Am I a lender if I do seller financing subject to lender rules?

Source a portion of an article from Barnes Waller Title

What is a loan originator under the Dodd-Frank Act?

In very general terms, if the loan will be secured by a property that the borrower will use for residential purposes, then the person who arranges the loan is defined as a “loan originator,” and must have a mortgage originator license. Seller-financers must be licensed mortgage originators unless they qualify for one of the two exceptions, which will be discussed below.

The Dodd-Frank Act defines mortgage originators as “any person who for direct or indirect compensation or gain or in the expectation of direct or indirect compensation or gain takes a residential mortgage loan application or offers or negotiates terms of a residential mortgage loan.” Please note there are different definitions and rules under various Federal and State laws that apply to mortgage loan originators, and they are very difficult to comprehend and reconcile with each other. The loan originator rules under the Dodd-Frank Act, however, require that said persons be licensed, are subject to certain restrictions on compensation, and must comply with vague guidelines on proving the borrower’s ability to repay.

Under the Dodd-Frank Act, any person who offers and negotiates terms of a residential mortgage loan is deemed to be a “mortgage loan originator” and must be a licensed mortgage broker in compliance with all laws, unless one of the seller-financing exceptions described below apply. There is no exemption for a person who is not a seller who wishes to make a loan secured by a residential mortgage. Lenders must be licensed mortgage brokers, or use the services of a licensed mortgage broker in connection with the loan. This applies only to mortgages that secure loans on residential dwellings containing one to four units, and includes houses, apartments, townhouses, condominium units, cooperative units, mobile homes, trailers and boats used as residences. The rules apply whether the individual is purchasing a primary residence, second home or vacation residence.

NON-APPLICABILITY

As indicated above, the Dodd-Frank Act applies only to residential mortgage loans.
1. Therefore, Dodd-Frank does not apply to loans secured by vacant land, commercial properties, rental properties or properties used for investment purposes. The rules also do not apply to residential properties on which the buyer does not intend to reside.

2. Further, Dodd-Frank does not apply to non-consumer buyers, even if the property being purchased is a residential property. Examples of non-consumer buyers are: corporations, limited liability companies, partnerships, etc.

Thus, if Dodd-Frank does not apply as set forth above, you do not have to analyze whether the transaction meets one of the two exceptions discussed below.

Thus, if Dodd-Frank does not apply as set forth above, you do not have to analyze whether the transaction meets one of the two exceptions discussed below.

EXCEPTIONS

Even if the transaction involves property being purchased by a consumer for their residence, the Dodd-Frank Act provides certain exceptions for sellers who wish to sell their property and take back a mortgage. Under these exceptions, the seller-financer will not fall under the definition of a “loan originator” if the seller and the financing terms meet certain criteria.

The two exceptions are as follows:

1. First, there is a one property exception. Under the first exception, a seller-financer who extends credit to a buyer as defined above, secured by a mortgage encumbering a residential dwelling, is not considered a “loan originator” if:
(a) they are a natural person, estate, or trust;
(b) they provide financing for only one property in a twelve month period;
(c) they own the property securing the financing;
(d) they did not construct or act as the contractor for the construction of a residence on the property;
(e) the financing must have a repayment schedule that does not result in a negative amortization;
(f) balloon payments are allowed (not less than 5 years recommended to be conservative; however, there is apparently a two-year window, and after two years this allowance may terminate);
(g) the financing must have a fixed rate or an adjustable rate that resets after five or more years, and there are restrictions, limitations, and caps on rate changes and lifetime caps of rates; and lastly,
(h) the seller does not have to vet the borrowers or determine the borrower’s ability to repay.

2. Second, there is a three property exception. Under this exception, the seller-financer is not considered a “loan originator” if:
(a) they are a natural person, estate, or trust, or an entity;
(b) they provide financing for three properties or less in any twelve month period;
(c) they own the property securing the financing;
(d) they did not construct or act as the contractor for the construction of a residence on the property;
(e) the financing must be fully amortizing and there must be no balloon payments or structures allowed;
(f) the financing must have a fixed rate or an adjustable rate that resets after five or more years, and must have caps on rate changes, and also lifetime caps.
(g) the seller must determine, in good faith, that the consumer has a reasonable ability to repay, and while the sellers are not required to formally document how they made their good faith determination that the buyer had the ability to repay, a prudent seller should keep records in case the analysis is ever called into question. This could include current or reasonably expected income or assets, income tax returns, employment, monthly payments, debt obligations, debt to income ratios, credit history, etc.

For both exceptions, adjustable interest rates must have reasonable annual and lifetime limits on rate increases and provide for the rate to be determined by the addition of a margin to an index rate based on a widely available index such as indices for U.S. Treasury securities or LIBOR. CFPB’s Official Interpretations note that an annual rate increase of up to 2 percentage points is reasonable. A lifetime rate cap or ceiling of 6 percentage points, up to any applicable usury limit, subject to a minimum floor, is reasonable. These “safe harbors” are not mandatory, but sellers would be wise to adopt them.

It is important to note that a corporation, partnership, or LLC can never avail itself of the one property exception, and may only use the three property exception. A potential loophole would allow for a corporation to convey the property in question to its individual members/owners, who could in turn provide seller-financing under the terms of the one property exception. However, taking advantage of such a loophole under the new laws is very risky, and not recommended at this point.
Additionally, no matter what, under either exception there can be no mandatory arbitration, and the parties cannot waive any of the Dodd-Frank requirements or restrictions.

3. There is an additional exception for lenders or sellers who finance less than six dwellings in a twelve-month period. Under this exception, these lenders are not considered “creditors,” and are exempt from the ability-to-repay provisions under 12 CFR §1026.43. However, they are still considered “loan originators” for purposes of the licensing and compensation requirements, and must still comply with other relevant provisions under Dodd-Frank. Therefore, seller-financers should rely only on the first two exceptions described above. As mentioned, the laws and definitions are very confusing and unclear.

4. Lastly, there are other exceptions for qualified mortgages, but they are very complicated and allow only for a presumption that the ability-to-repay requirements have been met. As a practical matter, these exceptions do not assist local seller-financers.

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