required by paragraphs (e)(1) through (5) of this 
section in the form of a table, with headings, content, and format 
substantially similar to Forms H-19(A), H-19(B), or H-19(C) in Appendix 
H to this part. The table shall contain only the information required 
or permitted by paragraphs (e)(1) through (e)(5).
    (f) Additional disclosures. The creditor shall disclose the 
following information, grouped together:
    (1) No obligation statement. A statement that the consumer has no 
obligation to accept the loan. If the creditor provides space for a 
consumer's signature, a statement that a signature by the consumer only 
confirms receipt of the disclosure statement.
    (2) Security interest. A statement that the consumer could lose the 
home if he or she is unable to make payments on the loan.
    (3) No guarantee to refinance statement. A statement that there is 
no guarantee the consumer can refinance the transaction to lower the 
interest rate or monthly payments.
    (4) Tax deductibility. For a transaction secured by a dwelling, if 
the extension of credit may exceed the fair market value of the 
dwelling, the creditor shall disclose that:
    (i) The interest on the portion of the credit extension that is 
greater than the fair market value of the dwelling may not be tax 
deductible for Federal income tax purposes; and
    (ii) The consumer should consult a tax adviser for further 
information regarding the deductibility of interest and charges.
    (5) Additional information and Web site. A statement that if the 
consumer does not understand any disclosure required by this section 
the consumer should ask questions, a statement that the consumer may 
obtain additional information at the Web site of the Federal Reserve 
Board, and a reference to that Web site.
    (6) Format--(i) Location. The statements required by paragraph 
(f)(1) of this section must be disclosed together. The disclosure 
required by paragraph (f)(2) of this section must be made together with 
the disclosure paragraph (f)(3) of this section. The statements 
required by paragraph (f)(5) of this section must be made together.
    (ii) Highlighting. The first statement required to be disclosed by 
paragraphs (f)(1) and (f)(5) of this section, and the statement 
required to be disclosed by paragraph (f)(2), must be disclosed in bold 
text.
    (iii) Form of disclosures. The creditor must provide the 
disclosures required by paragraphs (f)(1) through (5) of this section 
in a manner substantially similar to Forms H-19(A), H-19(B), or H-19(C) 
in Appendix H to this part.
    (g) Identification of creditor and loan originator--(1) Creditor. 
The identity of the creditor making the disclosures.
    (2) Loan originator. The loan originator's unique identifier, as 
defined by the Secure and Fair Enforcement for Mortgage Licensing Act 
of 2008 Sections 1503(3) and (12), 12 U.S.C. 5102(3) and (12).
    (h) Credit insurance and debt cancellation and debt suspension 
coverage. The disclosures specified in paragraphs (h)(1)-(10) of this 
section, which shall be grouped together and substantially similar in 
headings, content and format to Model Clauses H-17(A) and H-17(C) in 
Appendix H to this part.
    (1)(i) If the product is optional, the term ``OPTIONAL COSTS,'' in 
capitalized and bold letters, along with the name of the program, in 
bold letters; or
    (ii) If the product is required, the name of the program, in bold 
letters.
    (2) If the product is optional, the term ``STOP,'' in capitalized 
and bold letters, along with a statement that the consumer does not 
have to buy the product to get the loan. The term ``not'' shall be in 
bold text and underlined.
    (3) A statement that if the consumer already has insurance, then 
the policy or coverage may not provide the consumer with additional 
benefits.
    (4) A statement that other types of insurance may give the consumer 
similar benefits and are often less expensive.
    (5) (i) If the eligibility restrictions are limited to age and/or 
employment, a statement that based on the creditor's review of the 
consumer's age and/or employment status at this time, the consumer 
would be eligible to receive benefits.
    (ii) If there are other eligibility restrictions in addition to age 
and/or employment, a statement that based on the creditor's review of 
the consumer's age and/or employment status at this time, the consumer 
may be eligible to receive benefits.
    (6) If there are other eligibility restrictions in addition to age 
and/or employment, such as pre-existing health conditions, a statement 
that the consumer may not qualify to receive any benefits because of 
other eligibility restrictions.
    (7) If the product is a debt suspension agreement, a statement that 
the obligation to pay loan principal and interest is only suspended, 
and that interest will continue to accrue during the period of 
suspension.
    (8) A statement that the consumer may obtain additional information 
about the product at the Web site of the Federal Reserve Board, and 
reference to that Web site.
    (9)(i) If the product is optional, a statement of the consumer's 
request to purchase or enroll in the optional product and a statement 
of the cost of the product expressed as a dollar amount per month or 
per year, as applicable, together with the loan amount and the term of 
the product in years; or
    (ii) If the product is required, a statement that the product is 
required, along with a statement of the cost of the product expressed 
as a dollar amount per month or per year, as applicable, together with 
the loan amount and the term of the product in years.
    (iii) The cost, month or year, loan amount, and term of the product 
shall be underlined.
    (10) A designation for the signature of the consumer and the date 
of the signing.
    (i) Required deposit. If the creditor requires the consumer to 
maintain a deposit as a condition of the specific transaction, a 
statement that the annual

[[Page 43338]]

percentage rate does not reflect the effect of the required deposit. A 
required deposit need not include:
    (1) An escrow account for items such as taxes, insurance or 
repairs; or
    (2) A deposit that earns not less than 5 percent per year.
    (j) Separate disclosures. The following information must be 
provided separately from the other information required to be disclosed 
under this section.
    (1) Itemization of amount financed. The creditor shall provide one 
of the following disclosures:
    (i) A separate written itemization of the amount financed, 
including:
    (A) The amount of any proceeds distributed directly to the 
consumer.
    (B) The amount credited to the consumer's account with the 
creditor.
    (C) Any amounts paid to other persons by the creditor on the 
consumer's behalf. The creditor shall identify those persons, except 
that the following payees may be described using general terms and need 
not be further identified: Public officials or government agencies, 
credit reporting agencies, appraisers, and insurance companies.
    (D) The prepaid finance charge.
    (ii) A statement that the consumer has the right to receive a 
written itemization of the amount financed, together with a space for 
the consumer to indicate whether it is desired. If the consumer 
requests it, the creditor shall provide an itemization that satisfies 
paragraph (j)(1)(i) of this section at the same time as the other 
disclosures required by this section.
    (iii) A good faith estimate of settlement costs provided under the 
Real Estate Settlement Procedures Act, 12 U.S.C. 2601 et seq. (RESPA), 
in connection with disclosures under this section delivered within 
three business days of application pursuant to Sec.  226.19(a)(1), or 
the HUD-1 settlement statement provided under RESPA, in connection with 
disclosures under this section delivered three business days before 
consummation pursuant to Sec.  226.19(a)(2). The alternative provided 
by this paragraph (j)(1)(iii) is available whether or not those 
disclosures are required by RESPA, but the HUD-1 settlement statement 
satisfies this requirement only if it is provided to the consumer at 
the time required by Sec.  226.19(a)(2).
    (2) Rebate. If the obligation includes a finance charge other than 
one computed from time to time by application of a rate to the unpaid 
principal balance, a statement indicating whether or not the consumer 
is entitled to a rebate of any finance charge if the obligation is 
prepaid in full.
    (3) Late payment. Any dollar or percentage charge that may be 
imposed before maturity due to a late payment, other than a deferral or 
extension charge.
    (4) Property insurance. A statement that the consumer may obtain 
property insurance from any insurer that is acceptable to the creditor.
    (5) Contract reference. A statement that the consumer should refer 
to the appropriate contract document for information about nonpayment, 
default, the right to accelerate the maturity of the obligation, and 
prepayment rebates and penalties. At the creditor's option, the 
statement may also include a reference to the contract for further 
information about security interests and about the creditor's policy 
regarding assumption of the obligation.
    (6) Assumption policy. A statement whether or not a subsequent 
purchaser of the real property or dwelling from the consumer may be 
permitted to assume the remaining obligation on its original terms.
    12. Appendix G to Part 226, as amended on January 29, 2009 (74 FR 
5422) is amended by:
    A. Adding entries for G-16(C) and G-16(D) to the table of contents 
at the beginning of the appendix; and
    B. Adding new Model Clause G-16(C) and new Sample G-16(D) in 
numerical order.

Appendix G to Part 226--Open-End Model Forms and Clauses

* * * * *

[rtrif]G-16(C) Credit Insurance, Debt Cancellation or Debt Suspension 
Model Clause (Sec.  226.4(d)(1) and (d)(3))

G-16(D) Credit Insurance, Debt Cancellation or Debt Suspension Sample 
(Sec.  226.4(d)(1) and (d)(3))[ltrif]

* * * * *

[rtrif]G-16(C) Credit Insurance, Debt Cancellation or Debt Suspension 
Model Clause

OPTIONAL COSTS

(Name of Program)

STOP. You do not have to buy this product to get this loan.

     If you have insurance already, this policy may not 
provide you with any additional benefits.
     Other types of insurance can give you similar benefits 
and are often less expensive.
     Based on our review of your age and/or employment 
status at this time, you [would][may] be eligible to receive 
benefits.
     [However, you may not qualify to receive any benefits 
because of other eligibility restrictions.]

    To learn more about [credit insurance][debt cancellation 
coverage][debt suspension coverage], go to (Board's Web site).

[ballot] Yes, I want to purchase optional (name of program) at an 
additional cost of (cost) per (month or year) for a loan of (loan 
amount) with a [policy/coverage] term of (term in years) years.
-----------------------------------------------------------------------
Signature of Borrower(s)

-----------------------------------------------------------------------

Date

G-16(D) Credit Insurance, Debt Cancellation or Debt Suspension Sample

OPTIONAL COSTS

Credit Life Insurance

STOP. You do not have to buy this product to get this loan.

     If you have insurance already, this policy may not 
provide you with any additional benefits.
     Other types of insurance can give you similar benefits 
and are often less expensive.
     Based on our review of your age and/or employment 
status at this time, you may be eligible to receive benefits.
     However, you may not qualify to receive any benefits 
because of other eligibility restrictions.

    To learn more about credit insurance, go to http://www.xxx.gov.
[ballot] Yes, I want to purchase optional credit life insurance at 
an additional cost of $72 per month for a loan of $100,000 with a 
policy term of 10 years.
-----------------------------------------------------------------------

Signature of Borrower(s)

-----------------------------------------------------------------------

Date[ltrif]
    13. Appendix H to Part 226, as amended on January 29, 2009 (74 
FR 5441) is amended by:
    A. Revising the table of contents at the beginning of the 
appendix;
    B. Republishing H-4(A);
    C. Removing H-4(B), H-4(C) and H-4(D);
    D. Republishing H-5;
    E. Removing and reserving H-6;
    F. Republishing H-7;
    G. Removing and reserving H-13 through H-15;
    H. Revising H-16; and
    I. Adding new H-4(B) through H-4(L), H-17(C) and H-17(D), and H-
18 through H-23 in numerical order.

Appendix H to Part 226--Closed-End Model Forms and Clauses

* * * * *
H-4(A)--Variable-Rate Model Clauses (Sec.  226.18(f)[(1)])
H-4(B)--[Variable-Rate Model Clauses (Sec.  
226.18(f)(2)][rtrif]Adjustable-Rate Loan Program Model Form (Sec.  
226.19(b))[ltrif]
H-4(C)--[Variable-Rate Model Clauses (Sec.  
226.19(b))][rtrif]Adjustable-Rate Loan Program Model Clauses (Sec.  
226.19(b))[ltrif]
H-4(D)--[Variable-Rate Model Clauses (Sec.  
226.20(c))][rtrif]Adjustable-Rate Loan Program Sample (Hybrid ARM) 
(Sec.  226.19(b))[ltrif]
[rtrif]H-4(E)--Adjustable-Rate Loan Program Sample (Interest Only 
ARM) (Sec.  226.19(b))

[[Page 43339]]

H-4(F)--Adjustable-Rate Loan Program Sample (Payment Option ARM) 
(Sec.  226.19(b))
H-4(G)--Adjustable-Rate Adjustment Notice Model Form (Sec.  
226.20(c))
H-4(H)--Adjustable-Rate Adjustment Notice Model Clauses (Sec.  
226.20(c))
H-4(I)--Adjustable-Rate Adjustment Notice Sample (Interest Only ARM) 
(Sec.  226.20(c))
H-4(J)--Adjustable-Rate Adjustment Notice Sample (Hybrid ARM) (Sec.  
226.20(c))
H-4(K)--Adjustable-Rate Annual Notice Model Form (Sec.  226.20(c))
H-4(L)--Negative Amortization Monthly Disclosure Model Form (Sec.  
226.20(d))[ltrif]
* * * * *
H-6--[Assumption Policy Model Clause (Sec.  
226.18(q))][rtrif]Reserved[ltrif]
* * * * *
H-13--[Mortgage with Demand Feature Sample][rtrif]Reserved[ltrif]
H-14--[Variable-Rate Mortgage Sample (Sec.  
226.19(b))][rtrif]Reserved[ltrif]
H-15--[Graduated-Payment Mortgage Sample][rtrif]Reserved[ltrif]
H-16--[Mortgage Sample (Sec.  226.32)][rtrif]Section 32 Loan Model 
Clauses (Sec.  226.32(c))[ltrif]
* * * * *
[rtrif]H-17(C)--Credit Insurance, Debt Cancellation or Debt 
Suspension Model Clause (Sec.  226.4(d)(1), (d)(3) and Sec.  
226.38(h))
H-17(D)--Credit Insurance, Debt Cancellation or Debt Suspension 
Sample (Sec.  226.4(d)(1), (d)(3), and Sec.  226.38(h))
H-18--Creditor-Placed Property Insurance Model Clause (Sec.  
226.20(e))
H-19(A)--Fixed Rate Mortgage Model Form (Sec.  226.38)
H-19(B)--Adjustable-Rate Mortgage Model Form (Sec.  226.38)
H-19(C)--Mortgage with Negative Amortization Model Form (Sec.  
226.38)
H-19(D)--Fixed Rate Mortgage with Balloon Payment Sample (Sec.  
226.38)
H-19(E)--Fixed Rate Mortgage with Interest Only Sample (Sec.  
226.38)
H-19(F)--Step-Payment Mortgage Sample (Sec.  226.38)
H-19(G)--Hybrid Adjustable-Rate Mortgage Sample (Sec.  226.38)
H-19(H)--Adjustable-Rate Mortgage with Interest Only Sample (Sec.  
226.38)
H-19(I)--Adjustable-Rate Mortgage with Payment Options Sample (Sec.  
226.38)
H-20--Balloon Payment Model Clause (Sec.  226.38(c)(5))
H-21--Introductory Rate Model Clause (Sec.  226.38(c)(2)(iii))
H-22--Key Questions About Risk Model Clauses (Sec.  226.38(d))
H-23--Separate Disclosure Model Clauses (Sec.  226.38(j)(2)-
(6))[ltrif]
* * * * *

H-4(A)--Variable Rate Model Clauses

    The annual percentage rate may increase during the term of this 
transaction if:
    [the prime interest rate of (creditor) increases.]
    [the balance in your deposit account falls below $--------.]
    [you terminate your employment with (employer).]
    [The interest rate will not increase above----%.]
    [The maximum interest rate increase at one time will be----%.]
    [The rate will not increase more than once every (time period).]
    Any increase will take the form of:
    [higher payment amounts.]
    [more payments of the same amount.]
    [a larger amount due at maturity.]
    Example based on the specific transaction
    [If the interest rate increases by----% in (time period),
    [your regular payments will increase to $--------.]
    [you will have to make----additional payments.]
    [your final payment will increase to $--------.]]
    Example based on a typical transaction
    [If your loan were for $--------at----% for (term) and the rate 
increased to----% in (time period),
    [your regular payments would increase by $--------.]
    [you would have to make----additional payments.]
    [your final payment would increase by $--------.]]

[[Page 43340]]

[GRAPHIC] [TIFF OMITTED] TP26AU09.028


[[Page 43341]]



H-4(C)--Adjustable-Rate Loan Program Model Clauses

Interest Rate and Payment

(a) Limits on rate or payment changes

    [If a rate cap prevents us from adding part of an interest rate, 
we can add that increase at a later adjustment date.]

(b) Conversion feature

[Conversion Feature

    You have the option to convert your loan to a fixed rate loan 
for (length of time). If you convert your loan to a fixed rate loan, 
the [rate] [payment] may not increase more than (frequency)[ or ----
% overall]. [You may have a higher interest rate when you convert to 
a fixed rate loan.]
    [You may have to pay fees when you convert to a fixed rate 
loan.]]

(c) Preferred rate

[Preferred Rate

    The interest rate is a preferred rate that could [increase] 
[decrease] by----% if (description of event).] [You could pay fees 
if [one or more] (description of event(s)) occur(s).]
[GRAPHIC] [TIFF OMITTED] TP26AU09.029


[[Page 43342]]


[GRAPHIC] [TIFF OMITTED] TP26AU09.030


[[Page 43343]]


[GRAPHIC] [TIFF OMITTED] TP26AU09.031


[[Page 43344]]


[GRAPHIC] [TIFF OMITTED] TP26AU09.032


[[Page 43345]]



H-4(H) Adjustable-Rate Adjustment Notice Model Clauses

Disclosure of New Monthly Payment

    [Your new payment covers all of the interest that you owe this 
month, but none of the principal, and therefore will not reduce your 
loan balance. The payment needed to fully pay off your loan by the 
end of the loan term at the new interest rate is $--------.]
    [Your new payment covers only part of the interest that you owe 
this month, and therefore unpaid interest will be added to your loan 
balance. The payment needed to fully pay off your loan by the end of 
the loan term at the new interest rate is $--------.]
    [Your new payment covers only part of the interest that you owe 
this month, and therefore the term of your loan will increase. The 
payment needed to fully pay off your loan by the end of the previous 
loan term at the new interest rate is $--------.]
[GRAPHIC] [TIFF OMITTED] TP26AU09.033


[[Page 43346]]


[GRAPHIC] [TIFF OMITTED] TP26AU09.034


[[Page 43347]]


[GRAPHIC] [TIFF OMITTED] TP26AU09.035

* * * * *
[GRAPHIC] [TIFF OMITTED] TP26AU09.036


[[Page 43348]]


* * * * *

H-5--Demand Feature Model Clauses

    This obligation [is payable on demand.][has a demand feature.]
    [All disclosures are based on an assumed maturity of one year.]

H-6--[Assumption Policy Model Clause][rtrif]Reserved[ltrif]

    [Assumption: Someone buying your house [may, subject to 
conditions, be allowed to][cannot] assume the remainder of the 
mortgage on the original terms.]

H-7--Required Deposit Model Clause

    The annual percentage rate does not take into account your 
required deposit.
* * * * *

H-13--[Mortgage With Demand Feature Sample][rtrif]Reserved[ltrif]

H-14--[Variable-Rate Mortgage Sample][rtrif]Reserved[ltrif]

H-15--[Graduated-Payment Mortgage Sample][rtrif]Reserved[ltrif]

H-16--[Mortgage Sample][rtrif]Section 32 Loan Model Clauses[ltrif]

    [You are not required to complete this agreement merely because 
you have received these disclosures or have signed a loan 
application.
    If you obtain this loan, the lender will have a mortgage on your 
home.
    YOU COULD LOSE YOUR HOME, AND ANY MONEY YOU HAVE PUT INTO IT, IF 
YOU DO NOT MEET YOUR OBLIGATIONS UNDER THE LOAN.]
    [rtrif]IF YOU ARE UNABLE TO MAKE THE PAYMENTS ON THIS LOAN, YOU 
COULD LOSE YOUR HOME.
    You have no obligation to accept this loan. Your signature below 
only confirms that you have received this form.[ltrif]
    You are borrowing $-------- (optional credit insurance is 
[square] is not [square] included in this amount).
    The annual percentage rate on your loan will be:--------%.
    Your regular (frequency) payment will be: $--------.
    [At the end of your loan, will still owe use: $ (balloon 
payment).]
    [Your interest rate may increase. Increase in the interest rate 
could increase your payment. The highest amount your payment could 
increase is to $--------.]
* * * * *

[rtrif]H-17(C)--Credit Insurance, Debt Cancellation or Debt Suspension 
Model Clause

[OPTIONAL COSTS]

(Name of Program)

[STOP. You do not have to buy this product to get this loan.]

     If you have insurance already, this policy may not 
provide you with any additional benefits.
     Other types of insurance can give you similar benefits 
and are often less expensive.
     Based on our review of your age and/or employment 
status at this time, you [would][may] be eligible to receive 
benefits.
     [However, you may not qualify to receive any benefits 
because of other eligibility restrictions.]
    To learn more about [credit insurance][debt cancellation 
coverage][debt suspension coverage], go to (Web site of the Federal 
Reserve Board).
[ballot] [Yes, I want to purchase optional (name of program) at an 
additional cost of (cost) per (month or year) for a loan of (loan 
amount) with a (policy/coverage) term of (term in years) years.]
    [(Name of program) is required and costs (cost) per (month or 
year) for a loan of (loan amount) with a [policy/coverage] term of 
(term in years) years.]
-----------------------------------------------------------------------

Signature of Borrower(s)

-----------------------------------------------------------------------

Date

H-17(D)--Credit Insurance, Debt Cancellation or Debt Suspension Sample

OPTIONAL COSTS

Credit Life Insurance

STOP. You do not have to buy this product to get this loan.

     If you have insurance already, this policy may not 
provide you with any additional benefits.
     Other types of insurance can give you similar benefits 
and are often less expensive.
     Based on our review of your age and/or employment 
status at this time, you may be eligible to receive benefits.
     However, you may not qualify to receive any benefits 
because of other eligibility restrictions.
    To learn more about credit insurance, go to www.xxx.gov.
[ballot] Yes, I want to purchase optional credit life insurance at 
an additional cost of $72 per month for a loan of $100,000 with a 
policy term of 10 years.
-----------------------------------------------------------------------

Signature of Borrower(s)

-----------------------------------------------------------------------

Date

H-18--Creditor-Placed Property Insurance Model Clause

(Creditor name and contact information)

Re: (loan number) and (property address/description)

    Under our agreement, you must maintain adequate insurance 
coverage on the property. Our records show that your insurance 
policy has expired or been cancelled, and we do not have evidence 
that you have obtained new insurance coverage. Under our agreement, 
we can buy property insurance on your behalf and charge you for the 
cost as early as (date). Therefore, we request that you provide us 
with proof of insurance by (description of procedure for providing 
proof of insurance).
    Please consider the following facts about the insurance policy 
that we buy:
     The cost of this insurance policy is $-------- per year 
and is probably significantly higher than the cost of insurance you 
can buy through your own insurance agent.
     This insurance policy may not provide as much coverage 
as an insurance policy you buy through your own insurance agent].
    If you have any questions, please contact us at (contact 
information).

[[Page 43349]]

[GRAPHIC] [TIFF OMITTED] TP26AU09.037


[[Page 43350]]


[GRAPHIC] [TIFF OMITTED] TP26AU09.038


[[Page 43351]]


[GRAPHIC] [TIFF OMITTED] TP26AU09.039


[[Page 43352]]


[GRAPHIC] [TIFF OMITTED] TP26AU09.040


[[Page 43353]]


[GRAPHIC] [TIFF OMITTED] TP26AU09.041


[[Page 43354]]


[GRAPHIC] [TIFF OMITTED] TP26AU09.042


[[Page 43355]]


[GRAPHIC] [TIFF OMITTED] TP26AU09.043


[[Page 43356]]


[GRAPHIC] [TIFF OMITTED] TP26AU09.044


[[Page 43357]]


[GRAPHIC] [TIFF OMITTED] TP26AU09.045


[[Page 43358]]


[GRAPHIC] [TIFF OMITTED] TP26AU09.046


[[Page 43359]]


[GRAPHIC] [TIFF OMITTED] TP26AU09.047


[[Page 43360]]


[GRAPHIC] [TIFF OMITTED] TP26AU09.048


[[Page 43361]]


[GRAPHIC] [TIFF OMITTED] TP26AU09.049


[[Page 43362]]


[GRAPHIC] [TIFF OMITTED] TP26AU09.050


[[Page 43363]]


[GRAPHIC] [TIFF OMITTED] TP26AU09.051


[[Page 43364]]


[GRAPHIC] [TIFF OMITTED] TP26AU09.052


[[Page 43365]]


[GRAPHIC] [TIFF OMITTED] TP26AU09.053


[[Page 43366]]


[GRAPHIC] [TIFF OMITTED] TP26AU09.054

BILLING CODE 6210-01-C

[[Page 43367]]

H-20--Balloon Payment Model Clause

[Final Balloon Payment due (date): $--------]

H-21--Introductory Rate Model Clause

[Introductory Rate Notice
You have a discounted introductory rate of --------% that ends after 
(period).
In the (date), even if market rates do not change, this rate will 
increase to----%.]

H-22--Key Questions About Risk Model Clauses

(a) Interest only feature

[Will any of my monthly payments be interest-only?]
[YES. Your (frequency) payments for the first (period) of the 
loan][This loan gives you the choice to make (frequency) payments 
that] cover the interest you owe each month, but none of the 
principal. Making these (frequency) payments means your loan amount 
will stay the same and you will be no closer to having it paid off.]

