The Consumer Financial Protection Bureau is finalizing the “Ability-to-Repay” rule which requires lenders to obtain and verify information to determine whether a consumer can afford to repay the mortgage. Our belief is the 2013 ATR final rule will dramatically alter the residential mortgage market making it more difficult to obtain another mortgage.

"It should be emphasized that a mortgage loan that is not a "qualified mortgage" and that does not meet the ability-to-repay requirement would subject the creditor and subsequent assignees to, among other things, civil liability under TILA and provide the borrower with a defense to foreclosure. In addition to actual damages, statutory damages in an individual or class action, and court costs and attorneys fees, the Dodd-Frank Act also amended TILA to include special statutory damages for a violation of the ability-to-repay requirement equal to the sum of all finance charges and fees paid by the consumer, unless the failure to comply was not material.^2"

Based off this information, we can infer that lending practices will be tighter and obtaining another mortgage will be more difficult for most to-be homeowners. If creditors now have penalties in the event that they do not fully qualify the borrower, then we can reasonably assume they will shift their lending to only those who they deem are “low risk.”

"A creditor shall not make a loan that is a covered transaction unless the creditor makes a reasonable and good faith determination at or before consummation that the consumer will have a reasonable ability to repay the loan according to its terms."⁴

To be clear, we are not criticizing or opposing this new rule as we don’t want to see another subprime mortgage crisis on our hands. However, current homeowners need to understand that their actions with their current home will determine their ability to obtain another mortgage in the future.

Rather than going through the whole foreclosure vs short sale debate, we’ll make this simple. Put yourself in the underwriters shoes and the new ATR rule now passed. You have two applicants with one credit report showing a Foreclosure and another showing “Paid for less than original amount.” According to Experian, most lenders typically report a short sale as a “settled” account.

Who do you think will obtain the loan and get to live in their new house?

Feel free to comment on what you think about the new Ability to repay rule. Thanks!

Peter