(b) Negative amortization feature

[Even if I make my monthly payments, could my loan balance 
increase?]
    [YES. Your minimum payment covers only part of the interest you 
owe each (period) and none of the principal. The unpaid interest 
will be added to your loan amount, which over time will increase the 
total amount you are borrowing and cause you to lose equity in your 
home.]

(c) Balloon payment feature

    [Will I owe a balloon payment?]
    [YES. You will owe a balloon payment of $--------, due in (date 
of payment).]

(d) Demand feature

    [Can my lender demand full repayment at any time?]
    [YES. We can demand that you pay off the full amount of your 
loan. We will give you at least (period) notice.]

(e) No-documentation or low-documentation feature

    [Will my loan have a higher rate or fees because I did not 
document my employment, income or other assets?]
    [YES. If you provide more documentation, you could decrease your 
interest rate or fees.]

(f) Shared-equity or shared-appreciation feature

    [Do I have to share any equity I gain?]
    [YES. We are entitled to ----% of any gain you make when you 
sell or refinance this property.]

H-23--Separate Disclosure Model Clauses

(a) Rebate

    [If you pay off or refinance your loan, or sell this property 
early, you will receive a refund of some of the interest and fees 
you have paid on your loan.]

(b) Late Payment

    [If you make a payment more than (number of days) days late, you 
may be charged a penalty equal to [$--------][----%].]

(c) Property Insurance

    [You may get property insurance from any insurer that is 
acceptable to us.]

(d) Contract Reference

    Read your loan contract to find out what happens if you stop 
making payments, default, or pay off or refinance the loan early.

(e) Assumption Policy

    [If you sell your home after you take out this loan, we may 
permit the new buyer to take over the payments on your 
mortgage.][ltrif]
    14. In Supplement I to Part 226, as amended on July 30, 2008 (73 
FR 44604), and on January 29, 2009 (74 FR 5450):
    A. Under Section 226.2--Definitions and Rules of Construction, 
2(a)(24) Residential mortgage transaction, paragraphs 1, 2, and 
5(ii) and 5(iii) are revised.
    B. Section 226.4--Finance Charge, Section 226.17--General 
Disclosure Requirements, Section 226.18--Content of Disclosures, 
Section 226.19--Certain Mortgage and Variable-Rate Transactions, and 
Section 226.20--Subsequent Disclosure Requirements are revised.
    C. Under Section 226.24--Advertising, 24(c) Advertisement of 
rate of finance charge, paragraph 4 is revised.
    D. Under Section 226.25--Record Retention, 25(a) General rule, 
new paragraph 5 is added.
    E. Under Section 226.30--Limitation on Rates, paragraph 1 is 
revised.
    F. Under Section 226.32--Requirements for Certain Closed-End 
Home Mortgages, 32(b) Definitions is removed, 32(c) Disclosures, 
paragraph 1 is removed, and 32(c)(5) Amount borrowed, paragraph 1 is 
revised.
    G. Under Section 226.35--Prohibited Acts or Practices in 
Connection With Higher-Priced Mortgage Loans, 35(a) Higher-priced 
mortgage loans, Paragraph 35(a)(2), paragraph 4 is revised and new 
paragraph 5 is added.
    H. Under Section 226.36--Prohibited Acts or Practices in 
Connection with Credit Secured by a Consumer's Principal Dwelling, 
the heading is revised, 36(a) Mortgage broker defined, the heading 
is revised, paragraph 1 is revised, and new paragraph 2 is added, 
36(b) Misrepresentation of value of consumer's principal dwelling, 
the heading is revised, and new 36(d) Prohibited payments to loan 
originators and 36(e) Prohibition on steering are added.
    I. New Section 226.37--Special Disclosure Requirements for 
Closed-End Mortgages and Section 226.38--Content of Disclosures for 
Closed-End Mortgages are added.
    J. Under Appendices G and H--Open-End and Closed-End Model Forms 
and Clauses, paragraphs 1 and 2 are revised.
    K. Appendix H--Closed-End Model Forms and Clauses is revised.

Supplement I to Part 226--Official Staff Interpretations

* * * * *

SUBPART A--GENERAL

* * * * *

Section 226.2--Definitions and Rules of Construction

* * * * *
    2(a)(24) Residential mortgage transaction.
    1. Relation to other sections. This term is important in 
[five][rtrif]three[ltrif] provisions in the regulation:
    i. Section 226.4(c)(7)--exclusions from the finance charge
    ii. Section 226.15(f)--exemption from the right of rescission
    [Section 226.18(q)--whether or not the obligation is assumable]
    [Section 226.20(b)--disclosure requirements for assumptions]
    iii. Section 226.23(f)--exemption from the right of rescission
    2. Lien status. The definition is not limited to first-lien 
transactions. [For example, a consumer might assume a paid-down first 
mortgage (or borrow part of the purchase price) and borrow the balance 
of the purchase price from a creditor who takes a second mortgage. The 
second mortgage transaction is a ``residential mortgage transaction'' 
if the dwelling purchased is the consumer's principal residence.]
* * * * *
    5. Acquisition. * * *
    ii. Examples of new transactions involving a previously acquired 
dwelling include the financing of a balloon payment due under a land 
sale contract and an extension of credit made to a joint owner of 
property to buy out the other joint owner's interest. [In these 
instances, disclosures are not required under Sec.  226.18(q 
(assumability policies). However, the][rtrif]The[ltrif] rescission 
rules of Sec. Sec.  226.15 and 226.23 do apply to these new 
transactions.
    [iii. In other cases, the disclosure and rescission rules do not 
apply. For example, where a buyer enters into a written agreement with 
the creditor holding the seller's mortgage, allowing the buyer to 
assume the mortgage, if the buyer had previously purchased the property 
and agreed with the seller to make the mortgage payments, Sec.  
226.20(b) does not apply (assumptions involving residential 
mortgages).]
* * * * *

Sec.  226.4--Finance Charge.

    4(a) Definition.
    1. Charges in comparable cash transactions. Charges imposed 
uniformly in cash and credit transactions are not finance charges. In 
determining whether an item is a finance charge, the creditor should 
compare the credit transaction in question with a similar cash 
transaction. A creditor financing the sale of property or services may 
compare charges with

[[Page 43368]]

those payable in a similar cash transaction by the seller of the 
property or service.
    i. For example, the following items are not finance charges:
    A. Taxes, license fees, or registration fees paid by both cash and 
credit customers.
    B. Discounts that are available to cash and credit customers, such 
as quantity discounts.
    C. Discounts available to a particular group of consumers because 
they meet certain criteria, such as being members of an organization or 
having accounts at a particular financial institution. This is the case 
even if an individual must pay cash to obtain the discount, provided 
that credit customers who are members of the group and do not qualify 
for the discount pay no more than the nonmember cash customers.
    D. Charges for a service policy, auto club membership, or policy of 
insurance against latent defects offered to or required of both cash 
and credit customers for the same price.
    ii. In contrast, the following items are finance charges:
    A. Inspection and handling fees for the staged disbursement of 
construction-loan proceeds.
    B. Fees for preparing a Truth in Lending disclosure statement, if 
permitted by law (for example, the Real Estate Settlement Procedures 
Act prohibits such charges in certain transactions secured by real 
property).
    C. Charges for a required maintenance or service contract imposed 
only in a credit transaction.
    iii. If the charge in a credit transaction exceeds the charge 
imposed in a comparable cash transaction, only the difference is a 
finance charge. For example:
    A. If an escrow agent is used in both cash and credit sales of real 
estate and the agent's charge is $100 in a cash transaction and $150 in 
a credit transaction, only $50 is a finance charge.
    2. Costs of doing business. Charges absorbed by the creditor as a 
cost of doing business are not finance charges, even though the 
creditor may take such costs into consideration in determining the 
interest rate to be charged or the cash price of the property or 
service sold. However, if the creditor separately imposes a charge on 
the consumer to cover certain costs, the charge is a finance charge if 
it otherwise meets the definition. For example:
    i. A discount imposed on a credit obligation when it is assigned by 
a seller-creditor to another party is not a finance charge as long as 
the discount is not separately imposed on the consumer. (See Sec.  
226.4(b)(6).)
    ii. A tax imposed by a State or other governmental body on a 
creditor is not a finance charge if the creditor absorbs the tax as a 
cost of doing business and does not separately impose the tax on the 
consumer. (For additional discussion of the treatment of taxes, see 
other commentary to Sec.  226.4(a).)
    3. Forfeitures of interest. If the creditor reduces the interest 
rate it pays or stops paying interest on the consumer's deposit account 
or any portion of it for the term of a credit transaction (including, 
for example, an overdraft on a checking account or a loan secured by a 
certificate of deposit), the interest lost is a finance charge. (See 
the commentary to Sec.  226.4(c)(6).) For example:
    i. A consumer borrows $5,000 for 90 days and secures it with a 
$10,000 certificate of deposit paying 15% interest. The creditor 
charges the consumer an interest rate of 6% on the loan and stops 
paying interest on $5,000 of the $10,000 certificate for the term of 
the loan. The interest lost is a finance charge and must be reflected 
in the annual percentage rate on the loan.
    ii. However, the consumer must be entitled to the interest that is 
not paid in order for the lost interest to be a finance charge. For 
example:
    A. A consumer wishes to buy from a financial institution a $10,000 
certificate of deposit paying 15% interest but has only $4,000. The 
financial institution offers to lend the consumer $6,000 at an interest 
rate of 6% but will pay the 15% interest only on the amount of the 
consumer's deposit, $4,000. The creditor's failure to pay interest on 
the $6,000 does not result in an additional finance charge on the 
extension of credit, provided the consumer is entitled by the deposit 
agreement with the financial institution to interest only on the amount 
of the consumer's deposit.
    B. A consumer enters into a combined time deposit/credit agreement 
with a financial institution that establishes a time deposit account 
and an open-end line of credit. The line of credit may be used to 
borrow against the funds in the time deposit. The agreement provides 
for an interest rate on any credit extension of, for example, 1%. In 
addition, the agreement states that the creditor will pay 0% interest 
on the amount of the time deposit that corresponds to the amount of the 
credit extension(s). The interest that is not paid on the time deposit 
by the financial institution is not a finance charge (and therefore 
does not affect the annual percentage rate computation).
    4. Treatment of transaction fees on credit card plans. Any 
transaction charge imposed on a cardholder by a card issuer is a 
finance charge, regardless of whether the issuer imposes the same, 
greater, or lesser charge on withdrawals of funds from an asset account 
such as a checking or savings account. For example:
    i. Any charge imposed on a credit cardholder by a card issuer for 
the use of an automated teller machine (ATM) to obtain a cash advance 
(whether in a proprietary, shared, interchange, or other system) is a 
finance charge regardless of whether the card issuer imposes a charge 
on its debit cardholders for using the ATM to withdraw cash from a 
consumer asset account, such as a checking or savings account.
    ii. Any charge imposed on a credit cardholder for making a purchase 
or obtaining a cash advance outside the United States, with a foreign 
merchant, or in a foreign currency is a finance charge, regardless of 
whether a charge is imposed on debit cardholders for such transactions. 
The following principles apply in determining what is a foreign 
transaction fee and the amount of the fee:
    A. Included are fees imposed when transactions are made in a 
foreign currency and converted to U.S. dollars; fees imposed when 
transactions are made in U.S. dollars outside the U.S.; and fees 
imposed when transactions are made (whether in a foreign currency or in 
U.S. dollars) with a foreign merchant, such as via a merchant's Web 
site. For example, a consumer may use a credit card to make a purchase 
in Bermuda, in U.S. dollars, and the card issuer may impose a fee 
because the transaction took place outside the United States.
    B. Included are fees imposed by the card issuer and fees imposed by 
a third party that performs the conversion, such as a credit card 
network or the card issuer's corporate parent. (For example, in a 
transaction processed through a credit card network, the network may 
impose a 1 percent charge and the card-issuing bank may impose an 
additional 2 percent charge, for a total of a 3 percentage point 
foreign transaction fee being imposed on the consumer.)
    C. Fees imposed by a third party are included only if they are 
directly passed on to the consumer. For example, if a credit card 
network imposes a 1 percent fee on the card issuer, but the card issuer 
absorbs the fee as a cost of doing business (and only passes it on to 
consumers in the general sense that the interest and fees are imposed 
on all its customers to recover its costs), then the fee is not a 
foreign transaction fee and

[[Page 43369]]

need not be disclosed. In another example, if the credit card network 
imposes a 1 percent fee for a foreign transaction on the card issuer, 
and the card issuer imposes this same fee on the consumer who engaged 
in the foreign transaction, then the fee is a foreign transaction fee 
and a finance charge.
    D. A card issuer is not required to disclose a fee imposed by a 
merchant. For example, if the merchant itself performs the currency 
conversion and adds a fee, this fee need not be disclosed by the card 
issuer. Under Sec.  226.9(d), a card issuer is not obligated to 
disclose finance charges imposed by a party honoring a credit card, 
such as a merchant, although the merchant is required to disclose such 
a finance charge if the merchant is subject to the Truth in Lending Act 
and Regulation Z.
    E. The foreign transaction fee is determined by first calculating 
the dollar amount of the transaction by using a currency conversion 
rate outside the card issuer's and third party's control. Any amount in 
excess of that dollar amount is a foreign transaction fee. Conversion 
rates outside the card issuer's and third party's control include, for 
example, a rate selected from the range of rates available in the 
wholesale currency exchange markets, an average of the highest and 
lowest rates available in such markets, or a government-mandated or 
government-managed exchange rate (or a rate selected from a range of 
such rates).
    F. The rate used for a particular transaction need not be the same 
rate that the card issuer (or third party) itself obtains in its 
currency conversion operations. In addition, the rate used for a 
particular transaction need not be the rate in effect on the date of 
the transaction (purchase or cash advance).
    5. Taxes.
    i. Generally, a tax imposed by a State or other governmental body 
solely on a creditor is a finance charge if the creditor separately 
imposes the charge on the consumer.
    ii. In contrast, a tax is not a finance charge (even if it is 
collected by the creditor) if applicable law imposes the tax:
    A. Solely on the consumer;
    B. On the creditor and the consumer jointly;
    C. On the credit transaction, without indicating which party is 
liable for the tax; or
    D. On the creditor, if applicable law directs or authorizes the 
creditor to pass the tax on to the consumer. (For purposes of this 
section, if applicable law is silent as to passing on the tax, the law 
is deemed not to authorize passing it on.)
    iii. For example, a stamp tax, property tax, intangible tax, or any 
other State or local tax imposed on the consumer, or on the credit 
transaction, is not a finance charge even if the tax is collected by 
the creditor.
    iv. In addition, a tax is not a finance charge if it is excluded 
from the finance charge by another provision of the regulation or 
commentary (for example, if the tax is imposed uniformly in cash and 
credit transactions).
    [rtrif]6. Transactions with no seller. In a transaction where there 
is no seller, such as a refinancing of an existing extension of credit 
described in Sec.  226.20(a), there is no comparable cash transaction. 
Thus, the exclusion from the finance charge of charges of a type 
payable in a comparable cash transaction does not apply to such 
transactions.[ltrif]
    4(a)(1) Charges by third parties.
    1. Choosing the provider of a required service. An example of a 
third-party charge included in the finance charge is the cost of 
required mortgage insurance, even if the consumer is allowed to choose 
the insurer.
    2. Annuities associated with reverse mortgages. Some creditors 
offer annuities in connection with a reverse-mortgage transaction. The 
amount of the premium is a finance charge if the creditor requires the 
purchase of the annuity incident to the credit. Examples include the 
following:
    i. The credit documents reflect the purchase of an annuity from a 
specific provider or providers.
    ii. The creditor assesses an additional charge on consumers who do 
not purchase an annuity from a specific provider.
    iii. The annuity is intended to replace in whole or in part the 
creditor's payments to the consumer either immediately or at some 
future date.
    4(a)(2) Special rule; closing agent charges.
    1. General. This rule applies to charges by a third party serving 
as the closing agent for the particular loan. An example of a closing 
agent charge included in the finance charge is a courier fee where the 
creditor requires the use of a courier.
    2. Required closing agent. If the creditor requires the use of a 
closing agent, fees charged by the closing agent are included in the 
finance charge only if the creditor requires the particular service, 
requires the imposition of the charge, or retains a portion of the 
charge. Fees charged by a third-party closing agent may be otherwise 
excluded from the finance charge under Sec.  226.4. For example, a fee 
that would be paid in a comparable cash transaction may be excluded 
under Sec.  226.4(a). A charge for conducting or attending a closing is 
a finance charge and may be excluded only if the charge is included in 
and is incidental to a lump-sum fee excluded under Sec.  226.4(c)(7).
    [rtrif]3. Closed-end mortgage transactions. Comments 4(a)(2)-1 and 
4(a)(2)-2 do not apply to closed-end transactions secured by real 
property or a dwelling, pursuant to Sec.  226.4(g).[ltrif]
    4(a)(3) Special rule; mortgage broker fees.
    1. General. A fee charged by a mortgage broker is excluded from the 
finance charge if it is the type of fee that is also excluded when 
charged by the creditor. For example, to exclude an application fee 
from the finance charge under Sec.  226.4(c)(1), a mortgage broker must 
charge the fee to all applicants for credit, whether or not credit is 
extended.
    2. Coverage. This rule applies to charges paid by consumers to a 
mortgage broker in connection with a consumer credit transaction 
secured by real property or a dwelling.
    3. Compensation by lender. The rule requires all mortgage broker 
fees to be included in the finance charge. Creditors sometimes 
compensate mortgage brokers under a separate arrangement with those 
parties. Creditors may draw on amounts paid by the consumer, such as 
points or closing costs, to fund their payment to the broker. 
Compensation paid by a creditor to a mortgage broker under an agreement 
is not included as a separate component of a consumer's total finance 
charge (although this compensation may be reflected in the finance 
charge if it comes from amounts paid by the consumer to the creditor 
that are finance charges, such as points and interest).
    4(b) Examples of finance charges.
    1. Relationship to other provisions. Charges or fees shown as 
examples of finance charges in Sec.  226.4(b) may be excludable under 
Sec.  226.4(c), (d), or (e). For example[:
    i. Premiums][rtrif], premiums[ltrif] for credit life insurance, 
shown as an example of a finance charge under Sec.  226.4(b)(7), may be 
excluded if the requirements of Sec.  226.4(d)(1) are met. [rtrif]They 
may not be excluded, however, in transactions subject to Sec.  
226.4(g).[ltrif]
    [ii. Appraisal fees mentioned in Sec.  226.4(b)(4) are excluded for 
real property or residential mortgage transactions under Sec.  
226.4(c)(7).]
    Paragraph 4(b)(2).
    1. Checking account charges. A checking or transaction account 
charge imposed in connection with a credit feature is a finance charge 
under

[[Page 43370]]

Sec.  226.4(b)(2) to the extent the charge exceeds the charge for a 
similar account without a credit feature. If a charge for an account 
with a credit feature does not exceed the charge for an account without 
a credit feature, the charge is not a finance charge under Sec.  
226.4(b)(2). To illustrate:
    i. A $5 service charge is imposed on an account with an overdraft 
line of credit (where the institution has agreed in writing to pay an 
overdraft), while a $3 service charge is imposed on an account without 
a credit feature; the $2 difference is a finance charge. (If the 
difference is not related to account activity, however, it may be 
excludable as a participation fee. See the commentary to Sec.  
226.4(c)(4).
    ii. A $5 service charge is imposed for each item that results in an 
overdraft on an account with an overdraft line of credit, while a $25 
service charge is imposed for paying or returning each item on a 
similar account without a credit feature; the $5 charge is not a 
finance charge.
    Paragraph 4(b)(3).
    1. Assumption fees. The assumption fees mentioned in Sec.  
226.4(b)(3) are finance charges only when the assumption occurs and the 
fee is imposed on the new buyer. The assumption fee is a finance charge 
in the new buyer's transaction.
    Paragraph 4(b)(5).
    1. Credit loss insurance. Common examples of the insurance against 
credit loss mentioned in Sec.  226.4(b)(5) are mortgage guaranty 
insurance, holder in due course insurance, and repossession insurance. 
Such premiums must be included in the finance charge only for the 
period that the creditor requires the insurance to be maintained.
    2. Residual value insurance. Where a creditor requires a consumer 
to maintain residual value insurance or where the creditor is a 
beneficiary of a residual value insurance policy written in connection 
with an extension of credit (as is the case in some forms of automobile 
balloon-payment financing, for example), the premiums for the insurance 
must be included in the finance charge for the period that the 
insurance is to be maintained. If a creditor pays for residual value 
insurance and absorbs the payment as a cost of doing business, such 
costs are not considered finance charges. (See comment 4(a)-2.)
    Paragraphs 4(b)(7) and (b)(8).
    1. Pre-existing insurance policy. The insurance discussed in Sec.  
226.4(b)(7) and (b)(8) does not include an insurance policy (such as a 
life or an automobile collision insurance policy) that is already owned 
by the consumer, even if the policy is assigned to or otherwise made 
payable to the creditor to satisfy an insurance requirement. Such a 
policy is not ``written in connection with'' the transaction, as long 
as the insurance was not purchased for use in that credit extension, 
since it was previously owned by the consumer.
    2. Insurance written in connection with a transaction. Credit 
insurance sold before or after an open-end [(not home-secured)] plan is 
opened is considered ``written in connection with a credit 
transaction.'' Insurance sold after consummation in closed-end credit 
transactions [or after the opening of a home-equity plan subject to the 
requirements of Sec.  226.5b] is not considered ``written in connection 
with'' the credit transaction if the insurance is written because of 
the consumer's default (for example, by failing to obtain or maintain 
required property insurance) or because the consumer requests insurance 
after consummation [or the opening of a home-equity plan subject to the 
requirements of Sec.  226.5b] (although credit-sale disclosures may be 
required for the insurance sold after consummation if it is financed).
    3. Substitution of life insurance. The premium for a life insurance 
policy purchased and assigned to satisfy a credit life insurance 
requirement must be included in the finance charge, but only to the 
extent of the cost of the credit life insurance if purchased from the 
creditor or the actual cost of the policy (if that is less than the 
cost of the insurance available from the creditor). If the creditor 
does not offer the required insurance, the premium to be included in 
the finance charge is the cost of a policy of insurance of the type, 
amount, and term required by the creditor.
    4. Other insurance. Fees for required insurance not of the types 
described in Sec.  226.4(b)(7) and (b)(8) are finance charges and are 
not excludable. For example:
    i. The premium for a hospitalization insurance policy, if it is 
required to be purchased only in a credit transaction, is a finance 
charge.
    Paragraph 4(b)(9).
    1. Discounts for payment by other than credit. The discounts to 
induce payment by other than credit mentioned in Sec.  226.4(b)(9) 
include, for example, the following situation:
    i. The seller of land offers individual tracts for $10,000 each. If 
the purchaser pays cash, the price is $9,000, but if the purchaser 
finances the tract with the seller the price is $10,000. The $1,000 
difference is a finance charge for those who buy the tracts on credit.
    2. Exception for cash discounts.
    i. Creditors may exclude from the finance charge discounts offered 
to consumers for using cash or another means of payment instead of 
using a credit card or an open-end plan. The discount may be in 
whatever amount the seller desires, either as a percentage of the 
regular price (as defined in section 103(z) of the act, as amended) or 
a dollar amount. Pursuant to section 167(b) of the act, this provision 
applies only to transactions involving an open-end credit plan or a 
credit card (whether open-end or closed-end credit is extended on the 
card). The merchant must offer the discount to prospective buyers 
whether or not they are cardholders or members of the open-end credit 
plan. The merchant may, however, make other distinctions. For example:
    A. The merchant may limit the discount to payment by cash and not 
offer it for payment by check or by use of a debit card.
    B. The merchant may establish a discount plan that allows a 15% 
discount for payment by cash, a 10% discount for payment by check, and 
a 5% discount for payment by a particular credit card. None of these 
discounts is a finance charge.
    ii. Pursuant to section 171(c) of the act, discounts excluded from 
the finance charge under this paragraph are also excluded from 
treatment as a finance charge or other charge for credit under any 
State usury or disclosure laws.
    3. Determination of the regular price.
    i. The regular price is critical in determining whether the 
difference between the price charged to cash customers and credit 
customers is a discount or a surcharge, as these terms are defined in 
amended section 103 of the act. The regular price is defined in section 
103 of the act as ``* * * the tag or posted price charged for the 
property or service if a single price is tagged or posted, or the price 
charged for the property or service when payment is made by use of an 
open-end credit plan or a credit card if either (1) no price is tagged 
or posted, or (2) two prices are tagged or posted * * *.''
    ii. For example, in the sale of motor vehicle fuel, the tagged or 
posted price is the price displayed at the pump. As a result, the 
higher price (the open-end credit or credit card price) must be 
displayed at the pump, either alone or along with the cash price. 
Service station operators may designate separate pumps or separate 
islands as being for either cash or credit purchases and display only 
the appropriate prices at the various pumps. If a pump is capable of 
displaying on its meter either a cash or a credit price depending upon 
the

[[Page 43371]]

consumer's means of payment, both the cash price and the credit price 
must be displayed at the pump. A service station operator may display 
the cash price of fuel by itself on a curb sign, as long as the sign 
clearly indicates that the price is limited to cash purchases.
    4(b)(10) Debt cancellation and debt suspension fees.
    1. Definition. Debt cancellation coverage provides for payment or 
satisfaction of all or part of a debt when a specified event occurs. 
The term ``debt cancellation coverage'' includes guaranteed automobile 
protection, or ``GAP,'' agreements, which pay or satisfy the remaining 
debt after property insurance benefits are exhausted. Debt suspension 
coverage provides for suspension of the obligation to make one or more 
payments on the date(s) otherwise required by the credit agreement, 
when a specified event occurs. The term ``debt suspension'' does not 
include loan payment deferral arrangements in which the triggering 
event is the bank's unilateral decision to allow a deferral of payment 
and the borrower's unilateral election to do so, such as by skipping or 
reducing one or more payments (``skip payments'').
    2. Coverage written in connection with a transaction. Coverage sold 
after consummation in closed-end credit transactions [or after the 
opening of a home-equity plan subject to the requirements of Sec.  
226.5b] is not ``written in connection with'' the credit transaction if 
the coverage is written because the consumer requests coverage after 
consummation [or the opening of a home-equity plan subject to the 
requirements of Sec.  226.5b] (although credit-sale disclosures may be 
required for the coverage sold after consummation if it is financed). 
Coverage sold before or after an open-end [(not home-secured)] plan is 
opened is considered ``written in connection with a credit 
transaction.''
    4(c) Charges excluded from the finance charge.
    Paragraph 4(c)(1).
    1. Application fees. An application fee that is excluded from the 
finance charge is a charge to recover the costs associated with 
processing applications for credit. The fee may cover the costs of 
services such as credit reports, credit investigations, and appraisals. 
The creditor is free to impose the fee in only certain of its loan 
programs, such as [rtrif]automobile[ltrif] [mortgage] loans. However, 
if the fee is to be excluded from the finance charge under Sec.  
226.4(c)(1), it must be charged to all applicants, not just to 
applicants who are approved or who actually receive credit.
    Paragraph 4(c)(2).
    1. Late-payment charges.
    i. Late-payment charges can be excluded from the finance charge 
under Sec.  226.4(c)(2) whether or not the person imposing the charge 
continues to extend credit on the account or continues to provide 
property or services to the consumer. In determining whether a charge 
is for actual unanticipated late payment on a 30-day account, for 
example, factors to be considered include:
    A. The terms of the account. For example, is the consumer required 
by the account terms to pay the account balance in full each month? If 
not, the charge may be a finance charge.
    B. The practices of the creditor in handling the accounts. For 
example, regardless of the terms of the account, does the creditor 
allow consumers to pay the accounts over a period of time without 
demanding payment in full or taking other action to collect? If no 
effort is made to collect the full amount due, the charge may be a 
finance charge.
    ii. Section 226.4(c)(2) applies to late-payment charges imposed for 
failure to make payments as agreed, as well as failure to pay an 
account in full when due.
    2. Other excluded charges. Charges for ``delinquency, default, or a 
similar occurrence'' include, for example, charges for reinstatement of 
credit privileges or for submitting as payment a check that is later 
returned unpaid.
    Paragraph 4(c)(3).
    1. Assessing interest on an overdraft balance. A charge on an 
overdraft balance computed by applying a rate of interest to the amount 
of the overdraft is not a finance charge, even though the consumer 
agrees to the charge in the account agreement, unless the financial 
institution agrees in writing that it will pay such items.
    Paragraph 4(c)(4).
    1. Participation fees--periodic basis. The participation fees 
described in Sec.  226.4(c)(4) do not necessarily have to be formal 
membership fees, nor are they limited to credit card plans. The 
provision applies to any credit plan in which payment of a fee is a 
condition of access to the plan itself, but it does not apply to fees 
imposed separately on individual closed-end transactions. The fee may 
be charged on a monthly, annual, or other periodic basis; a one-time, 
nonrecurring fee imposed at the time an account is opened is not a fee 
that is charged on a periodic basis, and may not be treated as a 
participation fee.
    2. Participation fees--exclusions. Minimum monthly charges, charges 
for nonuse of a credit card, and other charges based on either account 
activity or the amount of credit available under the plan are not 
excluded from the finance charge by Sec.  226.4(c)(4). Thus, for 
example, a fee that is charged and then refunded to the consumer based 
on the extent to which the consumer uses the credit available would be 
a finance charge. (See the commentary to Sec.  226.4(b)(2). Also, see 
comment 14(c)-2 for treatment of certain types of fees excluded in 
determining the annual percentage rate for the periodic statement.)
    Paragraph 4(c)(5).
    1. Seller's points. The seller's points mentioned in Sec.  
226.4(c)(5) include any charges imposed by the creditor upon the non-
creditor seller of property for providing credit to the buyer or for 
providing credit on certain terms. These charges are excluded from the 
finance charge even if they are passed on to the buyer, for example, in 
the form of a higher sales price. Seller's points are frequently 
involved in real estate transactions guaranteed or insured by 
governmental agencies. A commitment fee paid by a non-creditor seller 
(such as a real estate developer) to the creditor should be treated as 
seller's points. Buyer's points (that is, points charged to the buyer 
by the creditor), however, are finance charges.
    2. Other seller-paid amounts. Mortgage insurance premiums and other 
finance charges are sometimes paid at or before consummation or 
settlement on the borrower's behalf by a non-creditor seller. The 
creditor should treat the payment made by the seller as seller's points 
and exclude it from the finance charge if, based on the seller's 
payment, the consumer is not legally bound to the creditor for the 
charge. A creditor who gives disclosures before the payment has been 
made should base them on the best information reasonably available.
    Paragraph 4(c)(6).
    1. Lost interest. Certain federal and State laws mandate a 
percentage differential between the interest rate paid on a deposit and 
the rate charged on a loan secured by that deposit. In some situations, 
because of usury limits the creditor must reduce the interest rate paid 
on the deposit and, as a result, the consumer loses some of the 
interest that would otherwise have been earned. Under Sec.  
226.4(c)(6), such ``lost interest'' need not be included in the finance 
charge. This rule applies only to an interest reduction imposed because 
a rate differential is required by law and a usury limit precludes 
compliance by any other means. If the creditor imposes a differential 
that exceeds that required, only the lost interest attributable to the 
excess amount is a finance charge. (See the commentary to Sec.  
226.4(a).)

[[Page 43372]]

    Paragraph 4(c)(7).
    1. [Real estate or residential mortgage transaction] [rtrif]Open-
end real-property-secured credit[ltrif]charges. The list of charges in 
Sec.  226.4(c)(7) applies [rtrif]to open-end credit plans secured by 
real property and open-end residential mortgage transactions[ltrif] 
[both to residential mortgage transactions (which may include, for 
example, the purchase of a mobile home) and to other transactions 
secured by real estate.] The fees are excluded from the finance charge 
even if the services for which the fees are imposed are performed by 
the creditor's employees rather than by a third party. In addition, the 
cost of verifying or confirming information connected to the item is 
also excluded. For example, credit-report fees cover not only the cost 
of the report but also the cost of verifying information in the report. 
In all cases, charges excluded under Sec.  226.4(c)(7) must be bona 
fide and reasonable.
    2. Lump-sum charges. If a lump sum charged for several services 
includes a charge that is not excludable, a portion of the total should 
be allocated to that service and included in the finance charge. 
However, a lump sum charged for conducting or attending a closing (for 
example, by a lawyer or a title company) is excluded from the finance 
charge if the charge is primarily for services related to items listed 
in Sec.  226.4(c)(7) (for example, reviewing or completing documents), 
even if other incidental services such as explaining various documents 
or disbursing funds for the parties are performed. The entire charge is 
excluded even if a fee for the incidental services would be a finance 
charge if it were imposed separately.
    3. Charges assessed during the loan term. [rtrif]Charges[ltrif] 
[Real estate or residential mortgage transaction charges] excluded 
under Sec.  226.4(c)(7) are those charges imposed solely in connection 
with the initial decision to grant credit. This would include, for 
example, a fee to search for tax liens on the property or to determine 
if flood insurance is required. The exclusion does not apply to fees 
for services to be performed periodically during the loan term, 
regardless of when the fee is collected. For example, a fee for one or 
more determinations during the loan term of the current tax-lien status 
or flood-insurance requirements is a finance charge, regardless of 
whether the fee is imposed at closing, or when the service is 
performed. If a creditor is uncertain about what portion of a fee to be 
paid at consummation or loan closing is related to the initial decision 
to grant credit, the entire fee may be treated as a finance charge.
    4(d) Insurance and debt cancellation and debt suspension coverage.
    1. General. Section 226.4(d) permits insurance premiums and charges 
and debt cancellation and debt suspension charges to be excluded from 
the finance charge. The required disclosures must be made in writing, 
except as provided in Sec.  226.4(d)(4). The rules on location of 
insurance and debt cancellation and debt suspension disclosures for 
closed-end transactions are in Sec.  226.17(a). For purposes of Sec.  
226.4(d), all references to insurance also include debt cancellation 
and debt suspension coverage unless the context indicates otherwise.
    2. Timing of disclosures. If disclosures are given early, for 
example under Sec.  226.17(f)[or Sec.  226.19(a)], the creditor must 
redisclose if the actual premium is different at the time of 
consummation. If insurance disclosures are not given at the time of 
early disclosure and insurance is in fact written in connection with 
the transaction, the disclosures under Sec.  226.4(d) must be made in 
order to exclude the premiums from the finance charge.
    3. Premium rate increases. The creditor should disclose the premium 
amount based on the rates currently in effect and need not designate it 
as an estimate even if the premium rates may increase. An increase in 
insurance rates after consummation of a closed-end credit transaction 
or during the life of an open-end credit plan does not require 
redisclosure in order to exclude the additional premium from treatment 
as a finance charge.
    4. Unit-cost disclosures.
    i. Open-end credit. The premium or fee for insurance or debt 
cancellation or debt suspension for the initial term of coverage may be 
disclosed on a unit-cost basis in open-end credit transactions. The 
cost per unit should be based on the initial term of coverage, unless 
one of the options under comment 4(d)-12 is available.
    ii. Closed-end credit. One of the transactions for which unit-cost 
disclosures (such as 50 cents per year for each $100 of the amount 
financed) may be used in place of the total insurance premium involves 
a particular kind of insurance plan. For example, a consumer with a 
current indebtedness of $8,000 is covered by a plan of credit life 
insurance coverage with a maximum of $10,000. The consumer requests an 
additional $4,000 loan to be covered by the same insurance plan. Since 
the $4,000 loan exceeds, in part, the maximum amount of indebtedness 
that can be covered by the plan, the creditor may properly give the 
insurance-cost disclosures on the $4,000 loan on a unit-cost basis.
    5. Required credit life insurance; debt cancellation or suspension 
coverage. Credit life, accident, health, or loss-of-income insurance, 
and debt cancellation and suspension coverage described in Sec.  
226.4(b)(10), must be voluntary in order for the premium or charges to 
be excluded from the finance charge. Whether the insurance or coverage 
is in fact required or optional is a factual question. If the insurance 
or coverage is required, the premiums must be included in the finance 
charge, whether the insurance or coverage is purchased from the 
creditor or from a third party. If the consumer is required to elect 
one of several options--such as to purchase credit life insurance, or 
to assign an existing life insurance policy, or to pledge security such 
as a certificate of deposit--and the consumer purchases the credit life 
insurance policy, the premium must be included in the finance charge. 
(If the consumer assigns a preexisting policy or pledges security 
instead, no premium is included in the finance charge. The security 
interest would be disclosed under Sec.  226.6(a)(4), Sec.  
226.6(b)(5)(ii), or Sec.  226.18(m). See the commentary to Sec.  
226.4(b)(7) and (b)(8).)
    6. Other types of voluntary insurance. Insurance is not credit 
life, accident, health, or loss-of-income insurance if the creditor or 
the credit account of the consumer is not the beneficiary of the 
insurance coverage. If the premium for such insurance is not imposed by 
the creditor as an incident to or a condition of credit, it is not 
covered by Sec.  226.4.
    7. Signatures. If the creditor offers a number of insurance options 
under Sec.  226.4(d), the creditor may provide a means for the consumer 
to sign or initial for each option, or it may provide for a single 
authorizing signature or initial with the options selected designated 
by some other means, such as a check mark. The insurance authorization 
may be signed or initialed by any consumer, as defined in Sec.  
226.2(a)(11), or by an authorized user on a credit card account.
    8. Property insurance. To exclude property insurance premiums or 
charges from the finance charge, the creditor must allow the consumer 
to choose the insurer and disclose that fact. This disclosure must be 
made whether or not the property insurance is available from or through 
the creditor. The requirement that an option be given does not require 
that the insurance be readily available from other sources. The premium 
or charge must be disclosed only if the consumer elects to purchase the 
insurance from [rtrif]or through[ltrif] the creditor; in such a case, 
the creditor must also disclose the term of the property insurance 
coverage if it is less

[[Page 43373]]

than the term of the obligation. [rtrif]Insurance is available ``from 
or through a creditor'' if it is available from the creditor's 
affiliate, as defined under the Bank Holding Company Act, 12 U.S.C. 
1841(k).[ltrif]
    9. Single-interest insurance. Blanket and specific single-interest 
coverage are treated the same for purposes of the regulation. A charge 
for either type of single-interest insurance may be excluded from the 
finance charge if:
    i. The insurer waives any right of subrogation.
    ii. The other requirements of Sec.  226.4(d)(2) are met. This 
includes, of course, giving the consumer the option of obtaining the 
insurance from a person of the consumer's choice. The creditor need not 
ascertain whether the consumer is able to purchase the insurance from 
someone else.
    10. Single-interest insurance defined. The term single-interest 
insurance as used in the regulation refers only to the types of 
coverage traditionally included in the term vendor's single-interest 
insurance (or VSI), that is, protection of tangible property against 
normal property damage, concealment, confiscation, conversion, 
embezzlement, and skip. Some comprehensive insurance policies may 
include a variety of additional coverages, such as repossession 
insurance and holder-in-due-course insurance. These types of coverage 
do not constitute single-interest insurance for purposes of the 
regulation, and premiums for them do not qualify for exclusion from the 
finance charge under Sec.  226.4(d). If a policy that is primarily VSI 
also provides coverages that are not VSI or other property insurance, a 
portion of the premiums must be allocated to the non-excludable 
coverages and included in the finance charge. However, such allocation 
is not required if the total premium in fact attributable to all of the 
non-VSI coverages included in the policy is $1.00 or less (or $5.00 or 
less in the case of a multiyear policy).
    11. Initial term.
    i. The initial term of insurance or debt cancellation or debt 
suspension coverage determines the period for which a premium amount 
must be disclosed, unless one of the options discussed under comment 
4(d)-12 is available. For purposes of Sec.  226.4(d), the initial term 
is the period for which the insurer or creditor is obligated to provide 
coverage, even though the consumer may be allowed to cancel the 
coverage or coverage may end due to nonpayment before that term 
expires.
    ii. For example:
    A. The initial term of a property insurance policy on an automobile 
that is written for one year is one year even though premiums are paid 
monthly and the term of the credit transaction is four years.
    B. The initial term of an insurance policy is the full term of the 
credit transaction if the consumer pays or finances a single premium in 
advance.
    12. Initial term; alternative.
    i. General. A creditor has the option of providing cost disclosures 
on the basis of one year of insurance or debt cancellation or debt 
suspension coverage instead of a longer initial term (provided the 
premium or fee is clearly labeled as being for one year) if:
    A. The initial term is indefinite or not clear, or
    B. The consumer has agreed to pay a premium or fee that is assessed 
periodically but the consumer is under no obligation to continue the 
coverage, whether or not the consumer has made an initial payment.
    ii. Open-end plans. For open-end plans, a creditor also has the 
option of providing unit-cost disclosure on the basis of a period that 
is less than one year if the consumer has agreed to pay a premium or 
fee that is assessed periodically, for example monthly, but the 
consumer is under no obligation to continue the coverage.
    iii. Examples. To illustrate:
    A. A credit life insurance policy providing coverage for a 
[rtrif]seven-year automobile[ltrif] [30-year mortgage] loan has an 
initial term of [rtrif]seven[ltrif] [30] years, even though premiums 
are paid monthly and the consumer is not required to continue the 
coverage. Disclosures may be based on the initial term, but the 
creditor also has the option of making disclosures on the basis of 
coverage for an assumed initial term of one year.
    13. Loss-of-income insurance. The loss-of-income insurance 
mentioned in Sec.  226.4(d) includes involuntary unemployment 
insurance, which provides that some or all of the consumer's payments 
will be made if the consumer becomes unemployed involuntarily.
    [rtrif]14. Age or employment eligibility criteria. A premium or 
charge for credit life, accident, health, or loss-of-income insurance, 
or debt cancellation or debt suspension coverage is voluntary and can 
be excluded from the finance charge only if the consumer meets the 
product's age or employment eligibility criteria at the time of 
enrollment. To exclude such a premium or charge from the finance 
charge, the creditor must determine at the time of enrollment that the 
consumer is eligible for the product under the product's age or 
employment eligibility restrictions. The creditor may use reasonably 
reliable evidence of the consumer's age or employment status to satisfy 
this condition. Reasonably reliable evidence of a consumer's age would 
include using the date of birth on the consumer's credit application, 
on the driver's license or other government-issued identification, or 
on the credit report. Reasonably reliable evidence of a consumer's 
employment status would include the consumer's information on a credit 
application, an Internal Revenue Service Form W-2, tax returns, payroll 
receipts, or other evidence such as a letter or e-mail from the 
consumer or the consumer's employer. If the consumer does not meet the 
product's age or employment eligibility criteria at the time of 
enrollment, then the premium or charge is not voluntary. In such 
circumstances, the premium or charge is a finance charge. If the 
creditor offers a bundled product (such as credit life insurance 
combined with credit involuntary unemployment insurance) and the 
consumer is not eligible for all of the bundled products, then the 
creditor must either: (1) treat the entire premium or charge for the 
bundled product as a finance charge, or (2) offer the consumer the 
option of selecting only the products for which the consumer is 
eligible and exclude the premium or charge from the finance charge if 
the consumer chooses an optional product for which the consumer meets 
the age or employment eligibility criteria at the time of 
enrollment.[ltrif]
    4(d)(3) Voluntary debt cancellation or debt suspension fees.
    1. General. Fees charged for the specialized form of debt 
cancellation agreement known as guaranteed automobile protection 
(``GAP'') agreements must be disclosed according to Sec.  226.4(d)(3) 
rather than according to Sec.  226.4(d)(2) for property insurance.
    2. Disclosures. Creditors can comply with Sec.  226.4(d)(3) by 
providing a disclosure that refers to debt cancellation or debt 
suspension coverage whether or not the coverage is considered 
insurance. Creditors may use the model credit insurance disclosures 
only if the debt cancellation or debt suspension coverage constitutes 
insurance under State law. (See Model Clauses and Samples at G-16 and 
H-17 in Appendix G and Appendix H to part 226 for guidance on how to 
provide the disclosure required by Sec.  226.4(d)(3)(iii) for debt 
suspension products.)
    3. Multiple events. If debt cancellation or debt suspension 
coverage for two or more events is provided at a single charge, the 
entire charge may be excluded from the finance charge if at least one 
of the events is accident or loss

[[Page 43374]]

of life, health, or income and the conditions specified in Sec.  
226.4(d)(3) or, as applicable, Sec.  226.4(d)(4), are satisfied.
    4. Disclosures in programs combining debt cancellation and debt 
suspension features. If the consumer's debt can be cancelled under 
certain circumstances, the disclosure may be modified to reflect that 
fact. The disclosure could, for example, state (in addition to the 
language required by Sec.  226.4(d)(3)(iii)) that ``In some 
circumstances, my debt may be cancelled.'' However, the disclosure 
would not be permitted to list the specific events that would result in 
debt cancellation.
    4(d)(4) Telephone purchases.
    1. Affirmative request. A creditor would not satisfy the 
requirement to obtain a consumer's affirmative request if the 
``request'' was a response to a script that uses leading questions or 
negative consent. A question asking whether the consumer wishes to 
enroll in the credit insurance or debt cancellation or suspension plan 
and seeking a yes-or-no response (such as ``Do you want to enroll in 
this optional debt cancellation plan?'') would not be considered 
leading.
    4(e) Certain security interest charges.
    1. Examples.
    i. Excludable charges. Sums must be actually paid to public 
officials to be excluded from the finance charge under Sec.  
226.4(e)(1) and (e)(3). Examples are charges or other fees required for 
filing or recording security agreements, mortgages [rtrif](for open-end 
credit; but see Sec.  226.4(g) regarding closed-end mortgage 
credit)[ltrif], continuation statements, termination statements, and 
similar documents, as well as intangible property or other taxes even 
when the charges or fees are imposed by the state solely on the 
creditor and charged to the consumer (if the tax must be paid to record 
a security agreement). (See comment 4(a)-5 regarding the treatment of 
taxes, generally.)
    ii. Charges not excludable. If the obligation is between the 
creditor and a third party (an assignee, for example), charges or other 
fees for filing or recording security agreements, mortgages, 
continuation statements, termination statements, and similar documents 
relating to that obligation are not excludable from the finance charge 
under this section.
    2. Itemization. The various charges described in Sec.  226.4(e)(1) 
and (e)(3) may be totaled and disclosed as an aggregate sum, or they 
may be itemized by the specific fees and taxes imposed. If an aggregate 
sum is disclosed, a general term such as security interest fees or 
filing fees may be used.
    3. Notary fees. In order for a notary fee to be excluded under 
Sec.  226.4(e)(1), all of the following conditions must be met:
    i. The document to be notarized is one used to perfect, release, or 
continue a security interest.
    ii. The document is required by law to be notarized.
    iii. A notary is considered a public official under applicable law.
    iv. The amount of the fee is set or authorized by law.
    4. Non-filing insurance. The exclusion in Sec.  226.4(e)(2) is 
available only if non-filing insurance is purchased. If the creditor 
collects and simply retains a fee as a sort of ``self-insurance'' 
against non-filing, it may not be excluded from the finance charge. If 
the non-filing insurance premium exceeds the amount of the fees 
excludable from the finance charge under Sec.  226.4(e)(1), only the 
excess is a finance charge. For example:
    i. The fee for perfecting a security interest is $5.00 and the fee 
for releasing the security interest is $3.00. The creditor charges 
$10.00 for non-filing insurance. Only $8.00 of the $10.00 is excludable 
from the finance charge.
    4(f) Prohibited offsets.
    1. Earnings on deposits or investments. The rule that the creditor 
shall not deduct any earnings by the consumer on deposits or 
investments applies whether or not the creditor has a security interest 
in the property.
    [rtrif]4(g) Special rule; mortgage transactions.
    1. Applicability of commentary to mortgages. The staff commentary 
under Sec. Sec.  226.4(a)(2) and 226.4(c) through (e) (other than that 
under Sec. Sec.  226.4(c)(2), 226.4(c)(5), and 226.4(d)(2)) does not 
apply to closed-end transactions secured by real property or a 
dwelling. The staff commentary under Sec. Sec.  226.4(a) (other than 
paragraph (2) of that section), 226.4(c)(2), 226.4(c)(5), and 
226.4(d)(2), however, does apply to such transactions.
    2. Third-party charges. Charges imposed by third parties are 
finance charges if they fit the general definition under Sec.  
226.4(a). Thus, if a third-party charge is payable directly or 
indirectly by the consumer and imposed directly or indirectly by the 
creditor as an incident to the extension of credit, it is a finance 
charge unless it would be payable in a comparable cash transaction. For 
example, appraisal and credit report fees are finance charges because 
they meet the definition in Sec.  226.4(a). This test generally does 
not depend on whether the creditor requires the service for which the 
charge is imposed. In addition, charges imposed by closing agents 
required by the creditor, whether their own or those of third parties 
they retain, generally are finance charges unless otherwise excluded. 
(Note that Sec.  226.4(a)(2) does not apply to closed-end transactions 
secured by real property or a dwelling, pursuant to Sec.  226.4(g).) 
Insurance premiums generally are finance charges, whether imposed by a 
closing agent or another insurer, although premiums for property 
insurance are excluded if Sec.  226.4(d)(2) is satisfied. Premiums for 
credit insurance (or fees for debt cancellation or debt suspension 
agreements) and premiums for lender's coverage under a title insurance 
policy are finance charges because they are imposed as an incident to 
the extension of credit. In contrast, premiums for owner's title 
insurance coverage are not finance charges because they are not imposed 
as an incident to the extension of credit.
    3. Charges in comparable cash transactions. While the exclusions in 
Sec.  226.4(c) through (e), other than Sec. Sec.  226.4(c)(5) and 
226.4(d)(2) are inapplicable to closed-end transactions secured by real 
property or a dwelling, charges in connection with such transactions 
that are payable in a comparable cash transaction are not finance 
charges. See comment 4(a)-1. For example, property taxes and fees or 
taxes imposed to record the deed evidencing transfer from the seller to 
the buyer of title to the property securing the transaction are not 
finance charges because they would be paid even if no credit were 
extended to finance the purchase. In contrast, fees or taxes imposed to 
record the mortgage, deed of trust, or other security instrument 
evidencing the creditor's security interest in the property securing 
the transaction are finance charges because they would not be incurred 
were it not for the extension of credit.
* * * * *

Subpart C--Closed-End Credit

Sec.  226.17--General Disclosure Requirements.

17(a) Form of Disclosures

Paragraph 17(a)(1)

    1. Clear and conspicuous. This standard requires that disclosures 
be in a reasonably understandable form. For example, while the 
regulation requires no mathematical progression or format, the 
disclosures must be presented in a way that does not obscure the 
relationship of the terms to each other. In addition, although no 
minimum type size is mandated, the disclosures must be legible, whether 
typewritten, handwritten, or printed by computer.

[[Page 43375]]

    2. Segregation of disclosures. The disclosures may be grouped 
together and segregated from other information in a variety of ways. 
For example, the disclosures may appear on a separate sheet of paper or 
may be set off from other information on the contract or other 
documents:
    [][rtrif]i.[ltrif] By outlining them in a box
    [][rtrif]ii.[ltrif] By bold print dividing lines
    [][rtrif]iii.[ltrif] By a different color background
    [][rtrif]iv.[ltrif] By a different type style
    [(The general segregation requirement described in this 
subparagraph does not apply to the disclosures required under 
Sec. Sec.  226.19(b) and 226.20(c) although the disclosures must be 
clear and conspicuous.)]
    3. Location. The regulation imposes no specific location 
requirements on the segregated disclosures. For example:
    [][rtrif]i.[ltrif] They may appear on a disclosure 
statement separate from all other material.
    [][rtrif]ii.[ltrif] They may be placed on the same document 
with the credit contract or other information, so long as they are 
segregated from that information.
    [][rtrif]iii.[ltrif] They may be shown on the front or back 
of a document.
    [][rtrif]iv.[ltrif] They need not begin at the top of a 
page.
    [][rtrif]v.[ltrif] They may be continued from one page to 
another.
    4. Content of segregated disclosures. Footnotes 37 and 38 contain 
exceptions to the requirement that the disclosures under Sec.  226.18 
be segregated from material that is not directly related to those 
disclosures. Footnote 37 lists the items that may be added to the 
segregated disclosures, even though not directly related to those 
disclosures. Footnote 38 lists the items required under Sec.  226.18 
that may be deleted from the segregated disclosures and appear 
elsewhere. Any one or more of these additions or deletions may be 
combined and appear either together with or separate from the 
segregated disclosures. The itemization of the amount financed under 
Sec.  226.18(c), however, must be separate from the other segregated 
disclosures under Sec.  226.18. If a creditor chooses to include the 
security interest charges required to be itemized under Sec.  226.4(e) 
and Sec.  226.18(o) in the amount financed itemization, it need not 
list these charges elsewhere.
    5. Directly Related. [rtrif]Except in a transaction secured by real 
property or a dwelling, t[ltrif][T]he segregated disclosures may, at 
the creditor's option, include any information that is directly related 
to those disclosures. [rtrif](See the commentary to Sec.  226.37(a)(2) 
for a discussion of directly related information for transactions 
secured by real property or a dwelling.)[ltrif] The following is 
directly related information [rtrif]for a transaction not secured by 
real property or a dwelling[ltrif]:
    i. A description of a grace period after which a late payment 
charge will be imposed. For example, the disclosure given under Sec.  
226.18(l) may state that a late charge will apply to ``any payment 
received more than 15 days after the due date.''
    ii. A statement that the transaction is not secured. For example, 
the creditor may add a category labelled ``unsecured'' or ``not 
secured'' to the security interest disclosures given under Sec.  
226.18(m).
    iii. The basis for any estimates used in making disclosures. For 
example, if the maturity date of a loan depends solely on the 
occurrence of a future event, the creditor may indicate that the 
disclosures assume that event will occur at a certain time.
    iv. The conditions under which a demand feature may be exercised. 
For example, in a loan subject to demand after five years, the 
disclosures may state that the loan will become payable on demand in 
five years.
    v. An explanation of the use of pronouns or other references to the 
parties to the transaction. For example, the disclosures may state, 
```You' refers to the customer and `we' refers to the creditor.''
    vi. Instructions to the creditor or its employees on the use of a 
multiple-purpose form. For example, the disclosures may state, ``Check 
box if applicable.''
    vii. A statement that the borrower may pay a minimum finance charge 
upon prepayment in a simple-interest transaction. For example, when 
State law prohibits penalties, but would allow a minimum finance charge 
in the event of prepayment, the creditor may make the Sec.  
226.18(k)(1) disclosure by stating, ``You may be charged a minimum 
finance charge.''
    viii. A brief reference to negative amortization in variable-rate 
transactions. For example, in the variable-rate disclosures, the 
creditor may include a short statement such as ``Unpaid interest will 
be added to principal.'' (See the commentary to Sec.  
226.18(f)[(1)(iii)][rtrif](3)[ltrif].)
    ix. A brief caption identifying the disclosures. For example, the 
disclosures may bear a general title such as ``Federal Truth in Lending 
Disclosures'' or a descriptive title such as ``Real Estate Loan 
Disclosures.''
    x. A statement that a due-on-sale clause or other conditions on 
assumption are contained in the loan document. For example, the 
disclosure given under Sec.  226.18(q) may state, ``Someone buying your 
home may, subject to conditions in the due-on-sale clause contained in 
the loan document, assume the remainder of the mortgage on the original 
terms.''
    xi. If a State or Federal law prohibits prepayment penalties and 
excludes the charging of interest after prepayment from coverage as a 
penalty, a statement that the borrower may have to pay interest for 
some period after prepayment in full. The disclosure may state, for 
example, ``If you prepay your loan on other than the regular 
installment date, you may be assessed interest charges until the end of 
the month.''
    xii. More than one hypothetical example under Sec.  
226.18(f)[(1)(iv)][rtrif](4)[ltrif] in transactions with more than one 
variable-rate feature. For example, in a variable-rate transaction with 
an option permitting consumers to convert to a fixed-rate transaction, 
the disclosures may include an example illustrating the effects of an 
increase resulting from conversion in addition to the example 
illustrating an increase resulting from changes in the index.
    xiii. [rtrif]Reserved.[ltrif][The disclosures set forth under 
section 226.18(f)(1) for variable-rate transactions subject to section 
226.18(f)(2).]
    xiv. [rtrif][Reserved][ltrif][A statement whether or not a 
subsequent purchase of the property securing an obligation may be 
permitted to assume the remaining obligation on its original terms.]
    xv. A late-payment fee disclosure under Sec.  226.18(l) on a single 
payment loan.
    xvi. The notice set forth in [Sec.  226.19(a)(4)][rtrif]Sec.  
226.38(f)(1)[ltrif], in a closed-end transaction not subject to Sec.  
226.19(a)(1)(i). In a mortgage transaction subject to Sec.  
19(a)(1)(i), the creditor must disclose the notice contained in [Sec.  
226.19(a)(4)][rtrif]Sec.  226.38(f)(1)[ltrif] grouped together with the 
disclosures made under [Sec.  226.18. See comment 19(a)(4)-
1.][rtrif]Sec.  226.38.[ltrif]
    6. Multiple-purpose forms. [rtrif]Except for transactions secured 
by real property or a dwelling, t[ltrif][T]he creditor may design a 
disclosure statement that can be used for more than one type of 
transaction, so long as the required disclosures for individual 
transactions are clear and conspicuous. (See the Commentary to 
appendices G and H for a discussion of the treatment of disclosures 
that do not apply to specific transactions.) Any disclosure listed in 
Sec.  226.18 (except the itemization of the amount financed under Sec.  
226.18(c)) may

[[Page 43376]]

be included on a standard disclosure statement even though not all of 
the creditor's transactions include those features. For example, the 
statement may include:
    [][rtrif]i.[ltrif] The variable rate disclosure under Sec.  
226.18(f).
    [][rtrif]ii.[ltrif] The demand feature disclosure under 
Sec.  226.18(i).
    [][rtrif]iii.[ltrif] A reference to the possibility of a 
security interest arising from a spreader clause, under Sec.  
226.18(m).
    [ The assumption policy disclosure under Sec.  226.18(q).]
    [][rtrif]iv.[ltrif] The required deposit disclosure under 
Sec.  226.18(r).
    7. Balloon payment financing with leasing characteristics. In 
certain credit sale or loan transactions, a consumer may reduce the 
dollar amount of the payments to be made during the course of the 
transaction by agreeing to make, at the end of the loan term, a large 
final payment based on the expected residual value of the property. The 
consumer may have a number of options with respect to the final 
payment, including, among other things, retaining the property and 
making the final payment, refinancing the final payment, or 
transferring the property to the creditor in lieu of the final payment. 
Such transactions may have some of the characteristics of lease 
transactions subject to Regulation M, but are considered credit 
transactions where the consumer assumes the indicia of ownership, 
including the risks, burdens and benefits of ownership upon 
consummation. These transactions are governed by the disclosure 
requirements of this regulation instead of Regulation M. Creditors 
should not include in the segregated Truth in Lending disclosures 
additional information. Thus, disclosures should show the large final 
payment in the payment schedule and should not, for example, reflect 
the other options available to the consumer at maturity. [rtrif]For 
extensions of credit secured by real property or a dwelling, the large 
final payment in the payment schedule should be disclosed in accordance 
with the requirements under section 226.38(c), as applicable.[ltrif]
    Paragraph 17(a)(2).
    1. When disclosures must be more conspicuous. The following rules 
apply to the requirement that the terms annual percentage rate and 
finance charge be shown more conspicuously:
    [][rtrif]i.[ltrif] The terms must be more conspicuous only 
in relation to the other required disclosures under Sec.  226.18. For 
example, when the disclosures are included on the contract document, 
those 2 terms need not be more conspicuous as compared to the heading 
on the contract document or information required by State law.
    [][rtrif]ii.[ltrif] The terms need not be more conspicuous 
except as part of the finance charge and annual percentage rate 
disclosures under Sec.  226.18(d) and (e), although they may, at the 
creditor's option, be highlighted wherever used in the required 
disclosures. For example, the terms may, but need not, be highlighted 
when used in disclosing a prepayment penalty under Sec.  226.18(k) or a 
required deposit under Sec.  226.18(r).
    [][rtrif]iii.[ltrif] The creditor's identity under Sec.  
226.18(a) may, but need not, be more prominently displayed than the 
finance charge and annual percentage rate.
    [][rtrif]iv.[ltrif] The terms need not be more conspicuous 
than figures (including, for example, numbers, percentages, and dollar 
signs)
    2. Making disclosures more conspicuous. The terms finance charge 
and annual percentage rate may be made more conspicuous in any way that 
highlights them in relation to the other required disclosures. For 
example, they may be:
    [][rtrif]i.[ltrif] Capitalized when other disclosures are 
printed in capital and lower case.
    [][rtrif]ii.[ltrif] Printed in larger type, bold print or 
different type face.
    [][rtrif]iii.[ltrif] Printed in a contrasting color.
    [][rtrif]iv.[ltrif] Underlined.
    [][rtrif]v.[ltrif] Set off with asterisks.
    17(b) Time of disclosures.
    1. Consummation. As a general rule, disclosures must be made before 
``consummation'' of the transaction. The disclosures [rtrif]for 
transactions not secured by real property or a dwelling[ltrif] need not 
be given by any particular time before consummation[, except in certain 
mortgage transactions and variable-rate transactions secured by the 
consumer's principal dwelling with a term greater than one year under 
Sec.  226.19.][rtrif] Pre-consummation disclosures for transactions 
secured by real property or a dwelling must be provided in accordance 
with the timing requirements in Sec.  226.19.[ltrif] (See the 
commentary to Sec.  226.2(a)(13) regarding the definition of 
consummation.)
    2. Converting open-end to closed-end credit. Except for home equity 
plans subject to Sec.  226.5b in which the agreement provides for a 
repayment phase, if an open-end credit account is converted to a 
closed-end transaction under a written agreement with the consumer, the 
creditor must provide a set of closed-end credit disclosures before 
consummation of the closed-end transaction. ([rtrif]See the commentary 
to Sec.  226.19(a) for a discussion of disclosure timing requirements 
for closed-end transactions secured by real property or a 
dwelling.[ltrif] See the commentary to Sec.  226.19(b) for the timing 
rules for additional disclosures required upon the conversion to [a 
variable-rate transaction secured by a consumer's principal dwelling 
with a term greater than one year][rtrif]an adjustable-rate transaction 
secured by real property or a dwelling[ltrif].) If consummation of the 
closed-end transaction occurs at the same time as the consumer enters 
into the open-end agreement, the closed-end credit disclosures may be 
given at the time of conversion. If disclosures are delayed until 
conversion and the closed-end transaction has a variable-rate feature, 
disclosures should be based on the rate in effect at the time of 
conversion. (See the commentary to Sec.  226.5 regarding conversion of 
closed-end to open-end credit.)
    3. Disclosures provided on credit contracts. Creditors must give 
the required disclosures to the consumer in writing, in a form that the 
consumer may keep, before consummation of the transaction. See Sec.  
226.17(a)(1) and (b). Sometimes the disclosures are placed on the same 
document with the credit contract. Creditors are not required to give 
the consumer two separate copies of the document before consummation, 
one for the consumer to keep and a second copy for the consumer to 
execute. The disclosure requirement is satisfied if the creditor gives 
a copy of the document containing the unexecuted credit contract and 
disclosures to the consumer to read and sign; and the consumer receives 
a copy to keep at the time the consumer becomes obligated. It is not 
sufficient for the creditor merely to show the consumer the document 
containing the disclosures before the consumer signs and becomes 
obligated. The consumer must be free to take possession of and review 
the document in its entirety before signing.
    i. Example. To illustrate:
    A. A creditor gives a consumer a multiple-copy form containing a 
credit agreement and TILA disclosures. The consumer reviews and signs 
the form and returns it to the creditor, who separates the copies and 
gives one copy to the consumer to keep. The creditor has satisfied the 
disclosure requirement.
    17(c) Basis of disclosures and use of estimates.
    [Paragraph ]17(c)(1)[rtrif]Legal obligation[ltrif].
    1. [Legal obligation.][rtrif]General.[ltrif] The disclosures shall 
reflect the credit terms to which the parties are legally bound as of 
the outset of the transaction. In the case of disclosures required 
under

[[Page 43377]]

Sec.  226.20(c), the disclosures shall reflect the credit terms to 
which the parties are legally bound when the disclosures are provided. 
The legal obligation is determined by applicable State law or other 
law. [rtrif]The disclosures should be based on the assumption that the 
consumer will abide by the terms of the legal obligation throughout the 
term of the transaction. For example, the disclosures should be based 
on the assumption that the consumer makes payments on time and in full. 
In the case of an adjustable-rate mortgage described in Sec.  
226.38(a)(3)(i)(A), the creditor shall make the disclosure required by 
Sec.  226.38(c) based on the assumption that the interest rate 
increases as fast as it can, taking into account any limitations on 
increases under the legal obligation.[ltrif] (Certain transactions are 
specifically addressed in this commentary. See, for example, the 
discussion of buydown transactions elsewhere in the commentary to Sec.  
226.17(c).)
    [][rtrif]i.[ltrif] The fact that a term or contract may 
later be deemed unenforceable by a court on the basis of equity or 
other grounds does not, by itself, mean that disclosures based on that 
term or contract did not reflect the legal obligation.
    2. Modification of obligation. The legal obligation normally is 
presumed to be contained in the note or contract that evidences the 
agreement. But this presumption is rebutted if another agreement 
between the parties legally modifies that note or contract. If the 
parties informally agree to a modification of the legal obligation, the 
modification should not be reflected in the disclosures unless it rises 
to the level of a change in the terms of the legal obligation. For 
example:
    [][rtrif]i.[ltrif] If the creditor offers a preferential 
rate, such as an employee preferred rate, the disclosures should 
reflect the terms of the legal obligation[rtrif], subject to special 
disclosure rules for transactions secured by real property or a 
dwelling in Sec.  226.38(a)(3) and (c)[ltrif]. [(See the commentary to 
Sec.  226.19(b) for an example of a preferred-rate transaction that is 
a variable-rate transaction.)]
    [][rtrif]ii.[ltrif] If the contract provides for a certain 
monthly payment schedule but payments are made on a voluntary payroll 
deduction plan or an informal principal-reduction agreement, the 
disclosures should reflect the schedule in the contract.
    [][rtrif]iii.[ltrif] If the contract provides for regular 
monthly payments but the creditor informally permits the consumer to 
defer payments from time to time, for instance, to take account of 
holiday seasons or seasonal employment, the disclosures should reflect 
the regular monthly payments.
    [rtrif]3. Number of transactions. Creditors have flexibility in 
handling credit extensions that may be viewed as multiple transactions. 
For example:
    i. When a creditor finances the credit sale of a radio and a 
television on the same day, the creditor may disclose the sales as 
either 1 or 2 credit sale transactions.
    ii. When a creditor finances a loan along with a credit sale of 
health insurance, the creditor may disclose in one of several ways: a 
single credit sale transaction, a single loan transaction, or a loan 
and a credit sale transaction.
    iii. The separate financing of a downpayment in a credit sale 
transaction may, but need not, be disclosed as 2 transactions (a credit 
sale and a separate transaction for the financing of the 
downpayment).[ltrif]
    [3. Third-party buydown.][rtrif]17(c)(1)(i) Buydowns.
    1. Third-party buydown.[ltrif] In certain transactions, a seller or 
other third party may pay an amount, either to the creditor or to the 
consumer, in order to reduce the consumer's payments or buy down the 
interest rate for all or a portion of the credit term. For example, a 
consumer and a bank agree to a mortgage with an interest rate of 15% 
and level payments over 25 years. By a separate agreement, the seller 
of the property agrees to subsidize the consumer's payments for the 
first 2 years of the mortgage, giving the consumer an effective rate of 
12% for that period.
    [][rtrif]i.[ltrif] If the lower rate is reflected in the 
credit contract between the consumer and the bank, the disclosures must 
take the buydown into account. For example, the annual percentage rate 
must be a composite rate that takes account of both the lower initial 
rate and the higher subsequent rate, and if the loan is not secured by 
real property or a dwelling, the payment schedule disclosures must 
reflect the 2 payment levels. However, the amount paid by the seller 
would not be specifically reflected in the disclosures given by the 
bank, since that amount constitutes seller's points and thus is not 
part of the finance charge.
    [][rtrif]ii.[ltrif] If the lower rate is not reflected in 
the credit contract between the consumer and the bank and the consumer 
is legally bound to the 15% rate from the outset, the disclosures given 
by the bank must not reflect the seller buydown in any way. For 
example, the annual percentage rate and, in a transaction not secured 
by real property, the payment schedule, would not take into account the 
reduction in the interest rate and payment level for the first 2 years 
resulting from the buydown.
    [4.][rtrif]2.[ltrif] Consumer buydowns. In certain transactions, 
the consumer may pay an amount to the creditor to reduce the payments 
or obtain a lower interest rate on the transaction. Consumer buydowns 
must be reflected in the disclosures given for that transaction. To 
illustrate, in a mortgage transaction, the creditor and consumer agree 
to a note specifying a 14 percent interest rate. However, in a separate 
document, the consumer agrees to pay an amount to the creditor at 
consummation in return for a reduction in the interest rate to 12 
percent for a portion of the mortgage term. The amount paid by the 
consumer may be deposited in an escrow account or may be retained by 
the creditor. Depending upon the buydown plan, the consumer's 
prepayment of the obligation may or may not result in a portion of the 
amount being credited or refunded to the consumer. In the disclosures 
given for the mortgage, the creditor must reflect the terms of the 
buydown agreement. For example:
    [][rtrif]i.[ltrif] The amount paid by the consumer is a 
prepaid finance charge [(][rtrif],[ltrif] even if deposited in an 
escrow account[)]. [rtrif](In transactions secured by real property or 
a dwelling, ``finance charges'' are referred to as ``interest and 
settlement charges'' under Sec.  226.38(e)(5)(ii).)[ltrif]
    [][rtrif]ii.[ltrif] A composite annual percentage rate must 
be calculated, taking into account both interest rates, as well as the 
effect of the prepaid finance charge.
    [][rtrif]iii.[ltrif] The payment schedule must reflect the 
multiple payment levels resulting from a buydown[rtrif], in a 
transaction not secured by real property or a dwelling[ltrif].
    [rtrif]3. Lender buydown.[ltrif] The rules regarding consumer 
buydowns do not apply to transactions known as ``lender buydowns.'' In 
lender buydowns. a creditor pays an amount (either into an account or 
to the party to whom the obligation is sold) to reduce the consumer's 
payments or interest rate for all or a portion of the credit term. 
Typically, these transactions are structured as a buydown of the 
interest rate during an initial period of the transaction with a higher 
than usual rate for the remainder of the term. The disclosures for 
lender buydowns should be based on the terms of the legal obligation 
between the consumer and the creditor. See comment [17(c)(1)-
3][rtrif]17(c)(1)(i)-1[ltrif] for the analogous rules concerning third-
party buydowns.

[[Page 43378]]

    [5.][rtrif]4.[ltrif] Split buydowns. In certain transactions, a 
third party (such as a seller) and a consumer both pay an amount to the 
creditor to reduce the interest rate. The creditor must include the 
portion paid by the consumer in the finance charge and disclose the 
corresponding multiple payment levels and composite annual percentage 
rate. The portion paid by the third party and the corresponding 
reduction in interest rate, however, should not be reflected in the 
disclosures unless the lower rate is reflected in the credit contract. 
See the discussion on third-party and consumer buydown transactions 
[elsewhere in the commentary to Sec.  226.17(c)][rtrif]in comments 
17(c)(1)(i)-1 and 17(c)(1)(i)-2, respectively[ltrif].
    [rtrif]17(c)(1)(ii) Wrap-around financing.[ltrif]
    [6. Wraparound financing.][rtrif]1. General.[ltrif] Wrap-around 
transactions, usually loans, involve the creditor's wrapping the 
outstanding balance on an existing loan and advancing additional funds 
to the consumer. The pre-existing loan, which is wrapped, may be to the 
same consumer or to a different consumer. In either case, the consumer 
makes a single payment to the new creditor, whom makes the payments on 
the pre-existing loan to the original creditor. Wrap-around loans or 
sales are considered new single-advance transactions, with an amount 
financed equaling the sum of the new funds advanced by the wrap 
creditor and the remaining principal owed to the original creditor on 
the pre-existing loan. In disclosing the itemization of the amount 
financed, the creditor may use a label such as ``the amount that will 
be paid to creditor X'' to describe the remaining principal balance on 
the pre-existing loan. This approach to Truth in Lending calculations 
has no effect on calculations required by other statutes, such as State 
usury laws.
    [7.][rtrif]2.[ltrif] Wrap-around financing with balloon payments. 
For wrap-around transactions involving a large final payment of the new 
funds before the maturity of the pre-existing loan, the amount financed 
is the sum of the new funds and the remaining principal on the pre-
existing loan. The disclosures should be based on the shorter term of 
the wrap loan, with a large final payment of both the new funds and the 
total remaining principal on the pre-existing loan (although only the 
wrap loan will actually be paid off at that time).
    [rtrif]17(c)(1)(iii) Variable- or adjustable-rate 
transactions.[ltrif]
    [8.][rtrif]1.[ltrif] Basis of disclosures [in variable-rate 
transactions]. The disclosures for a variable-[rtrif]or adjustable-
[ltrif] rate transaction must be given for the full term of the 
transaction and must be based on the terms in effect at the time of 
consummation. Creditors [rtrif]generally[ltrif] should base the 
disclosures only on the initial rate and should not assume that this 
rate will increase [rtrif](except as provided in Sec.  226.38(c) for 
transactions secured by real property or a dwelling)[ltrif]. For 
example, in a [rtrif]a variable- or adjustable-rate[ltrif] loan with an 
initial [rtrif]interest[ltrif] rate of 10 percent and a 5 percentage 
points rate cap, creditors should base the disclosures on the initial 
rate and should not assume that the rate will increase 5 percentage 
points. However, in a variable-rate transaction with a seller buydown 
that is reflected in the credit contract, a consumer buydown, or a 
discounted or premium rate, disclosures should be a composite rate 
based on the rate in effect during the initial period and the rate that 
is the basis of the variable-rate feature for the remainder of the 
term. (See the commentary to section 226.17(c)[rtrif](1)[ltrif] for a 
discussion of buydown, discounted, and premium transactions and the 
commentary to section 226.19(a)(2) for a discussion of [the] 
redisclosure in [certain mortgage transactions with a variable-rate] 
[rtrif]transactions secured by real property or a dwelling with an 
adjustable-rate[ltrif] feature.
    [9.][rtrif]2.[ltrif] Use of estimates in variable-[rtrif]or 
adjustable-[ltrif]rate transactions. The variable- [rtrif]or 
adjustable-[ltrif] rate feature does not, by itself, make the 
disclosures estimates.
    [10.][rtrif]3.[ltrif] Discounted and premium variable-[rtrif]or 
adjustable-[ltrif]rate transactions. In some variable-[rtrif]or 
adjustable-[ltrif]rate transactions, creditors may set an initial 
interest rate that is not determined by the index or formula used to 
make later interest rate adjustments. Typically, this initial rate 
charged to consumers is lower than the rate would be if it were 
calculated using the index or formula. However, in some cases the 
initial rate may be higher. In a discounted transaction, for example, a 
creditor may calculate interest rates according to a formula using the 
six-month Treasury bill rate plus a 2 percent margin. If the Treasury 
bill rate at consummation is 10 percent, the creditor may forgo the 2 
percent spread and charge only 10 percent for a limited time, instead 
of setting an initial rate of 12 percent.
    i. When creditors use an initial interest rate that is not 
calculated using the index or formula for later rate adjustments, the 
disclosures should reflect a composite annual percentage rate based on 
the initial rate for as long as it is charged and, for the remainder of 
the term, the rate that would have been applied using the index or 
formula at the time of consummation. The interest rate at consummation 
need not be used if a contract provides for a delay in the 
implementation of changes in an index value. For example, if the 
contract specifies that interest rate changes are based on the index 
value in effect 45 days before the [rtrif]interest rate[ltrif] change 
date, creditors may use any index value in effect during the 45[rtrif]-
[ltrif]day period before consummation in calculating a composite annual 
percentage rate.
    ii. The effect of the multiple rates must also be reflected in the 
calculation and disclosure of the finance charge, total of payments, 
and payment schedule. [rtrif](In transactions secured by real property 
or a dwelling, creditors disclose the ``interest and settlement 
charges'' rather than the ``finance charge'' and the ``payment 
summary'' rather than the ``payment schedule.'' See Sec.  226.38(c) and 
(e)(5).[ltrif]
    iii. If a loan contains a rate or payment cap that would prevent 
the initial rate or payment, at the time of the first adjustment, from 
changing to the rate determined by the index or formula at 
consummation, the effect of that rate or payment cap should be 
reflected in the disclosures.
    iv. Because these transactions involve irregular payment amounts, 
an annual percentage rate tolerance of \14\; of 1 percent applies, in 
accordance with Sec.  226.22(a)(3).
    v. Examples of discounted [variable][rtrif]adjustable[ltrif]-rate 
transactions [rtrif]secured by real property or a dwelling[ltrif] 
include:
    A. A 30-year loan for $100,000 with no prepaid [finance 
charges][rtrif]interest and settlement charges[ltrif] and rates 
determined by the Treasury bill rate plus 2 percent. Rate and payment 
adjustments are made annually. Although the Treasury bill rate at the 
time of consummation is 10 percent, the creditor sets the interest rate 
for one year at 9 percent, instead of 12 percent according to the 
formula. The disclosures should reflect a composite annual percentage 
rate of 11.63 percent based on 9 percent for one year and 12 percent 
for 29 years. [Reflecting those two rate levels, the payment schedule 
should show 12 payments of $804.62 and 348 payments of $1,025.31.] The 
[finance charge][rtrif]interest and settlement charges[ltrif] should be 
$266,463.32 and the total of payments $366,463.32.
    B. Same loan as above, except with a 2 percent rate cap on periodic 
adjustments. The disclosures should reflect a composite annual 
percentage

[[Page 43379]]

rate of 11.53 percent based on 9 percent for the first year, 11 percent 
for the second year, and 12 percent for the remaining 28 years. 
[Reflecting those three rate levels, the payment schedule should show 
12 payments of $804.62, 12 payments of $950,09, and 336 payments of 
$365,234.76.] The [finance charge][rtrif]interest and settlement 
charges[ltrif] should be $265,234.76 and the total of payments should 
be $365,234.76.
    C. Same loan as above, except with a 7\1/2\; percent cap on payment 
adjustments. The disclosures should reflect a composite annual 
percentage rate of 11.64 percent, based on 9 percent for one year and 
12 percent for 29 years. [Because of the payment cap, five levels of 
payments should be reflected.] The [finance charge][rtrif]interest and 
settlement charges[ltrif] should be $277,040.60, and the total of 
payments $377,040.60.
    vi. A loan in which the initial interest rate is set according to 
the index or formula used for later adjustments but is not set at the 
value of the index or formula at consummation is not a discounted or 
premium variable-[rtrif]or adjustable-[ltrif]rate loan. For example, if 
a creditor commits to an initial rate based on the formula on a date 
prior to consummation, but the index has moved during the period 
between that time and consummation, a creditor should base its 
disclosures on the initial rate.
    [11. Examples of variable-rate transactions.] [rtrif]4. General. In 
general, v[ltrif][V]ariable-rate transactions include:
    [][rtrif]i.[ltrif] Renewable balloon-payment instruments 
[rtrif]with a fixed interest rate[ltrif] where the creditor is both 
unconditionally obligated to renew the balloon-payment loan at the 
consumer's option (or is obligated to renew subject to conditions 
within the consumer's control) and has the option of increasing the 
interest rate at the time of renewal. [rtrif](However, a transaction 
secured by real property or a dwelling with a balloon payment and a 
fixed interest rate must be disclosed as a fixed-rate transaction under 
Sec.  226.38(a)(3) whether or not the transaction is renewable.)[ltrif] 
Disclosures must be based on the payment amortization (unless the 
specified term of the obligation with renewals is shorter) and on the 
rate in effect at the time of consummation of the transaction. 
(Examples of conditions within a consumer's control include 
requirements that a consumer be current in payments or continue to 
reside in the mortgaged property. In contrast, setting a limit on the 
rate at which the creditor would be obligated to renew or reserving the 
right to change the credit standards at the time of renewal are 
examples of conditions outside a consumer's control.) If, however, a 
creditor is not obligated to renew as described above, disclosures must 
be based on the term of the balloon-payment loan. Disclosures also must 
be based on the term of the balloon-payment loan in balloon-payment 
instruments in which the legal obligation provides that the loan will 
be renewed by a ``refinancing'' of the obligation, as that term is 
defined by Sec.  226.20(a). If it cannot be determined from the legal 
obligation that the loan will be renewed by a ``refinancing,'' 
disclosures must be based either on the term of the balloon-payment 
loan or on the payment amortization, depending on whether the creditor 
is unconditionally obligated to renew the loan as described above. 
(This discussion does not apply to construction loans subject to Sec.  
226.17(c)(6).)
    [ ``Shared-equity'' or ``shared-appreciation'' mortgages 
that have a fixed rate of interest and an appreciation share based on 
the consumer's equity in the mortgaged property, in a transaction not 
secured by real property or a dwelling. The appreciation share is 
payable in a lump sum at a specified time. Disclosures must be based on 
the fixed interest rate. (As discussed in the commentary to Sec.  
226.2, other types of shared-equity arrangements are not considered 
``credit'' and are not subject to Regulation Z.)]
    [][rtrif]ii.[ltrif] Preferred-rate loans where the terms of 
the legal obligation provide that the initial underlying rate is fixed 
but will increase upon the occurrence of some event, such as an 
employee leaving the employ of the creditor, and the note reflects the 
preferred rate. The disclosures are to be based on the preferred rate.
    [ Graduated-payment mortgages and step-rate transactions 
without a variable-rate feature are not considered variable-rate 
transactions. ``Shared-equity'' or ``shared-appreciation'' mortgages 
are not considered variable-rate transactions.]
    [][rtrif]iii.[ltrif] ``Price level adjusted mortgages'' or 
other indexed mortgages that have a fixed rate of interest but provide 
for periodic adjustments to payments and the loan balance to reflect 
changes in an index measuring prices or inflation. Disclosures are to 
be based on the fixed interest rate.
    [rtrif]5. Not variable- or adjustable-rate transactions. Graduated-
payment mortgages and step-rate transactions without a variable-rate 
feature are not considered variable- or adjustable-rate 
transactions.[ltrif]
    [12.][rtrif] 6.[ltrif] Graduated-payment adjustable-rate mortgage. 
Graduated payment adjustable rate mortgages involve both [a 
variable][rtrif]an adjustable[ltrif] interest rate and scheduled 
[variations][rtrif]adjustments[ltrif] in payment amounts during the 
loan term. For example, under these plans, a series of graduated 
payments may be scheduled before rate adjustments affect payment 
amounts, or the initial scheduled payment may remain constant for a set 
period before rate adjustments affect the payment amount. In any case, 
the initial payment amount may be insufficient to cover the scheduled 
interest, causing negative amortization from the outset of the 
transaction. In these transactions, the disclosures should treat these 
features as follows:
    [][rtrif]i.[ltrif] The finance charge includes the amount 
of negative amortization based on the assumption that the rate in 
effect at consummation remains unchanged.
    [][rtrif]ii.[ltrif] The amount financed does not include 
the amount of negative amortization.
    [][rtrif]iii.[ltrif] As in any variable- [rtrif]or 
adjustable-[ltrif] rate transaction, the annual percentage rate is 
based on the terms in effect at consummation.
    [ The schedule of payments discloses the amount of any 
scheduled initial payments followed by an adjusted level of payments 
based on the initial interest rate. Since some mortgage plans contain 
limits on the amount of the payment adjustment, the payment schedule in 
a transaction not secured by real property or a dwelling, or payment 
summary, in a transaction secured by real property or a dwelling may 
require several different levels of payments, even with the assumption 
that the original interest rate does not increase.]
    [13.][rtrif]7.[ltrif] Growth-equity mortgages. [rtrif]Growth-equity 
mortgages, a[ltrif][A]lso referred to as payment-escalated mortgages, 
[these mortgage plans involve] scheduled payment increases to 
prematurely amortize the loan. The initial payment amount is determined 
as for a long-term loan with a fixed interest rate. Payment increases 
are scheduled periodically, based on changes in an index. The larger 
payments result in accelerated amortization of the loan. In disclosing 
these mortgage plans, creditors [may either--
     Estimate][rtrif]must estimate[ltrif] the amount of payment 
increases, based on the best information reasonably available[, or
     Disclose by analogy to the variable-rate disclosures in 
section 226.18(f)(1)]. (This discussion does not apply to growth-equity 
mortgages in which the

[[Page 43380]]

amount of payment increases can be accurately determined at the time of 
disclosure. For these mortgages, [as for graduated-payment mortgages,] 
disclosures should reflect the scheduled increases in payments.)
    [14. Reverse mortgages.][rtrif]17(c)(1)(iv) Repayment upon 
occurrence of future event.[ltrif]
    [rtrif]1. General.[ltrif] Reverse mortgages, also known as reverse 
annuity or home equity conversion mortgages, typically involve the 
disbursement of monthly advances to the consumer for a fixed period or 
until the occurrence of an event such as the consumer's death. 
Repayment of the loan (generally a single payment of principal and 
accrued interest) may be required to be made at the end of the 
disbursements or, for example, upon the death of the consumer. 
[rtrif](However, a reverse mortgage is covered by Sec.  226.33 only if 
the consumer's death is one of the conditions of repayment, as provided 
under Sec.  226.33(a).)[ltrif] In disclosing these transactions, 
creditors must apply the following rules, as applicable:
    [][rtrif]i.[ltrif] If the reverse mortgage has a specified 
period for disbursements but repayment is due only upon the occurrence 
of a future event such as the death of the consumer, the creditor must 
assume that disbursements will be made until they are scheduled to end. 
The creditor must assume repayment will occur when disbursements end 
(or within a period following the final disbursement which is not 
longer than the regular interval between disbursements). This 
assumption should be used even though repayment may occur before or 
after the disbursements are scheduled to end. In such cases, the 
creditor may include a statement such as ``The disclosures assume that 
you will repay the loan at the time our payments to you end. As 
provided in your agreement, your repayment may be required at a 
different time.''
    [][rtrif]ii.[ltrif] If the reverse mortgage has neither a 
specified period for disbursements nor a specified repayment date and 
these terms will be determined solely by reference to future events 
including the consumer's death, the creditor may assume that the 
disbursements will end upon the consumer's death (estimated by using 
actuarial tables, for example) and that repayment will be required at 
the same time (or within a period following the date of the final 
disbursement which is not longer than the regular interval for 
disbursements). Alternatively, the creditor may base the disclosures 
upon another future event it estimates will be most likely to occur 
first. (If terms will be determined by reference to future events which 
do not include the consumer's death, the creditor must base the 
disclosures upon the occur[rtrif]r[ltrif]ence of the event estimated to 
be most likely to occur first.)
    [][rtrif]iii.[ltrif] In making the disclosures, the 
creditor must assume that all disbursements and accrued interest will 
be paid by the consumer. For example, if the note has a nonrecourse 
provision providing that the consumer is not obligated for an amount 
greater than the value of the house, the creditor must nonetheless 
assume that the full amount to be disbursed will be repaid. In this 
case, however, the creditor may include a statement such as ``The 
disclosures assume full repayment of the amount advanced plus accrued 
interest, although the amount you may be required to pay is limited by 
your agreement.''
    [][rtrif]iv.[ltrif] Some reverse mortgages provide that 
some or all of the appreciation in the value of the property will be 
shared between the consumer and the creditor. [Such loans are 
considered variable-rate mortgages, as described in comment 17(c)(1)-
11, and the appreciation feature must be disclosed in accordance with 
Sec.  226.18(f)(1). If the reverse mortgage has a variable interest 
rate, is written for a term greater than one year, and is secured by 
the consumer's principal dwelling, the shared appreciation feature must 
be described under Sec.  226.19(b)(2)(vii).][rtrif]If the reverse 
mortgage has an adjustable interest rate and is secured by real 
property or a dwelling, the creditor must disclose the shared-equity or 
shared-appreciation feature as required by Sec. Sec.  226.19(b)(3)(iii) 
and 226.38(d)(2)(iii).[ltrif]
    [15. Morris Plan transactions. When a deposit account is created 
for the sole purpose of accumulating payments and then is applied to 
satisfy entirely the consumer's obligation in the transaction, each 
deposit made into the account is considered the same as a payment on a 
loan for purposes of making disclosures.
    16. Number of transactions. Creditors have flexibility in handling 
credit extensions that may be viewed as multiple transactions. For 
example:
     When a creditor finances the credit sale of a radio and a 
television on the same day, the creditor may disclose the sales as 
either 1 or 2 credit sale transactions.
     When a creditor finances a loan along with a credit sale 
of health insurance, the creditor may disclose in one of several ways: 
a single credit sale transaction, a single loan transaction, or a loan 
and a credit sale transaction.
     The separate financing of a downpayment in a credit sale 
transaction may, but need not, be disclosed as 2 transactions (a credit 
sale and a separate transaction for the financing of the downpayment).]
    [17. Special rules for tax refund anticipation 
loans.][rtrif]17(c)(1)(v) Tax refund-anticipation loan.[ltrif]
    [rtrif]1. General.[ltrif] Tax refund loans, also known as refund 
anticipation loans (RALs), are transactions in which a creditor will 
lend up to the amount of a consumer's expected tax refund. RAL 
agreements typically require repayment upon demand, but also may 
provide that repayment is required when the refund is made. The 
agreements also typically provide that if the amount of the refund is 
less than the payment due, the consumer must pay the difference. 
Repayment often is made by a preauthorized offset to a consumer's 
account held with the creditor when the refund has been deposited by 
electronic transfer. Creditors may charge fees for RALs in addition to 
fees for filing the consumer's tax return electronically. In RAL 
transactions subject to the regulation the following special rules 
apply:
    [][rtrif]i.[ltrif] If, under the terms of the legal 
obligation, repayment of the loan is required when the refund is 
received by the consumer (such as by deposit into the consumer's 
account), the disclosures should be based on the creditor's estimate of 
the time the refund will be delivered even if the loan also contains a 
demand clause. The practice of a creditor to demand repayment upon 
delivery of refunds does not determine whether the legal obligation 
requires that repayment be made at that time; this determination must 
be made according to applicable State or other law. (See comment 
17(c)(5)-1 for the rules regarding disclosures if the loan is payable 
solely on demand or is payable either on demand or on an alternate 
maturity date.)
    [][rtrif]ii.[ltrif] If the consumer is required to repay 
more than the amount borrowed, the difference is a finance charge 
unless excluded under Sec.  226.4. In addition, to the extent that any 
fees charged in connection with the loan (such as for filing the tax 
return electronically) exceed those fees for a comparable cash 
transaction (that is, filing the tax return electronically without a 
loan), the difference must be included in the finance charge.
    [18.][rtrif]17(c)(1)(vi)[ltrif] Pawn transactions.
    [rtrif]1. General.[ltrif] When, in connection with an extension of 
credit, a consumer pledges or sells an item to a pawnbroker

[[Page 43381]]

creditor in return for a sum of money and retains the right to redeem 
the item for a greater sum (the redemption price) within a specified 
period of time, disclosures are required. In addition to other 
disclosure requirements that may be applicable under Sec.  226.18, for 
purposes of pawn transactions:
    i. The amount financed is the initial sum paid to the consumer. The 
pawnbroker creditor need not provide a separate itemization of the 
amount financed if that entire amount is paid directly to the consumer 
and the disclosed description of the amount financed is ``the amount of 
cash given directly to you'' or a similar phrase.
    ii. The finance charge is the difference between the initial sum 
paid to the consumer and the redemption price plus any other finance 
charges paid in connection with the transaction. (See Sec.  226.4.)
    iii. The term of the transaction, for calculating the annual 
percentage rate, is the period of time agreed to by the pawnbroker 
creditor and the consumer. The term of the transaction does not include 
a grace period (including any statutory grace period) after the agreed 
redemption date.
    Paragraph 17(c)(2)(i).
    1. Basis for estimates. Disclosures may be estimated when the exact 
information is unknown at the time disclosures are made[rtrif], except 
that creditors may not provide estimated disclosures in disclosures 
required by Sec.  226.19(a)(2)(ii) and (iii)[ltrif]. Information is 
unknown if it is not reasonably available to the creditor at the time 
the disclosures are made. The ``reasonably available'' standard 
requires that the creditor, acting in good faith, exercise due 
diligence in obtaining information. For example, the creditor must at a 
minimum utilize generally accepted calculation tools, but need not 
invest in the most sophisticated computer program to make a particular 
type of calculation. The creditor normally may rely on the 
representations of other parties in obtaining information. For example, 
the creditor might look to the consumer for the time of consummation, 
to insurance companies for the cost of insurance, or to realtors for 
taxes and escrow fees. The creditor may utilize estimates in making 
disclosures even though the creditor knows that more precise 
information will be available by the point of consummation. However, 
new disclosures may be required under Sec.  226.17(f) or Sec.  226.19.
    2. Labelling estimates. Estimates must be designated as such in the 
segregated disclosures[rtrif], except that creditors may not provide 
estimated disclosures in the disclosures required by Sec.  
226.19(a)(2)(ii) and (iii)[ltrif]. Even though other disclosures are 
based on the same assumption on which a specific estimated disclosure 
was based, the creditor has some flexibility in labelling the 
estimates. Generally, only the particular disclosure for which the 
exact information is unknown is labelled as an estimate. However, when 
several disclosures are affected because of the unknown information, 
the creditor has the option of labelling either every affected 
disclosure or only the disclosure primarily affected. For example, when 
the finance charge is unknown because the date of consummation is 
unknown, the creditor must label the finance charge as an estimate and 
may also label as estimates the total of payments and the payment 
schedule. When many [rtrif]numerical[ltrif] disclosures are estimates, 
the creditor may use a general statement, such as ``all numerical 
disclosures except the late payment disclosure are estimates,'' as a 
method to label those disclosures as estimates.
    3. Simple-interest transactions. If consumers do not make timely 
payments in a simple-interest transaction, some of the amounts 
calculated for Truth in Lending disclosures will differ from amounts 
that consumers will actually pay over the term of the transaction. 
Creditors may label disclosures as estimates in these 
transactions[.][rtrif]except as otherwise provided by Sec.  
226.19(a)(2). (See the commentary on Sec.  226.19(a)(2) for a 
discussion of circumstances where creditors may not disclose estimates 
for transactions secured by real property or a dwelling.)[ltrif] For 
example, because the finance charge and total of payments may be larger 
than disclosed if consumers make late payments, creditors may label the 
finance charge and total of payments as estimates. On the other hand, 
creditors may choose not to label disclosures as estimates[rtrif]. In 
all cases, creditors[ltrif] [and] may base [all] disclosures on the 
assumption that payments will be made on time [rtrif]and in the amounts 
required by the terms of the legal obligation,[ltrif] disregarding any 
possible [inaccuracies][rtrif]differences[ltrif] resulting from 
consumers' payment patterns.

Paragraph 17(c)(2)(ii)

    1. Per diem interest. This paragraph applies to any numerical 
amount (such as the finance charge, annual percentage rate, or payment 
amount) that is affected by the amount of the per-diem interest charge 
that will be collected at consummation. If the amount of per-diem 
interest used in preparing the disclosures for consummation is based on 
the information known to the creditor at the time the disclosure 
document is prepared, the disclosures are considered accurate under 
this rule, and affected disclosures are also considered accurate, even 
if the disclosures are not labeled as estimates. For example, if the 
amount of per-diem interest used to prepare disclosures is less than 
the amount of per-diem interest charged at consummation, and as a 
result the finance charge is understated by $200, the disclosed finance 
charge is considered accurate even though the understatement is not 
within the $100 tolerance of Sec.  226.18(d)(1), and the finance charge 
was not labeled as an estimate. In this example, if in addition to the 
understatement related to the per-diem interest, a $90 fee is 
incorrectly omitted from the finance charge, causing it to be 
understated by a total of $290, the finance charge is considered 
accurate because the $90 fee is within the tolerance in Sec.  
226.18(d)(1).

Paragraph 17(c)(3)

    1. Minor variations. Section 226.17(c)(3) allows creditors to 
disregard certain factors in calculating and making disclosures. For 
example:
    [][rtrif]i.[ltrif] Creditors may ignore the effects of 
collecting payments in whole cents. Because payments cannot be 
collected in fractional cents, it is often difficult to amortize 
exactly an obligation with equal payments; the amount of the last 
payment may require adjustment to account for the rounding of the other 
payments to whole cents.
    [][rtrif]ii.[ltrif] Creditors may base their disclosures on 
calculation tools that assume that all months have an equal number of 
days, even if their practice is to take account of the variations in 
months for purposes of collecting interest. For example, a creditor may 
use a calculation tool based on a 360-day year, when it in fact 
collects interest by applying a factor of 1/365 of the annual rate to 
365 days. This rule does not, however, authorize creditors to ignore, 
for disclosure purposes, the effects of applying 1/360 of an annual 
rate to 365 days.
    2. Use of special rules. A creditor may utilize the special rules 
in Sec.  226.17(c)(3) for purposes of calculating and making all 
disclosures for a transaction or may, at its option, use the special 
rules for some disclosures and not others.
    Paragraph 17(c)(4).
    1. Payment schedule irregularities. When one or more payments in a 
transaction differ from the others because of a long or short first 
period, the variations may be ignored in disclosing the payment 
schedule,

[[Page 43382]]

finance charge, annual percentage rate, and other terms. For example:
    [][rtrif]i.[ltrif] A 36-month auto loan might be 
consummated on June 8 with payments due on July 1 and the first of each 
succeeding month. The creditor may base its calculations on a payment 
schedule that assumes 36 equal intervals and 36 equal installment 
payments, even though a precise computation would produce slightly 
different amounts because of the shorter first period.
    [][rtrif]ii.[ltrif] By contrast, in the same example, if 
the first payment were not scheduled until August 1, the irregular 
first period would exceed the limits in Sec.  226.17(c)(4); the 
creditor could not use the special rule and could not ignore the extra 
days in the first period in calculating its disclosures.
    2. Measuring odd periods. In determining whether a transaction may 
take advantage of the rule in Sec.  226.17(c)(4), the creditor must 
measure the variation against a regular period. For purposes of that 
rule:
    [][rtrif]i.[ltrif] The first period is the period from the 
date on which the finance charge begins to be earned to the date of the 
first payment.
    [][rtrif]ii.[ltrif] The term is the period from the date on 
which the finance charge begins to be earned to the date of the final 
payment.
    [][rtrif]iii.[ltrif] The regular period is the most common 
interval between payments in the transaction.
    In transactions involving regular periods that are monthly, 
semimonthly or multiples of a month, the length of the irregular and 
regular periods may be calculated on the basis of either the actual 
number of days or an assumed 30-day month. In other transactions, the 
length of the periods is based on the actual number of days.
    3. Use of special rules. A creditor may utilize the special rules 
in Sec.  226.17(c)(4) for purposes of calculating and making some 
disclosures but may elect not to do so for all of the disclosures. For 
example, the variations may be ignored in calculating and disclosing 
the annual percentage rate but taken into account in calculating and 
disclosing the finance charge and payment schedule.
    4. Relation to prepaid finance charges. Prepaid finance charges, 
including ``odd-days'' or ``per-diem'' interest, paid prior to or at 
closing may not be treated as the first payment on a loan. Thus, 
creditors may not disregard an irregularity in disclosing such finance 
charges.
    Paragraph 17(c)(5).
    1. Demand disclosures. Disclosures for demand obligations are based 
on an assumed 1-year term, unless an alternate maturity date is stated 
in the legal obligation. Whether an alternate maturity date is stated 
in the legal obligation is determined by applicable law. An alternate 
maturity date is not inferred from an informal principal reduction 
agreement or a similar understanding between the parties. However, when 
the note itself specifies a principal reduction schedule (for example, 
``payable on demand or $2,000 plus interest quarterly''), an alternate 
maturity is stated and the disclosures must reflect that date. 
[rtrif]See Sec. Sec.  226.19(b)(2)(ii)(D) and 226.38(d)(2)(iv) and 
associated commentary to determine how to disclose a demand feature for 
a transaction secured by real property or a dwelling.[ltrif]
    2. Future event as maturity date. An obligation whose maturity date 
is determined solely by a future event, as for example, a loan payable 
only on the sale of property, is not a demand obligation. Because no 
demand feature is contained in the obligation, demand disclosures under 
Sec.  226.18(i) are inapplicable. The disclosures should be based on 
the creditor's estimate of the time at which the specified event will 
occur, and [rtrif]in a transaction not secured by real property or a 
dwelling[ltrif] may indicate the basis for the creditor's estimate, as 
noted in the commentary to Sec.  226.17(a).
    3. Demand after stated period. Most demand transactions contain a 
demand feature that may be exercised at any point during the term, but 
[certain transactions][rtrif]a transaction may[ltrif] convert to demand 
status only after a fixed period. [For example, in States prohibiting 
due-on-sale clauses, the Federal National Mortgage Association (FNMA) 
requires mortgages that it purchases to include a call option rider 
that may be exercised after 7 years. These mortgages are generally 
written as long-term obligations, but contain a demand feature that may 
be exercised only within a 30-day period at 7 years.] The disclosures 
for [these transactions][rtrif]a transaction that converts to demand 
status after a fixed period[ltrif] should be based upon the legally 
agreed-upon maturity date. Thus, [rtrif]for example,[ltrif] if a 
mortgage containing [the 7-year FNMA call option] [rtrif]a call option 
the creditor may exercise during the first 30 days of the eighth year 
after loan origination[ltrif] is written as a 20-year obligation, the 
disclosures should be based on the 20-year term, with the demand 
feature disclosed under [Sec.  226.18(i)][rtrif] Sec.  
226.38(d)(2)(iv)[ltrif].
    4. Balloon mortgages. Balloon payment mortgages, with payments 
based on a long-term amortization schedule and a large final payment 
due after a shorter term, are not demand obligations unless a demand 
feature is specifically contained in the contract. For example, a 
mortgage with a term of 5 years and a payment 
[schedule][rtrif]summary[ltrif] based on 20 years would not be treated 
as a mortgage with a demand feature, in the absence of any contractual 
demand provisions. [In this type of mortgage, disclosures should be 
based on the 5-year term.][rtrif](See Sec.  226.38(c)(3) for 
requirements for interest rate and payment summary disclosures for 
balloon payment mortgages.)[ltrif]
    Paragraph 17(c)(6).
    1. Series of advances. Section 226.17(c)(6)(i) deals with a series 
of advances under an agreement to extend credit up to a certain amount. 
A creditor may treat all of the advances as a single transaction or 
disclose each advance as a separate transaction. If these advances are 
treated as 1 transaction and the timing and amounts of advances are 
unknown, creditors must make disclosures based on estimates, as 
provided in Sec.  226.17(c)(2). If the advances are disclosed 
separately, disclosures must be provided before each advance occurs, 
with the disclosures for the first advance provided by consummation.
    2. Construction loans. Section 226.17(c)(6)(ii) provides a flexible 
rule for disclosure of construction loans that may be permanently 
financed. These transactions have 2 distinct phases, similar to 2 
separate transactions. The construction loan may be for initial 
construction or subsequent construction, such as rehabilitation or 
remodelling. The construction period usually involves several 
disbursements of funds at times and in amounts that are unknown at the 
beginning of that period, with the consumer paying only accrued 
interest until construction is completed. Unless the obligation is paid 
at that time, the loan then converts to permanent financing in which 
the loan amount is amortized just as in a standard mortgage 
transaction. Section 226.17(c)(6)(ii) permits the creditor to give 
either one combined disclosure for both the construction financing and 
the permanent financing, or a separate set of disclosures for the 2 
phases. This rule is available whether the consumer is initially 
obligated to accept construction financing only or is obligated to 
accept both construction and permanent financing from the outset. If 
the consumer is obligated on both phases and the creditor chooses to 
give 2 sets of disclosures, both sets must be given to the consumer 
initially, because both

[[Page 43383]]

transactions would be consummated at that time. (Appendix D provides a 
method of calculating the annual percentage rate and other disclosures 
for construction loans, which may be used, at the creditor's option, in 
disclosing construction financing.)
    3. Multiple-advance construction loans. Section 226.17(c)(6)(i) and 
(ii) are not mutually exclusive. For example, in a transaction that 
finances the construction of a dwelling that may be permanently 
financed by the same creditor, the construction phase may consist of a 
series of advances under an agreement to extend credit up to a certain 
amount. In these cases, the creditor may disclose the construction 
phase as either 1 or more than 1 transaction and also disclose the 
permanent financing as a separate transaction.
    4. Residential mortgage transaction. See the commentary to Sec.  
226.2(a)(24) for a discussion of the effect of Sec.  226.17(c)(6) on 
the definition of a residential mortgage transaction.
    5. Allocation of points. When a creditor utilizes the special rule 
in Sec.  226.17(c)(6) to disclose credit extensions as multiple 
transactions, buyers points or similar amounts imposed on the consumer 
must be allocated for purposes of calculating disclosures. While such 
amounts should not be taken into account more than once in making 
calculations, they may be allocated between the transactions in any 
manner the creditor chooses. For example, if a construction-permanent 
loan is subject to 5 points imposed on the consumer and the creditor 
chooses to disclose the 2 phases separately, the 5 points may be 
allocated entirely to the construction loan, entirely to the permanent 
loan, or divided in any manner between the two. However, the entire 5 
points may not be applied twice, that is, to both the construction and 
the permanent phases.
    17(d) Multiple creditors; multiple consumers.
    1. Multiple creditors. If a credit transaction involves more than 
one creditor:
    [][rtrif]i.[ltrif] The creditors must choose which of them 
will make the disclosures.
    [][rtrif]ii.[ltrif] A single, complete set of disclosures 
must be provided, rather than partial disclosures from several 
creditors.
    [][rtrif]iii.[ltrif] All disclosures for the transaction 
must be given, even if the disclosing creditor would not otherwise have 
been obligated to make a particular disclosure. For example, if one of 
the creditors is the seller, the total sale price disclosure under 
Sec.  226.18(j) must be made, even though the disclosing creditor is 
not the seller.
    2. Multiple consumers. When two consumers are joint obligors with 
primary liability on an obligation, the disclosures may be given to 
either one of them. If one consumer is merely a surety or guarantor, 
the disclosures must be given to the principal debtor. In rescindable 
transactions, however, separate disclosures must be given to each 
consumer who has the right to rescind under Sec.  226.23, although the 
disclosures required under Sec.  226.19(b) need only be provided to the 
consumer who expresses an interest in a variable-rate loan program.
    17(e) Effect of subsequent events.
    1. Events causing inaccuracies. Inaccuracies in disclosures are not 
violations if attributable to events occurring after the disclosures 
are made. [For example, when the consumer fails to fulfill a prior 
commitment to keep the collateral insured and the creditor then 
provides the coverage and charges the consumer for it, such a change 
does not make the original disclosures inaccurate.] The creditor may, 
however, be required to make new disclosures under Sec.  226.17(f) or 
Sec.  226.19 if the events occurred between disclosure and consummation 
or under Sec.  226.20 if the events occurred after consummation.[rtrif] 
For example, when the consumer fails to fulfill a prior commitment to 
keep the collateral insured and the creditor then provides the coverage 
and charges the consumer for it, such a change does not make the 
original disclosures inaccurate. However, the creditor would be 
required to provide the notice required under Sec.  226.20(e).[ltrif]
    17(f) Early disclosures.
    1. Change in rate or other terms. Redisclosure is required for 
changes that occur between the time disclosures are made and 
consummation if the annual percentage rate in the consummated 
transaction exceeds the limits prescribed in this section, even if the 
[initial][rtrif]prior[ltrif] disclosures would be considered accurate 
under the tolerances in Sec.  226.18(d) or [rtrif]Sec.  [ltrif] 
226.22(a). To illustrate:
    i. [General.][rtrif]Non-mortgage loan.[ltrif] A. If disclosures are 
made in a regular transaction [rtrif]not secured by real property or a 
dwelling[ltrif] on July 1, the transaction is consummated on July 15, 
and the actual annual percentage rate varies by more than \1/8\ of 1 
percentage point from the disclosed annual percentage rate, the 
creditor must either redisclose the changed terms or furnish a complete 
set of new disclosures before consummation. Redisclosure is required 
even if the disclosures made on July 1 are based on estimates and 
marked as such.
    B. In a regular transaction [rtrif]not secured by real property or 
a dwelling[ltrif], if early disclosures are marked as estimates and the 
disclosed annual percentage rate is within \1/8\ of 1 percentage point 
of the rate at consummation, the creditor need not redisclose the 
changed terms (including the annual percentage rate).
    [ii. Nonmortgage loan.][rtrif]C.[ltrif] If disclosures [rtrif]for a 
transaction not secured by real property or a dwelling[ltrif] are made 
on July 1, the transaction is consummated on July 15, and the finance 
charge increased by $35 but the disclosed annual percentage rate is 
within the permitted tolerance, the creditor must at least redisclose 
the changed terms that were not marked as estimates. (See Sec.  
226.18(d)(2) of this part.)
    [iii.][rtrif]ii.[ltrif] Mortgage loan. At the time [TILA 
disclosures][rtrif]the disclosures required by Sec.  
226.19(a)(2)(ii)[ltrif] are prepared in July, the loan closing is 
scheduled for July 31 and the creditor does not plan to collect per-
diem interest at consummation. Consummation actually occurs on August 
5, and per-diem interest for the remainder of August is collected as a 
prepaid finance charge. [Assuming there were no other changes requiring 
redisclosure, t][rtrif]T[ltrif]he creditor may rely on the disclosures 
prepared in July that were accurate when they were prepared. However, 
if the creditor prepares new disclosures in August that will be 
provided at consummation, the new disclosures must take into account 
the amount of the per-diem interest known to the creditor at that time.
    2. Variable [rtrif]or adjustable[ltrif] rate. The addition of a 
variable [rtrif]or adjustable[ltrif] rate feature to the credit terms, 
after early disclosures are given, requires new disclosures. 
[rtrif](See Sec.  226.19(a)(2) to determine when new disclosures are 
required for transactions secured by real property or a 
dwelling.[ltrif]
    3. Content of new disclosures. [rtrif]Subject to Sec.  226.19(a), 
i[ltrif][I]f redisclosure is required [rtrif]in a transaction not 
secured by real property or a dwelling[ltrif], the creditor has the 
option of either providing a complete set of new disclosures, or 
providing disclosures of only the terms that vary from those originally 
disclosed. [rtrif]If the creditor chooses to provide a complete set of 
new disclosures, the creditor may but need not highlight the new terms, 
provided that the disclosures comply with the format requirements of 
Sec.  226.17(a). If the creditor chooses to disclose only the new 
terms, all the new

[[Page 43384]]

terms must be disclosed. For example, a different annual percentage 
rate will almost always produce a different finance charge, and often a 
new schedule of payments; all of these changes would have to be 
disclosed. If, in addition, unrelated terms such as the amount financed 
or prepayment penalty vary from those originally disclosed, the 
accurate terms must be disclosed. However, no new disclosures are 
required if the only differences involve estimates other than the 
annual percentage rate, and no variable rate feature has been added 
(see comment 17(f)-2). If a transaction is secured by real property or 
a dwelling, the creditor must provide a complete set of new disclosures 
in all cases, however.[ltrif] (See the commentary to Sec.  
226.19(a)(2).)
    4. Special rules. [In mortgage transactions subject to Sec.  
226.19, the creditor must redisclose if, between the delivery of the 
required early disclosures and consummation, the annual percentage rate 
changes by more than a stated tolerance.][rtrif]Special disclosure 
timing and content requirements apply under Sec.  226.19(a)(2) to 
disclosures provided before consummation for mortgage transactions 
secured by real property or a dwelling.[ltrif] When subsequent events 
occur after consummation, new disclosures are required only if there is 
a refinancing or an assumption within the meaning of Sec.  226.20.
    Paragraph 17(f)(2).
    1. Irregular transactions. For purposes of this paragraph, a 
transaction is deemed to be ``irregular'' according to the definition 
in footnote 46 of Sec.  226.22(a)(3).
    17(g) Mail or telephone orders--delay in disclosures.
    1. Conditions for use. When the creditor receives a mail or 
telephone request for credit[rtrif], except for extensions of credit 
covered by sections 226.19(a) and 226.19(b),[ltrif] the creditor may 
delay making the disclosures until the first payment is due if the 
following conditions are met:
    [][rtrif]i.[ltrif] The credit request is initiated without 
face-to-face or direct telephone solicitation. (Creditors may, however, 
use the special rule when credit requests are solicited by mail.)
    [][rtrif]ii.[ltrif] The creditor has supplied the specified 
credit information about its credit terms either to the individual 
consumer or to the public generally. That information may be 
distributed through advertisements, catalogs, brochures, special 
mailers, or similar means.
    2. Insurance. The location requirements for the insurance 
disclosures under Sec.  226.18(n) permit them to appear apart from the 
other disclosures. Therefore, a creditor may mail an insurance 
authorization to the consumer and then prepare the other disclosures to 
reflect whether or not the authorization is completed by the consumer. 
Creditors may also disclose the insurance cost on a unit-cost basis, if 
the transaction meets the requirements of Sec.  226.17(g).
    17(h) Series of sales--delay in disclosures.
    1. Applicability. The creditor may delay the disclosures for 
individual credit sales in a series of such sales until the first 
payment is due on the current sale, assuming the 2 conditions in this 
paragraph are met. If those conditions are not met, the general timing 
rules in [Sec.  266.17(b)] [rtrif]Sec.  226.17(b)[ltrif] apply.
    2. Basis of disclosures. Creditors structuring disclosures for a 
series of sales under Sec.  226.17(h) may compute the total sale price 
as either:
    [][rtrif]i.[ltrif] The cash price for the sale plus that 
portion of the finance charge and other charges applicable to that 
sale; or
    [][rtrif]ii.[ltrif] The cash price for the sale, other 
charges applicable to the sale, and the total finance charge and 
outstanding principal.
    17(i) Interim student credit extensions.
    1. Definition. Student credit plans involve extensions of credit 
for education purposes where the repayment amount and schedule are not 
known at the time credit is advanced. These plans include loans made 
under any student credit plan, whether government or private, where the 
repayment period does not begin immediately. (Certain student credit 
plans that meet this definition are exempt from Regulation Z. See Sec.  
226.3(f).) Creditors in interim student credit extensions need not 
disclose the terms set forth in this paragraph at the time the credit 
is actually extended but must make complete disclosures at the time the 
creditor and consumer agree upon the repayment schedule for the total 
obligation. At that time, a new set of disclosures must be made of all 
applicable items under Sec.  226.18.
    2. Basis of disclosures. The disclosures given at the time of 
execution of the interim note should reflect two annual percentage 
rates, one for the interim period and one for the repayment period. The 
use of Sec.  226.17(i) in making disclosures does not, by itself, make 
those disclosures estimates. Any portion of the finance charge, such as 
statutory interest, that is attributable to the interim period and is 
paid by the student (either as a prepaid finance charge, periodically 
during the interim period, in one payment at the end of the interim 
period, or capitalized at the beginning of the repayment period) must 
be reflected in the interim annual percentage rate. Interest subsidies, 
such as payments made by either a State or the Federal government on an 
interim loan, must be excluded in computing the annual percentage rate 
on the interim obligation, when the consumer has no contingent 
liability for payment of those amounts. Any finance charges that are 
paid separately by the student at the outset or withheld from the 
proceeds of the loan are prepaid finance charges. An example of this 
type of charge is the loan guarantee fee. The sum of the prepaid 
finance charges is deducted from the loan proceeds to determine the 
amount financed and included in the calculation of the finance charge.
    3. Consolidation. Consolidation of the interim student credit 
extensions through a renewal note with a set repayment schedule is 
treated as a new transaction with disclosures made as they would be for 
a refinancing. Any unearned portion of the finance charge must be 
reflected in the new finance charge and annual percentage rate, and is 
not added to the new amount financed. In itemizing the amount financed 
under Sec.  226.18(c), the creditor may combine the principal balances 
remaining on the interim extensions at the time of consolidation and 
categorize them as the amount paid on the consumer's account.
    4. Approved student credit forms. See the commentary to appendix H 
regarding disclosure forms approved for use in certain student credit 
programs.
    Sec.  226.18--Content of Disclosures.
    1. As applicable. [rtrif]i.[ltrif] The disclosures required by this 
section need be made only as applicable. Any disclosure not relevant to 
a particular transaction may be eliminated entirely. For example:
    [][rtrif]A.[ltrif] In a loan transaction, the creditor may 
delete disclosure of the total sale price.
    [][rtrif]B.[ltrif] In a credit sale requiring disclosure of 
the total sale price under Sec.  226.18(j), the creditor may delete any 
reference to a downpayment where no downpayment is involved.
    [rtrif]ii.[ltrif] Where the amounts of several numerical 
disclosures are the same, the ``as applicable'' language also permits 
creditors to combine the terms, so long as it is done in a clear and 
conspicuous manner. For example:
    [][rtrif]A.[ltrif] In a transaction in which the amount 
financed equals the total of payments, the creditor may disclose 
``amount financed/total of payments,''

[[Page 43385]]

together with descriptive language, followed by a single amount.
    [][rtrif]B.[ltrif] However, if the terms are separated on 
the disclosure statement and separate space is provided for each 
amount, both disclosures must be completed, even though the same amount 
is entered in each space.
    2. Format. See the commentary to Sec.  226.17 and appendix H for a 
discussion of the format to be used in making these disclosures, as 
well as acceptable modifications.
    18(a) Creditor.
    1. Identification of creditor. The creditor making the disclosures 
must be identified. [This disclosure may, at the creditor's option, 
appear apart from the other disclosures.] Use of the creditor's name is 
sufficient, but the creditor may also include an address and/or 
telephone number. In transactions with multiple creditors, any one of 
them may make the disclosures; the one doing so must be identified.
    18(b) Amount financed.
    1. Disclosure required. The net amount of credit extended must be 
disclosed using the term amount financed and a descriptive explanation 
similar to the phrase in the regulation.
    2. Rebates and loan premiums. In a loan transaction, the creditor 
may offer a premium in the form of cash or merchandise to prospective 
borrowers. Similarly, in a credit sale transaction, a seller's or 
manufacturer's rebate may be offered to prospective purchasers of the 
creditor's goods or services. [rtrif]Such premiums and rebates must be 
reflected in accordance with the terms of the legal obligation between 
the parties. See Sec.  226.17(c)(1) and its commentary. Thus, if the 
creditor is legally obligated to provide the premium or rebate to the 
consumer as part of the credit transaction, the disclosures should 
reflect its value in the manner and at the time the creditor is 
obligated to provide it.[ltrif] [At the creditor's option, these 
amounts may be either reflected in the Truth in Lending disclosures or 
disregarded in the disclosures. If the creditor chooses to reflect them 
in the Sec.  226.18 disclosures, rather than disregard them, they may 
be taken into account in any manner as part of those disclosures.]
    Paragraph 18(b)(1).
    1. Downpayments. A downpayment is defined in Sec.  226.2(a)(18) to 
include, at the creditor's option, certain deferred downpayments or 
pick-up payments. A deferred downpayment that meets the criteria set 
forth in the definition may be treated as part of the downpayment, at 
the creditor's option.
    [][rtrif]i.[ltrif] Deferred downpayments that are not 
treated as part of the downpayment (either because they do not meet the 
definition or because the creditor simply chooses not to treat them as 
downpayments) are included in the amount financed.
    [][rtrif]ii.[ltrif] Deferred downpayments that are treated 
as part of the downpayment are not part of the amount financed under 
Sec.  226.18(b)(1).
    Paragraph 18(b)(2).
    1. Adding other amounts. Fees or other charges that are not part of 
the finance charge and that are financed rather than paid separately at 
consummation of the transaction are included in the amount financed. 
Typical examples are [real estate settlement charges and] premiums for 
voluntary credit life and disability insurance excluded from the 
finance charge under Sec.  226.4. This paragraph does not include any 
amounts already accounted for under Sec.  226.18(b)(1), such as taxes, 
tag and title fees, or the costs of accessories or service policies 
that the creditor includes in the cash price.
    Paragraph 18(b)(3).
    1. Prepaid finance charges. [rtrif]i.[ltrif] Prepaid finance 
charges that are paid separately in cash or by check should be deducted 
under Sec.  226.18(b)(3) in calculating the amount financed. To 
illustrate[ A][rtrif], a[ltrif] consumer applies for a loan of 
$2,500 with a $40 loan fee. The face amount of the note is $2,500 and 
the consumer pays the loan fee separately by cash or check at closing. 
The principal loan amount for purposes of Sec.  226.18(b)(1) is $2,500 
and $40 should be deducted under Sec.  226.18(b(3), thereby yielding an 
amount financed of $2,460.
    [rtrif]ii.[ltrif] In some instances, as when loan fees are financed 
by the creditor, finance charges are incorporated in the face amount of 
the note. Creditors have the option, when the charges are not add-on or 
discount charges, of determining a principal loan amount under Sec.  
226.18(b)(1) that either includes or does not include the amount of the 
finance charges. (Thus the principal loan amount may, but need not, be 
determined to equal the face amount of the note.) When the finance 
charges are included in the principal loan amount, they should be 
deducted as prepaid finance charges under Sec.  226.18(b)(3). When the 
finance charges are not included in the principal loan amount, they 
should not be deducted under Sec.  226.18(b)(3). The following examples 
illustrate the application of Sec.  226.18(b) to this type of 
transaction. Each example assumes a loan request of $2,500 with a loan 
fee of $40; the creditor assesses the loan fee by increasing the face 
amount of the note to $2,540.
    [][rtrif]A.[ltrif] If the creditor determines the principal 
loan amount under Sec.  226.18(b)(1) to be $2,540, it has included the 
loan fee in the principal loan amount and should deduct $40 as a 
prepaid finance charge under Sec.  226.18(b)(3), thereby obtaining an 
amount financed of $2,500.
    [][rtrif]B.[ltrif] If the creditor determines the principal 
loan amount under Sec.  226.18(b)(1) to be $2,500, it has not included 
the loan fee in the principal loan amount and should not deduct any 
amount under Sec.  226.18(b)(3), thereby obtaining an amount financed 
of $2,500.
    [rtrif]iii.[ltrif] The same rules apply when the creditor does not 
increase the face amount of the note by the amount of the charge but 
collects the charge by withholding it from the amount advanced to the 
consumer. To illustrate, the following examples assume a loan request 
of $2,500 with a loan fee of $40; the creditor prepares a note for 
$2,500 and advances $2,460 to the consumer.
    [][rtrif]A.[ltrif] If the creditor determines the principal 
loan amount under Sec.  226.18(b)(1) to be $2,500, it has included the 
loan fee in the principal loan amount and should deduct $40 as a 
prepaid finance charge under Sec.  226.18(b)(3), thereby obtaining an 
amount financed of $2,460.
    [][rtrif]B.[ltrif] If the creditor determines the principal 
loan amount under Sec.  226.18(b)(1) to be $2,460, it has not included 
the loan fee in the principal loan amount and should not deduct any 
amount under Sec.  226.18(b)(3), thereby obtaining an amount financed 
of $2,460.
    [rtrif]iv.[ltrif] Thus in the examples where the creditor derives 
the net amount of credit by determining a principal loan amount that 
does not include the amount of the finance charge, no subtraction is 
appropriate. Creditors should note, however, that although the charges 
are not subtracted as prepaid finance charges in those examples, they 
are nonetheless finance charges and must be treated as such.
    2. Add-on or discount charges. All finance charges must be deducted 
from the amount of credit in calculating the amount financed. If the 
principal loan amount reflects finance charges that meet the definition 
of a prepaid finance charge in Sec.  226.2, those charges are included 
in the Sec.  226.18(b)(1) amount and deducted under Sec.  226.18(b)(3). 
However, if the principal loan amount includes finance charges that do 
not meet the definition of a prepaid finance charge, the Sec.  
226.18(b)(1) amount must exclude those finance charges. The following 
examples illustrate the application of Sec.  226.18(b) to these types 
of transactions. Each example assumes a loan request of $1000 for 1 
year, subject

[[Page 43386]]

to a 6 percent precomputed interest rate, with a $10 loan fee paid 
separately at consummation.
    [][rtrif]i.[ltrif] The creditor assesses add-on interest of 
$60 which is added to the $1000 in loan proceeds for an obligation with 
a face amount of $1060. The principal for purposes of Sec.  
226.18(b)(1) is $1000, no amounts are added under Sec.  226.18(b)(2), 
and the $10 loan fee is a prepaid finance charge to be deducted under 
Sec.  226.18(b)(3). The amount financed is $990.
    [][rtrif]ii.[ltrif] The creditor assesses discount interest 
of $60 and distributes $940 to the consumer, who is liable for an 
obligation with a face amount of $1000. The principal under Sec.  
226.18(b)(1) is $940, which results in an amount financed of $930, 
after deduction of the $10 prepaid finance charge under Sec.  
226.18(b)(3).
    [][rtrif]iii.[ltrif] The creditor assesses $60 in discount 
interest by increasing the face amount of the obligation to $1060, with 
the consumer receiving $1000. The principal under Sec.  226.18(b)(1) is 
thus $1000 and the amount financed $990, after deducting the $10 
prepaid finance charge under Sec.  226.18(b)(3).
    18(c) Itemization of amount financed.
    1. Disclosure required. [rtrif]i.[ltrif] The creditor has 2 
alternatives in complying with Sec.  226.18(c):
    [][rtrif]A.[ltrif] The creditor may inform the consumer, on 
the segregated disclosures, that a written itemization of the amount 
financed will be provided on request, furnishing the itemization only 
if the customer in fact requests it.
    [][rtrif]B.[ltrif] The creditor may provide an itemization 
as a matter of course, without notifying the consumer of the right to 
receive it or waiting for a request.
    [rtrif]ii.[ltrif] Whether given as a matter of course or only on 
request, the itemization must be provided at the same time as the other 
disclosures required by Sec.  226.18, although separate from those 
disclosures.
    2. Additional information. Section 226.18(c) establishes only a 
minimum standard for the material to be included in the itemization of 
the amount financed. Creditors have considerable flexibility in 
revising or supplementing the information listed in Sec.  226.18(c) and 
shown in model form H-3, although no changes are required. The creditor 
may, for example, do one or more of the following:
    i. Include amounts that reflect payments not part of the amount 
financed. For example, [escrow items and] certain insurance premiums 
may be included, [rtrif]even though they are neither part of the amount 
financed nor prepaid finance charges.[ltrif] [as discussed in the 
commentary to Sec.  226.18(g).]
    ii. Organize the categories in any order. For example, the creditor 
may rearrange the terms in a mathematical progression that depicts the 
arithmetic relationship of the terms.
    iii. Add categories. For example, in a credit sale, the creditor 
may include the cash price and the downpayment. If the credit sale 
involves a trade-in of the consumer's car and an existing lien on that 
car exceeds the value of the trade-in amount, the creditor may disclose 
the consumer's trade-in value, the creditor's payoff of the existing 
lien, and the resulting additional amount financed.
    iv. Further itemize each category. For example, the amount paid 
directly to the consumer may be subdivided into the amount given by 
check and the amount credited to the consumer's savings account.
    v. Label categories with different language from that shown in 
Sec.  226.18(c). For example, an amount paid on the consumer's account 
may be revised to specifically identify the account as ``your auto loan 
with us.''
    vi. Delete, leave blank, mark ``N/A,'' or otherwise 
[rtrif]note[ltrif] [not] inapplicable categories in the itemization. 
For example, in a credit sale with no prepaid finance charges or 
amounts paid to others, the amount financed may consist of only the 
cash price less downpayment. In this case, the itemization may be 
composed of only a single category and all other categories may be 
eliminated.
    3. Amounts appropriate to more than one category. When an amount 
may appropriately be placed in any of several categories and the 
creditor does not wish to revise the categories shown in Sec.  
226.18(c), the creditor has considerable flexibility in determining 
where to show the amount. For example[:] [rtrif],[ltrif] 
[][I][rtrif]i[ltrif] n a credit sale, the portion of the 
purchase price being financed by the creditor may be viewed as either 
an amount paid to the consumer or an amount paid on the consumer's 
account.
    [4. RESPA transactions. The Real Estate Settlement Procedures Act 
(RESPA) requires creditors to provide a good faith estimate of closing 
costs and a settlement statement listing the amounts paid by the 
consumer. Transactions subject to RESPA are exempt from the 
requirements of Sec.  226.18(c) if the creditor complies with RESPA's 
requirements for a good faith estimate and settlement statement. The 
itemization of the amount financed need not be given, even though the 
content and timing of the good faith estimate and settlement statement 
under RESPA differ from the requirements of Sec. Sec.  226.18(c) and 
226.19(a)(2). If a creditor chooses to substitute RESPA's settlement 
statement for the itemization when redisclosure is required under Sec.  
226.19(a)(2), the statement must be delivered to the consumer at or 
prior to consummation. The disclosures required by Sec. Sec.  226.18(c) 
and 226.19(a)(2) may appear on the same page or on the same document as 
the good faith estimate or the settlement statement, so long as the 
requirements of Sec.  226.17(a) are met.]
    Paragraph 18(c)(1)(i).
    1. Amounts paid to consumer. This encompasses funds given to the 
consumer in the form of cash or a check, including joint proceeds 
checks, as well as funds placed in an asset account. It may include 
money in an interest-bearing account even if that amount is considered 
a required deposit under Sec.  226.18(r). For example, in a transaction 
with total loan proceeds of $500, the consumer receives a check for 
$300 and $200 is required by the creditor to be put into an interest-
bearing account. Whether or not the $200 is a required deposit, it is 
part of the amount financed. At the creditor's option, it may be broken 
out and labeled in the itemization of the amount financed.
    Paragraph 18(c)(1)(ii).
    1. Amounts credited to consumer's account. The term consumer's 
account refers to an account in the nature of a debt with that 
creditor. It may include, for example, an unpaid balance on a prior 
loan, a credit sale balance or other amounts owing to that creditor. It 
does not include asset accounts of the consumer such as savings or 
checking accounts.
    Paragraph 18(c)(1)(iii).
    1. Amounts paid to others. This includes, for example, tag and 
title fees; amounts paid to insurance companies for insurance premiums; 
security interest fees, and amounts paid to credit bureaus, appraisers 
or public officials. When several types of insurance premiums are 
financed, they may, at the creditor's option, be combined and listed in 
one sum, labeled ``insurance'' or similar term. This includes, but is 
not limited to, different types of insurance premiums paid to one 
company and different types of insurance premiums paid to different 
companies. Except for insurance companies and other categories noted in 
footnote 41, third parties must be identified by name.
    2. Charges added to amounts paid to others. A sum is sometimes 
added to the amount of a fee charged to a consumer for a service 
provided by a third party (such as for an extended warranty or a

[[Page 43387]]

service contract) that is payable in the same amount in comparable cash 
and credit transactions. In the credit transaction, the amount is 
retained by the creditor. Given the flexibility permitted in meeting 
the requirements of the amount financed itemization (see the commentary 
to Sec.  226.18(c)), the creditor in such cases may reflect that the 
creditor has retained a portion of the amount paid to others. For 
example, the creditor could add to the category ``amount paid to 
others'' language such as ``(we may be retaining a portion of this 
amount).''
    Paragraph 18(c)(1)(iv).
    1. Prepaid finance charge. Prepaid finance charges that are 
deducted under Sec.  226.18(b)(3) must be disclosed under this section. 
The prepaid finance charges must be shown as a total amount but may, at 
the creditor's option, also be further itemized and described. All 
amounts must be reflected in this total, even if portions of the 
prepaid finance charge are also reflected elsewhere. For example, if at 
consummation the creditor collects interim interest of $30 and a credit 
report fee of $10, a total prepaid finance charge of $40 must be shown. 
At the creditor's option, the credit report fee paid to a third party 
may also be shown elsewhere as an amount included in Sec.  
226.18(c)(1)(iii). The creditor may also further describe the 2 
components of the prepaid finance charge, although no itemization of 
this element is required by Sec.  226.18(c)(1)(iv).
    [2. Prepaid mortgage insurance premiums. RESPA requires creditors 
to give consumers a settlement statement disclosing the costs 
associated with mortgage loan transactions. Included on the settlement 
statement are mortgage insurance premiums collected at settlement, 
which are prepaid finance charges. In calculating the total amount of 
prepaid finance charges, creditors should use the amount for mortgage 
insurance listed on the line for mortgage insurance on the settlement 
statement (line 1002 on HUD-1 or HUD 1-A), without adjustment, even if 
the actual amount collected at settlement may vary because of RESPA's 
escrow accounting rules. Figures for mortgage insurance disclosed in 
conformance with RESPA shall be deemed to be accurate for purposes of 
Regulation Z.]
    18(d) Finance charge.
    1. Disclosure required. The creditor must disclose the finance 
charge as a dollar amount, using the term ``finance charge,'' and must 
include a brief description similar to that in Sec.  226.18(d). The 
creditor may, but need not, further modify the descriptor for variable 
rate transactions with a phrase such as ``which is subject to change.'' 
The finance charge must be shown on the disclosures only as a total 
amount; the elements of the finance charge must not be itemized in the 
segregated disclosures, although the regulation does not prohibit their 
itemization elsewhere.
    [2. [Reserved]]

[18(d)(2) Other Credit]

    [1][rtrif]2[ltrif]. Tolerance. When a finance-charge error results 
in a misstatement of the amount financed, or some other dollar amount 
for which the regulation provides no specific tolerance, the misstated 
disclosure does not violate the act or the regulation if the finance-
charge error is within the permissible tolerance in this paragraph.
    18(e) Annual percentage rate.
    1. Disclosure required. The creditor must disclose the cost of the 
credit as an annual rate, using the term ``annual percentage rate,'' 
plus a brief descriptive phrase comparable to that used in Sec.  
226.18(e). For variable rate transactions, the descriptor may be 
further modified with a phrase such as ``which is subject to change.'' 
Under Sec.  226.17(a), the terms ``annual percentage rate'' and 
``finance charge'' must be more conspicuous than the other required 
disclosures.
    2. Exception. [Footnote 42][rtrif]Section 226.18(e)[ltrif] provides 
an exception for certain transactions in which no annual percentage 
rate disclosure is required.
    18(f) Variable rate.
    1. Coverage. The requirements of Sec.  226.18(f) apply to [all] 
transactions [rtrif]not secured by real property or a dwelling[ltrif] 
in which the terms of the legal obligation allow the creditor to 
increase the rate [originally disclosed to the consumer. It 
includes][rtrif]charged when the transaction is consummated. Increases 
in rate include[ltrif] not only increases in the interest rate but also 
increases in other components, such as the rate of required credit life 
insurance. [The provisions, however, do not apply to][rtrif]However, 
increases in rate do not include[ltrif] increases resulting from 
delinquency (including late payment), default, assumption, acceleration 
or transfer of the collateral [rtrif], because creditors may assume 
that consumers abide by the terms of the legal obligation. See comment 
17(c)(1)-1.[ltrif] [Section 226.18(f)(1) applies to variable-rate 
transactions that are not secured by the consumer's principal dwelling 
and to those that are secured by the principal dwelling but have a term 
of one year or less. Section 226.18(f)(2) applies to variable-rate 
transactions that are secured by the consumer's principal dwelling and 
have a term greater than one year. Moreover, transactions subject to 
section 226.18(f)(2) are subject to the special early-disclosure 
requirements of section 226.19(b). (However, ``shared-equity'' or 
``shared-appreciation'' mortgages are subject to the disclosure 
requirements of section 226.18(f)(1) and not to the requirements of 
sections 226.18(f)(2) and 226.19(b) regardless of the general coverage 
of those sections.) Creditors are permitted under footnote 43 to 
substitute in any variable-rate transaction the disclosures required 
under Section 226.19(b) for those disclosures ordinarily required under 
Section 226.18(f)(1). Creditors who provide variable-rate disclosures 
under section 226.19(b) must comply with all of the requirements of 
that section, including the timing of disclosures, and must also 
provide the disclosures required under section 226.18(f)(2). Creditors 
utilizing footnote 43 may, but need not, also provide disclosures 
pursuant to section 226.20(c). (Substitution of disclosures under 
section 226.18(f)(1) in transactions subject to section 226.19(b) is 
not permitted under the footnote.)]
    [Paragraph 18(f)(1).]
    [1.][rtrif]2.[ltrif] Terms used in disclosure. In describing the 
variable rate feature, the creditor need not use any prescribed 
terminology. For example, limitations and hypothetical examples may be 
described in terms of interest rates rather than annual percentage 
rates. The model forms in appendix H provide examples of ways in which 
the variable rate disclosures may be made.
    [2.][rtrif]3.[ltrif] Conversion feature. In variable-rate 
transactions with an option permitting consumers to convert to a fixed-
rate transaction, the conversion option is a variable-rate feature that 
must be disclosed. In making disclosures under Sec.  226.18(f)[(1)], 
creditors should disclose the fact that the rate may increase upon 
conversion; identify the index or formula used to set the fixed rate; 
and state any limitations on and effects of an increase resulting from 
conversion that differ from other variable-rate features. Because Sec.  
226.18(f)[(1)(iv)][rtrif](4)[ltrif] requires only one hypothetical 
example (such as an example of the effect on payments resulting from 
changes in the index), a second hypothetical example need not be given.
    Paragraph 18(f)(1)[(i)].
    1. Circumstances. The circumstances under which the rate may 
increase include identification of any index to which the rate is tied, 
as well as any conditions or events on which the increase is 
contingent.
    i. When no specific index is used, any identifiable factors used to 
determine

[[Page 43388]]

whether to increase the rate must be disclosed.
    ii. When the increase in the rate is purely discretionary, the fact 
that any increase is within the creditor's discretion must be 
disclosed.
    iii. When the index is internally defined (for example, by that 
creditor's prime rate), the creditor may comply with this requirement 
by either a brief description of that index or a statement that any 
increase is in the discretion of the creditor. An externally defined 
index, however, must be identified.
    Paragraph 18(f)[(1)(ii)][rtrif](2)[ltrif].
    1. Limitations. This includes any maximum imposed on the amount of 
an increase in the rate at any time, as well as any maximum on the 
total increase over the life of the transaction. When there are no 
limitations, the creditor may, but need not, disclose that fact. 
Limitations do not include legal limits in the nature of usury or rate 
ceilings under State or Federal statutes or regulations. (See Sec.  
226.30 for the rule requiring that a maximum interest rate be included 
in certain variable-rate transactions.)
    Paragraph 18(f)[(1)(iii)][rtrif](3)[ltrif].
    1. Effects. Disclosure of the effect of an increase refers to an 
increase in the number or amount of payments or an increase in the 
final payment. In addition, the creditor may make a brief reference to 
negative amortization that may result from a rate increase. (See the 
commentary to Sec.  226.17(a)(1) regarding directly related 
information.) If the effect cannot be determined, the creditor must 
provide a statement of the possible effects. For example, if the 
exercise of the variable-rate feature may result in either more or 
larger payments, both possibilities must be noted.
    Paragraph 18(f)[(1)(iv)][rtrif](4)[ltrif].
    1. Hypothetical example. The example may, at the creditor's option 
appear apart from the other disclosures. The creditor may provide 
either a standard example that illustrates the terms and conditions of 
that type of credit offered by that creditor or an example that 
directly reflects the terms and conditions of the particular 
transaction. In transactions with more than one variable-rate feature, 
only one hypothetical example need be provided. (See the commentary to 
Sec.  226.17(a)(1) regarding disclosure of more than one hypothetical 
example as directly related information.)
    2. Hypothetical example not required. The creditor need not provide 
a hypothetical example in the following transactions with a variable-
rate feature:
    i. Demand obligations with no alternate maturity date.
    ii. Interim student credit extensions.
    iii. Multiple-advance construction loans disclosed pursuant to 
appendix D, Part I.
    [Paragraph 18(f)(2).
    1. Disclosure required. In variable-rate transactions that have a 
term greater than one year and are secured by the consumer's principal 
dwelling, the creditor must give special early disclosures under 
section 226.19(b) in addition to the later disclosures required under 
section 226.18(f)(2). The disclosures under section 226.18(f)(2) must 
state that the transaction has a variable-rate feature and that 
variable-rate disclosures have been provided earlier. (See the 
commentary to section 226.17(a)(1) regarding the disclosure of certain 
directly related information in addition to the variable-rate 
disclosures required under section 226.18(f)(2).)]
    18(g) Payment schedule.
    1. Amounts included in repayment schedule. The repayment schedule 
should reflect all components of the finance charge, not merely the 
portion attributable to interest. A prepaid finance charge, however, 
should not be shown in the repayment schedule as a separate payment. 
The payments may include amounts beyond the amount financed and finance 
charge. For example, the disclosed payments may, at the creditor's 
option, reflect certain insurance premiums where the premiums are not 
part of either the amount financed or the finance charge, as well as 
real estate escrow amounts such as taxes added to the payment in 
mortgage transactions.
    2. Deferred downpayments. As discussed in the commentary to Sec.  
226.2(a)(18), deferred downpayments or pick-up payments that meet the 
conditions set forth in the definition of downpayment may be treated as 
part of the downpayment. Even if treated as a downpayment, that amount 
may nevertheless be disclosed as part of the payment schedule, at the 
creditor's option.
    3. Total number of payments. [rtrif]Except for transactions secured 
by real property or a dwelling, i[ltrif][I]n disclosing the number of 
payments for transactions with more than one payment level, creditors 
may but need not disclose as a single figure the total number of 
payments for all levels. For example, in a transaction calling for 108 
payments of $350, 240 payments of $335, and 12 payments of $330, the 
creditors need not state that there will be a total of 360 payments. 
[rtrif]For transactions secured by real property or a dwelling, 
creditors must disclose as a single figure the total number of payments 
for all levels. See Sec.  226.38(e)(5)(i).[ltrif]
    4. Timing of payments. i. General rule. Section 226.18(g) requires 
creditors to disclose the timing of payments. To meet this requirement, 
creditors may list all of the payment due dates. They also have the 
option of specifying the ``period of payments'' scheduled to repay the 
obligation. As a general rule, creditors that choose this option must 
disclose the payment intervals or frequency, such as ``monthly'' or 
``bi-weekly,'' and the calendar date that the beginning payment is due. 
For example, a creditor may disclose that payments are due ``monthly 
beginning on July 1, 1998.'' This information, when combined with the 
number of payments, is necessary to define the repayment period and 
enable a consumer to determine all of the payment due dates.
    ii. Exception. In a limited number of circumstances, the beginning-
payment date is unknown and difficult to determine at the time 
disclosures are made. For example, a consumer may become obligated on a 
credit contract that contemplates the delayed disbursement of funds 
based on a contingent event, such as the completion of home repairs. 
Disclosures may also accompany loan checks that are sent by mail, in 
which case the initial disbursement and repayment dates are solely 
within the consumer's control. In such cases, if the beginning-payment 
date is unknown the creditor may use an estimated date and label the 
disclosure as an estimate pursuant to Sec.  226.17(c). Alternatively, 
the disclosure may refer to the occurrence of a particular event, for 
example, by disclosing that the beginning payment is due ``30 days 
after the first loan disbursement.'' This information also may be 
included with an estimated date to explain the basis for the creditor's 
estimate. See comment 17(a)(1)-5(iii).
    5. Mortgage insurance. The payment schedule should reflect the 
consumer's mortgage insurance payments until the date on which the 
creditor must automatically terminate coverage under applicable law, 
even though the consumer may have a right to request that the insurance 
be cancelled earlier. The payment schedule must reflect the legal 
obligation, as determined by applicable State or other law. For 
example, assume that under applicable law, mortgage insurance must 
terminate after the 130th scheduled monthly payment, and the creditor 
collects at closing and places in escrow two months of premiums. If, 
under the legal obligation, the creditor will include mortgage 
insurance premiums in 130 payments and refund the escrowed payments 
when the insurance is terminated, the payment schedule

[[Page 43389]]

should reflect 130 premium payments. If, under the legal obligation, 
the creditor will apply the amount escrowed to the two final insurance 
payments, the payment schedule should reflect 128 monthly premium 
payments. (For assumptions in calculating a payment schedule that 
includes mortgage insurance that must be automatically terminated, see 
comments [17(c)(1)-8 and 17(c)(1)-10][rtrif]17(c)(1)(iii)-1 and 
17(c)(1)(iii)-3[ltrif].)
    [Paragraph ]18(h) Total of payments.
    1. Disclosure required. The total of payments must be disclosed 
using that term, along with a descriptive phrase similar to the one in 
the regulation. The descriptive explanation may be revised to reflect a 
variable rate feature with a brief phrase such as ``based on the 
current annual percentage rate which may change.''
    2. Calculation of total of payments. The total of payments is the 
sum of the payments disclosed under Sec.  226.18(g). For example, if 
the creditor disclosed a deferred portion of the downpayment as part of 
the payment schedule, that payment must be reflected in the total 
disclosed under this paragraph.
    3. Exception. [Footnote 44][rtrif]Section 226.18(h)[ltrif] permits 
creditors to omit disclosure of the total of payments in single-payment 
transactions. This exception does not apply to a transaction calling 
for a single payment of principal combined with periodic payments of 
interest.
    4. Demand obligations. In demand obligations with no alternate 
maturity date, the creditor may omit disclosure of payment amounts 
under Sec.  226.18(g)(1). In those transactions, the creditor need not 
disclose the total of payments.
    [Paragraph] 18(i) Demand feature.
    1. Disclosure requirements. The disclosure requirements of this 
provision apply not only to transactions payable on demand from the 
outset, but also to transactions that are not payable on demand at the 
time of consummation but convert to a demand status after a stated 
period. In demand obligations in which the disclosures are based on an 
assumed maturity of 1 year under Sec.  226.17(c)(5), that fact must 
also be stated. Appendix H contains model clauses that may be used in 
making this disclosure.
    2. Covered demand features. The type of demand feature triggering 
the disclosures required by section 226.18(i)[rtrif], or section 
226.38(d)(2)(iv) for transactions secured by real property or a 
dwelling, [ltrif]includes only those demand features contemplated by 
the parties as part of the legal obligation. For example, [this 
provision][rtrif]section 226.18(i), or section 226.38(d)(2)(iv) for 
transactions secured by real property or a dwelling,[ltrif] do[es] not 
apply to transactions that convert to a demand status as a result of 
the consumer's default. A due-on-sale clause is not considered a demand 
feature. A creditor may, but need not, treat its contractual right to 
demand payment of a loan made to its executive officers as a demand 
feature to the extent that the contractual right is required by 
Regulation O (12 CFR 215.5) or other federal law.
    3. Relationship to payment schedule disclosures. As provided in 
section 226.18(g)(1), [rtrif]or section 226.38(c) for transactions 
secured by real property or a dwelling,[ltrif] in demand obligations 
with no alternate maturity date, the creditor need only disclose the 
due dates or payment periods of any scheduled interest payments for the 
first year. If the demand obligation states an alternate maturity, 
however, the disclosed payment schedule must reflect that stated term; 
the special rule in section 226.18(g)(1)[rtrif], or section 226.38(c) 
for transactions secured by real property or a dwelling,[ltrif] is not 
available.
    [Paragraph ]18(j) Total sale price.
    1. Disclosure required. In a credit sale transaction, the total 
sale price must be disclosed using that term, along with a descriptive 
explanation similar to the one in the regulation. For variable rate 
transactions, the descriptive phrase may, at the creditor's option, be 
modified to reflect the variable rate feature. For example, the 
descriptor may read: ``The total cost of your purchase on credit, which 
is subject to change, including your downpayment of * * *.'' The 
reference to a downpayment may be eliminated in transactions calling 
for no downpayment.
    2. Calculation of total sale price. The figure to be disclosed is 
the sum of the cash price, other charges added under Sec.  
226.18(b)(2), and the finance charge disclosed under Sec.  226.18(d).
    3. Effect of existing liens. When a credit sale transaction 
involves property that is being used as a trade-in (an automobile, for 
example) and that has a lien exceeding the value of the trade-in, the 
total sale price is affected by the amount of any cash provided. (See 
comment 2(a)(18)-3.) To illustrate, assume a consumer finances the 
purchase of an automobile with a cash price of $20,000. Another vehicle 
used as a trade-in has a value of $8,000 but has an existing lien of 
$10,000, leaving a $2,000 deficit that the consumer must finance.
    i. If the consumer pays $1,500 in cash, the creditor may apply the 
cash first to the lien, leaving a $500 deficit, and reflect a 
downpayment of $0. The total sale price would include the $20,000 cash 
price, an additional $500 financed under Sec.  226.18(b)(2), and the 
amount of the finance charge. Alternatively, the creditor may reflect a 
downpayment of $1,500 and finance the $2,000 deficit. In that case, the 
total sale price would include the sum of the $20,000 cash price, the 
$2,000 lien payoff amount as an additional amount financed, and the 
amount of the finance charge.
    ii. If the consumer pays $3,000 in cash, the creditor may apply the 
cash first to extinguish the lien and reflect the remainder as a 
downpayment of $1,000. The total sale price would reflect the $20,000 
cash price and the amount of the finance charge. (The cash payment 
extinguishes the trade-in deficit and no charges are added under Sec.  
226.18(b)(2).) Alternatively, the creditor may elect to reflect a 
downpayment of $3,000 and finance the $2,000 deficit. In that case, the 
total sale price would include the sum of the $20,000 cash price, the 
$2,000 lien payoff amount as an additional amount financed, and the 
amount of the finance charge.
    [Paragraph ]18(k) Prepayment.
    1. Disclosure required. The creditor must give a definitive 
statement of whether or not a penalty will be imposed or a rebate will 
be given.
    [][rtrif]iii.[ltrif] The fact that no penalty will be 
imposed may not simply be inferred from the absence of a penalty 
disclosure; the creditor must indicate that prepayment will not result 
in a penalty.
    [][rtrif]ii.[ltrif] If a penalty or refund is possible for 
one type of prepayment, even though not for all, a positive disclosure 
is required. This applies to any type of prepayment, whether voluntary 
or involuntary as in the case of prepayments resulting from 
acceleration.
    [][rtrif]iii.[ltrif] Any difference in rebate or penalty 
policy, depending on whether prepayment is voluntary or not, must not 
be disclosed with the segregated disclosures.
    2. Rebate-penalty disclosure. A single transaction may involve both 
a precomputed finance charge and a finance charge computed by 
application of a rate to the unpaid balance (for example, mortgages 
with mortgage-guarantee insurance). In these cases, disclosures about 
both prepayment rebates and penalties are required. Sample form H-15 in 
appendix H illustrates a mortgage transaction in which both rebate and 
penalty disclosures are necessary.

[[Page 43390]]

    3. Prepaid finance charge. The existence of a prepaid finance 
charge in a transaction does not, by itself, require a disclosure under 
Sec.  226.18(k). A prepaid finance charge is not considered a penalty 
under Sec.  226.18(k)(1), nor does it require a disclosure under Sec.  
226.18(k)(2). At its option, however, a creditor may consider a prepaid 
finance charge to be under Sec.  226.18(k)(2). If a disclosure is made 
under Sec.  226.18(k)(2) with respect to a prepaid finance charge or 
other finance charge, the creditor may further identify that finance 
charge. For example, the disclosure may state that the borrower ``will 
not be entitled to a refund of the prepaid finance charge'' or some 
other term that describes the finance charge.
    Paragraph 18(k)(1).
    1. Penalty. [This][rtrif]Section 226.18(k)(1)[ltrif] applies only 
to those transactions in which the interest calculation takes account 
of all scheduled reductions in principal, as well as transactions in 
which interest calculations are made daily. The term penalty as used 
here encompasses only those charges that are assessed strictly because 
of the prepayment in full of a simple-interest obligation, as an 
addition to all other amounts. Items which are penalties include, for 
example:
    [ Interest charges for any period after prepayment in full 
is made.][rtrif]i. Charges determined by treating the loan balance as 
outstanding for a period after prepayment in full and applying the 
interest rate to such ``balance.''[ltrif] (See the commentary to Sec.  
226.17(a)(1) regarding disclosure of [interest][rtrif]such[ltrif] 
charges assessed for periods after prepayment in full as directly 
related information[rtrif], for transactions not secured by real 
property or a dwelling[ltrif].)
    [][rtrif]ii.[ltrif] A minimum finance charge in a simple-
interest transaction. (See the commentary to Sec.  226.17(a)(1) 
regarding the disclosure of a minimum finance charge as directly 
related information.) Items which are not penalties include, for 
example[:][rtrif],[ltrif]
    [ L][rtrif]l[ltrif]oan guarantee fees[rtrif].[ltrif]
    [ Interim interest on a student loan.]
    Paragraph 18(k)(2).
    1. Rebate of finance charge. This applies to any finance charges 
that do not take account of each reduction in the principal balance of 
an obligation. This category includes, for example:
    [][rtrif]i.[ltrif] Precomputed finance charges such as add-
on charges.
    [][rtrif]ii.[ltrif] Charges that take account of some but 
not all reductions in principal, such as mortgage guarantee insurance 
assessed on the basis of an annual declining balance, when the 
principal is reduced on a monthly basis.
    [rtrif]2.[ltrif] Methodology of computing. No description of the 
method of computing earned or unearned finance charges is required or 
permitted as part of the segregated disclosures under this section.
    [Paragraph ]18(l) Late payment.
    1. Definition. This paragraph requires a disclosure only if charges 
are added to individual delinquent installments by a creditor who 
otherwise considers the transaction ongoing on its original terms. Late 
payment charges do not include:
    [][rtrif]i.[ltrif] The right of acceleration.
    [][rtrif]ii.[ltrif] Fees imposed for actual collection 
costs, such as repossession charges or attorney's fees.
    [][rtrif]iii.[ltrif] Deferral and extension charges.
    [][rtrif]iv.[ltrif] The continued accrual of simple 
interest at the contract rate after the payment due date. However, an 
increase in the interest rate is a late payment charge to the extent of 
the increase.
    2. Content of disclosure. Many State laws authorize the calculation 
of late charges on the basis of either a percentage or a specified 
dollar amount, and permit imposition of the lesser or greater of the 2 
charges. The disclosure made under Sec.  226.18(l) may reflect this 
alternative. For example, stating that the charge in the event of a 
late payment is 5% of the late amount, not to exceed $5.00, is 
sufficient. Many creditors also permit a grace period during which no 
late charge will be assessed; this fact may be disclosed as directly 
related information. (See the commentary to Sec.  226.17(a).)
    [Paragraph ]18(m) Security interest.
    1. Purchase money transactions. When the collateral is the item 
purchased as part of, or with the proceeds of, the credit transaction, 
section 226.18(m) requires only a general identification such as ``the 
property purchased in this transaction.'' However, the creditor may 
identify the property by item or type instead of identifying it more 
generally with a phrase such as ``the property purchased in this 
transaction.'' For example, a creditor may identify collateral as ``a 
motor vehicle,'' or as ``the property purchased in this transaction.'' 
Any transaction in which the credit is being used to purchase the 
collateral is considered a purchase money transaction and the 
abbreviated identification may be used, whether the obligation is 
treated as a loan or a credit sale.
    2. Nonpurchase money transactions. In nonpurchase money 
transactions, the property subject to the security interest must be 
identified by item or type. This disclosure is satisfied by a general 
disclosure of the category of property subject to the security 
interest, such as ``motor vehicles,'' ``securities,'' ``certain 
household items,'' or ``household goods.'' (Creditors should be aware, 
however, that the Federal credit practices rules, as well as some State 
laws, prohibit certain security interests in household goods.) At the 
creditor's option, however, a more precise identification of the 
property or goods may be provided.
    3. Mixed collateral. In some transactions in which the credit is 
used to purchase the collateral, the creditor may also take other 
property of the consumer as security. In those cases, a combined 
disclosure must be provided, consisting of an identification of the 
purchase money collateral consistent with comment 18(m)-1 and a 
specific identification of the other collateral consistent with comment 
18(m)-2.
    4. After-acquired property. An after-acquired property clause is 
not a security interest to be disclosed under Sec.  226.18(m).
    5. Spreader clause. The fact that collateral for pre-existing 
credit with the institution is being used to secure the present 
obligation constitutes a security interest and must be disclosed. (Such 
security interests may be known as ``spreader'' or ``dragnet'' clauses, 
or as ``cross-collateralization'' clauses.) A specific identification 
of that collateral is unnecessary but a reminder of the interest 
arising from the prior indebtedness is required. The disclosure may be 
made by using language such as ``collateral securing other loans with 
us may also secure this loan.'' At the creditor's option, a more 
specific description of the property involved may be given.
    6. Terms used in disclosure. No specified terminology is required 
in disclosing a security interest. Although the disclosure may, at the 
creditor's option, use the term security interest, the creditor may 
designate its interest by using, for example, pledge, lien, or 
mortgage.
    7. Collateral from third party. In certain transactions, the 
consumer's obligation may be secured by collateral belonging to a third 
party. For example, a loan to a student may be secured by an interest 
in the property of the student's parents. In such cases, the security 
interest is taken in connection with the transaction and must be 
disclosed, even though the property encumbered is owned by someone 
other than the consumer.

[[Page 43391]]

    18(n) Insurance[rtrif],[ltrif] [and] debt cancellation [rtrif], and 
debt suspension[ltrif].
    1. Location. This disclosure may, at the creditor's option, appear 
apart from the other disclosures. It may appear with any other 
information, including the amount financed itemization, any information 
prescribed by State law, or other supplementary material. When this 
information is disclosed with the other segregated disclosures, 
however, no additional explanatory material may be included.
    2. Debt cancellation [rtrif]and debt suspension[ltrif]. Creditors 
may use the model credit-insurance disclosures only if the debt-
cancellation [rtrif]or debt suspension[ltrif] coverage constitutes 
insurance under State law. Otherwise, they may provide a parallel 
disclosure that refers to debt-cancellation [rtrif]or debt 
suspension[ltrif] coverage.
    [Paragraph ]18(o) Certain security interest charges.
    1. Format. No special format is required for these disclosures; 
under Sec.  226.4(e), taxes and fees paid to government officials with 
respect to a security interest may be aggregated, or may be broken down 
by individual charge. For example, the disclosure could be labeled 
``filing fees and taxes'' and all funds disbursed for such purposes may 
be aggregated in a single disclosure. This disclosure may appear, at 
the creditor's option, apart from the other required disclosures. The 
inclusion of this information on a statement required under the Real 
Estate Settlement Procedures Act is sufficient disclosure for purposes 
of Truth in Lending.
    [Paragraph ]18(p) Contract reference.
    1. Content. Creditors may substitute, for the phrase ``appropriate 
contract document,'' a reference to specific transaction documents in 
which the additional information is found, such as ``promissory note'' 
or ``retail installment sale contract.'' A creditor may, at its option, 
delete inapplicable items in the contract reference, as for example 
when the contract documents contain no information regarding the right 
of acceleration.
    [18(q) Assumption policy
    1. Policy statement. In many mortgages, the creditor cannot 
determine, at the time disclosure must be made, whether a loan may be 
assumable at a future date on its original terms. For example, the 
assumption clause commonly used in mortgages sold to the Federal 
National Mortgage Association and the Federal Home Loan Mortgage 
Corporation conditions an assumption on a variety of factors such as 
the creditworthiness of the subsequent borrower, the potential for 
impairment of the lender's security, and execution of an assumption 
agreement by the subsequent borrower. In cases where uncertainty exists 
as to the future assumability of a mortgage, the disclosure under Sec.  
226.18(q) should reflect that fact. In making disclosures in such 
cases, the creditor may use phrases such as ``subject to conditions,'' 
``under certain circumstances,'' or ``depending on future conditions.'' 
The creditor may provide a brief reference to more specific criteria 
such as a due-on-sale clause, although a complete explanation of all 
conditions is not appropriate. For example, the disclosure may state, 
``Someone buying your home may be allowed to assume the mortgage on its 
original terms, subject to certain conditions, such as payment of an 
assumption fee.'' See comment 17(a)(1)-5 for an example of a reference 
to a due-on-sale clause.
    2. Original terms. The phrase original terms for purposes of Sec.  
226.18(q) does not preclude the imposition of an assumption fee, but a 
modification of the basic credit agreement, such as a change in the 
contract interest rate, represents different terms.]
    [Paragraph ]18(r) Required deposit.
    1. Disclosure required. The creditor must inform the consumer of 
the existence of a required deposit. (Appendix H provides a model 
clause that may be used in making that disclosure.) [Footnote 45 
describes three][rtrif]Sec.  226.18(r)(1) and (2) describe two[ltrif] 
types of deposits that need not be considered required deposits. Use of 
the phrase ``need not'' permits creditors to include the disclosure 
even in cases where there is doubt as to whether the deposit 
constitutes a required deposit.
    [2. Pledged-account mortgages. In these transactions, a consumer 
pledges as collateral funds that the consumer deposits in an account 
held by the creditor. The creditor withdraws sums from that account to 
supplement the consumer's periodic payments. Creditors may treat these 
pledged accounts as required deposits or they may treat them as 
consumer buydowns in accordance with the commentary to section 
226.17(c)(1).]
    3. Escrow accounts. The escrow exception in [footnote 
45][rtrif]Sec.  226.18(r)(1)[ltrif] applies, for example, to accounts 
for such items as maintenance fees, repairs, or improvements, whether 
in a realty or a nonrealty transaction. (See the commentary to section 
226.17(c)(1) regarding the use of escrow accounts in consumer buydown 
transactions.)
    4. Interest-bearing accounts. When a deposit earns at least 5 
percent interest per year, no disclosure is required under Sec.  
226.18(r). This exception applies whether the deposit is held by the 
creditor or by a third party.
    5. [Morris Plan transactions][rtrif]Deposits applied solely to pay 
obligation[ltrif]. A deposit [under a Morris Plan, in 
which][rtrif]to[ltrif] a deposit account [is] created for the sole 
purpose of accumulating payments and [this is] applied to satisfy 
entirely the consumer's obligation in the transaction[,] is not a 
required deposit.
    [6.] Examples of amounts excluded. The following are among the 
types of deposits that need not be treated as required deposits:
    [][rtrif]i.[ltrif] Requirement that a borrower be a 
customer or a member even if that involves a fee or a minimum balance.
    [][rtrif]ii.[ltrif] Required property insurance escrow on a 
mobile home transaction.
    [][rtrif]iii.[ltrif] Refund of interest when the obligation 
is paid in full.
    [][rtrif]iv.[ltrif] Deposits that are immediately available 
to the consumer.
    [][rtrif]v.[ltrif] Funds deposited with the creditor to be 
disbursed (for example, for construction) before the loan proceeds are 
advanced.
    [][rtrif]vi.[ltrif] Escrow of condominium fees.
    [][rtrif]vii.[ltrif] Escrow of loan proceeds to be released 
when the repairs are completed.

Sec.  226.19--Certain Mortgage and Variable-Rate Transactions.

    [rtrif]19 Coverage.
    1. General. Section 226.19 applies to transactions secured by real 
property or a dwelling, other than home equity lines of credit subject 
to Sec.  226.5b. Creditors must make the disclosures required by Sec.  
226.19 even if the transaction is not subject to the Real Estate 
Settlement Procedures Act (RESPA), 12 U.S.C. 2602 et seq., and its 
implementing Regulation X, 24 CFR 3500.1 et seq., administered by the 
Department of Housing and Urban Development (HUD). For example, 
disclosures are required for construction loans that are not covered by 
RESPA or Regulation X because they are not considered ``federally 
related mortgage loans.'' See 12 U.S.C. 2602(1); 15 CFR 3500.2(b). 
However, Sec.  226.19 only applies to transactions that are offered or 
extended to a consumer primarily for personal, family, or household 
purposes, even if the transactions are secured by real property or a 
dwelling. TILA and Regulation Z do not apply to transactions that are 
primarily for business, commercial, or agricultural purposes. See 15 
U.S.C. 1603(1); Sec.  226.3(a)(2). See also Sec.  226.2(a)(12) and 
(b)(2). Section 226.19(a)(4) contains special disclosure

[[Page 43392]]

timing requirements for mortgage transactions secured by a consumer's 
interest in a timeshare plan described in 11 U.S.C. 101(53(D)).[ltrif]
    19(a)(1)(i) Time of disclosure.
    [1. Coverage. This section requires early disclosure of credit 
terms in mortgage transactions that are secured by a consumer's 
dwelling (other than home equity lines of credit subject to Sec.  
226.5b or mortgage transactions secured by an interest in a timeshare 
plan) that are also subject to the Real Estate Settlement Procedures 
Act (RESPA) and its implementing Regulation X, administered by the 
Department of Housing and Urban Development (HUD). To be covered by 
Sec.  226.19, a transaction must be a Federally related mortgage loan 
under RESPA. ``Federally related mortgage loan'' is defined under RESPA 
(12 U.S.C. 2602) and Regulation X (24 CFR 3500.2), and is subject to 
any interpretations by HUD.]
    [2.][rtrif]1.[ltrif] Timing and use of estimates. The disclosures 
required by Sec.  226.19(a)(1)(i) must be delivered or mailed not later 
than three business days after the creditor receives the consumer's 
written application. The general definition of ``business day'' in 
Sec.  226.2(a)(6)--a day on which the creditor's offices are open to 
the public for substantially all of its business functions--is used for 
purposes of Sec.  226.19(a)(1)(i). See comment 2(a)(6)-1. This general 
definition is consistent with the definition of ``business day'' in 
HUD's Regulation X--a day on which the creditor's offices are open to 
the public for carrying on substantially all of its business functions. 
See 24 CFR 3500.2. Accordingly, the three-business-day period in Sec.  
226.19(a)(1)(i) for making early disclosures coincides with the time 
period within which creditors [subject to RESPA] must provide good 
faith estimates of settlement costs [rtrif]for transactions subject to 
RESPA[ltrif]. If the creditor does not know the precise credit terms, 
the creditor must base the disclosures [rtrif]required by Sec.  
226.19(a)(1)(i)[ltrif] on the best information reasonably available and 
indicate that the disclosures are estimates under Sec.  226.17(c)(2). 
If many of the disclosures are estimates, the creditor may include a 
statement to that effect (such as ``all numerical disclosures [except 
the late-payment disclosure] are estimates'') instead of separately 
labelling each estimate. In the alternative, the creditor may label as 
an estimate only the items primarily affected by unknown information. 
(See the commentary to Sec.  226.17(c)(2).) The creditor may provide 
explanatory material concerning the estimates and the contingencies 
that may affect the actual terms, in accordance with the commentary to 
Sec.  226.17(a)(1)[.][rtrif]and Sec.  226.37. The disclosures required 
by Sec.  226.19(a)(2) may not contain estimates, however, with limited 
exceptions. See the commentary on Sec.  226.19(a)(2) for a discussion 
of limitations on estimates in disclosures made under that 
subsection.[ltrif]
    [3.][rtrif]2.[ltrif] Written application. Creditors may rely on 
RESPA and Regulation X (including any interpretations issued by HUD) in 
deciding whether a ``written application'' has been received. In 
general, Regulation X defines an ``application'' to mean the submission 
of a borrower's financial information in anticipation of a credit 
decision relating to a [F][rtrif]f[ltrif]ederally related mortgage 
loan. See 24 CFR 3500.2(b). [rtrif]Creditors may rely on RESPA and 
Regulation X even for a transaction not subject to RESPA.[ltrif] An 
application is received when it reaches the creditor in any of the ways 
applications are normally transmitted--by mail, hand delivery, or 
through an intermediary agent or broker. (See [comment 19(b)-
3][rtrif]the commentary on Sec.  19(d)(3)[ltrif] for guidance in 
determining whether or not the transaction involves an intermediary 
agent or broker.) If an application reaches the creditor through an 
intermediary agent or broker, the application is received when it 
reaches the creditor, rather than when it reaches the agent or broker.
    [4.][rtrif]3.[ltrif] Denied or withdrawn application. The creditor 
may determine within the three-business-day period that the application 
will not or cannot be approved on the terms requested, as, for example, 
when a consumer applies for a type or amount of credit that the 
creditor does not offer, or the consumer's application cannot be 
approved for some other reason. In that case, or if the consumer 
withdraws the application within the three-business-day waiting period, 
the creditor need not make the disclosures under this section. If the 
creditor fails to provide early disclosures and the transaction is 
later consummated on the original terms, the creditor will be in 
violation of this provision. If, however, the consumer amends the 
application because of the creditor's unwillingness to approve it on 
its original terms, no violation occurs for not providing disclosures 
based on the original terms. But the amended application is a new 
application subject to Sec.  226.19(a)(1)(i).
    [5.][rtrif]4.[ltrif] Itemization of amount financed. In many 
mortgage transactions [rtrif]subject to RESPA[ltrif], the itemization 
of the amount financed required by [Sec.  226.18(c)][rtrif]Sec.  
226.38(j)[ltrif] will contain items, such as origination fees or 
points, that also must be disclosed as part of the good faith estimates 
of settlement costs required under RESPA. Creditors furnishing the 
RESPA good faith estimates need not give consumers any itemization of 
the amount financed[rtrif], whether or not a transaction is subject to 
RESPA[ltrif].
    19(a)(1)(ii) Imposition of fees.
    1. Timing of fees. The consumer must receive the disclosures 
required by this section before paying or incurring any fee imposed by 
a creditor or other person in connection with the consumer's 
application for a mortgage transaction that is subject to Sec.  
226.19(a)(1)(i), except as provided in Sec.  226.19(a)(1)(iii). If the 
creditor delivers the disclosures to the consumer in person, a fee may 
be imposed anytime after delivery. If the creditor places the 
disclosures in the mail, the creditor may impose a fee after the 
consumer receives the disclosures or, in all cases, after midnight [on 
the third business day] following [rtrif] the third business day 
after[ltrif] mailing of the disclosures. [rtrif]Creditors that use 
electronic mail or a courier to provide disclosures may also follow 
this approach. Whatever method is used to provide disclosures, 
creditors may rely on documentation of receipt in determining when a 
fee may be imposed.[ltrif] For purposes of Sec.  226.19(a)(1)(ii), the 
term ``business day'' means all calendar days except Sundays and legal 
public holidays referred to in Sec.  226.2(a)(6). See 
[C][rtrif]c[ltrif]omment 2(a)(6)-2. For example, assuming that there 
are no intervening legal public holidays, a creditor that receives the 
consumer's written application on Monday and mails the early mortgage 
loan disclosure on Tuesday may impose a fee on the consumer [after 
midnight on Friday][rtrif]on Saturday[ltrif].
    19(a)(2) Waiting period(s) required
    1. Business day definition. For purposes of Sec.  226.19(a)(2), 
``business day'' means all calendar days except Sundays and the legal 
public holidays referred to in Sec.  226.2(a)(6). See comment 2(a)(6)-
2.
    2. Consummation after [both][rtrif]all [ltrif] waiting periods 
expire. Consummation may not occur until both the seven-business-day 
waiting period and the three-business-day waiting 
period[rtrif](s)[ltrif] have expired. For example, assume a creditor 
delivers the early disclosures to the consumer in person or places them 
in the mail on Monday, June 1, and the creditor then delivers 
[corrected][rtrif]new[ltrif] disclosures in person to the consumer on 
Wednesday, June 3. Although Saturday,

[[Page 43393]]

June 6 is the third business day after the consumer received the 
[corrected][rtrif]new[ltrif] disclosures, consummation may not occur 
before Tuesday, June 9, the seventh business day following delivery or 
mailing of the early disclosures.
    19(a)(2)(i) Seven-business-day waiting period.
    1. Timing. The disclosures required by Sec.  226.19(a)(1)(i) must 
be delivered or placed in the mail no later than the seventh business 
day before consummation. The seven-business-day waiting period begins 
when the creditor delivers the early disclosures or places them in the 
mail, not when the consumer receives or is deemed to have received the 
early disclosures. For example, if a creditor delivers the early 
disclosures to the consumer in person or places them in the mail on 
Monday, June 1, consummation may occur on or after Tuesday, June 9, the 
seventh business day following delivery or mailing of the early 
disclosures.
    [rtrif]19(a)(2)(ii) Three-business-day waiting period.
    1. New disclosures in all cases. The creditor must provide new 
disclosures under Sec.  226.38 so that the consumer receives them not 
later than the third business day before consummation, even if the new 
disclosures are identical to the early disclosures provided under Sec.  
226.19(a)(1)(i).
    2. Content of disclosures. Disclosures made under Sec.  
226.19(a)(2)(ii) must contain each of the applicable disclosures 
required by Sec.  226.38.
    3. Estimates. Section 226.19(a)(2)(ii) provides that only the 
disclosures required by Sec. Sec.  226.38(c)(3)(i)(C), 
226.38(c)(3)(ii)(C), 226.38(c)(6)(i), and 226.38(e)(5)(i) may be 
estimated disclosures. Because estimated amounts of escrowed taxes and 
insurance premiums and mortgage insurance premiums disclosed (as 
applicable) under Sec. Sec.  226.38(c)(3)(i)(C), 226.38(c)(3)(ii)(C), 
and 226.38(c)(6)(i) are components of the total periodic payments 
disclosure required by Sec. Sec.  226.38(c)(3)(i)(D) and 
226.38(c)(3)(ii)(D) and the total payments disclosure required by Sec.  
226.38(e)(5)(i), those disclosures are estimated disclosures. (A total 
payments disclosure is not required for loans with a negative 
amortization feature subject to Sec.  226.38(c)(6).) Creditors may 
estimate components of the total periodic payments disclosures required 
by Sec. Sec.  226.38(c)(3)(i)(C), 226.38(c)(3)(ii)(C) and 
226.38(c)(6)(i) and the total payment disclosure required by Sec.  
226.38(e)(5)(i) only to the extent the estimated escrowed amounts and 
mortgage insurance premiums affect those disclosures.
    4. Timing. The creditor must provide final disclosures so that the 
consumer receives them not later than the third business day before 
consummation. For example, for consummation to occur on Thursday, June 
11, the consumer must receive the disclosures on or before Monday, June 
8.[ltrif]

ALTERNATIVE 1--PARAGRAPH 19(a)(2)(iii)

    [rtrif]19(a)(2)(iii) Corrected disclosures.
    1. Conditions for corrected disclosures. A disclosed annual 
percentage rate is accurate for purposes of Sec.  226.19(a)(2)(iii) if 
the disclosure is accurate under Sec.  226.19(a)(2)(iv). If a change 
occurs that does not render the annual percentage rate inaccurate, the 
creditor must disclose the changed terms before consummation, 
consistent with Sec.  226.17(f).
    2. Content of corrected disclosures. Disclosures made under Sec.  
226.19(a)(2)(iii) must contain each of the applicable disclosures 
required by Sec.  226.38.
    3. Estimates. In disclosures provided under Sec.  
226.19(a)(2)(iii), only the disclosures required by Sec. Sec.  
226.38(c)(3)(i)(C), 226.38(c)(3)(ii)(C), 226.38(c)(6)(i) and 
226.38(e)(5)(i) may be estimates. See comment 19(a)(2)(ii)-3 for a 
discussion of which of the disclosures required under Sec.  226.38 
creditors may estimate.
    4. Timing. The creditor must provide the corrected disclosures so 
that the consumer receives them not later than the third business day 
before consummation. For example, for consumma