When Lenders Compete - YOU WIN!

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Have you ever looked at the paperwork you get when financing or refinancing a home?

Really. No kidding. Have you ever read the stuff people want you to sign?

There are a lot of scraps thrown our way at closing, and I have yet to meet anyone who has either read all of the documentation or totally understood what it meant — me included.

However, there is one piece of paperwork I very much understand and you should too: My loan officer doesn't work for me. He's not my agent and he's not required to get the best possible rates and terms for me.

For proof, let's turn to some of the paperwork I received from a recent loan:

“This fee disclosure represents the entire agreement between the parties hereto and no waiver or modification, or any other addition to the terms hereto shall be deemed effective unless evidenced by a written instrument signed by all parties hereto. It is further agreed that this disclosure shall be construed as creating no more than a contractual agreement between the parties hereto and not any type of agency relationship, fiduciary responsibility or other trust relationship or responsibility.”

The oddity of this situation is overwhelming: A real estate broker or attorney must place your interests first while a car salesman, telemarketer or loan officer has no such obligation.

You can see the conflict.

Where do borrowers get mortgage information? From loan officers. Borrowers are absolutely dependent on loan officers to scout the marketplace for the best possible deals given the borrowers’ financial profile.

How do loan officers and lenders maximize incomes? Just like car salesmen and telemarketers, by selling products which produce the highest commissions and the largest revenues.

It doesn't have to be this way. For example, since 2001 North Carolina law has required mortgage brokers to “make reasonable efforts, with lenders with whom the broker regularly does business to secure a loan that is reasonably advantageous to the borrower considering all the circumstances, including the rates, charges, and repayment terms of the loan and the loan options for which the borrower qualifies with such lenders.”

The problem with the North Carolina law is that it does not apply to any federally regulated lender. However, under the proposed Borrower's Protection Act (S 1299), legislation introduced by New York Senator Charles Schumer, every mortgage loan officer across the country would have a “fiduciary relationship with the consumer.” In other words, the job of the lender would be to get the borrower the best possible loan.

Instead of supporting such legislation, the mortgage lending industry wants a different approach: According to John Robbins, Chairman of the Mortgage Bankers Association, his group supports the “national, uniform regulation of mortgage brokers including a national database of approved brokers. A clear, fair national regulatory standard for mortgage brokers is an essential step to establishing much better mortgage lending protections for borrowers.”

Such standards, says Robbins, “must be national in scope to enhance competition in all markets for all borrowers, especially nonprime.”

The catch is that if there are uniform national standards then state laws such as those in North Carolina would become useless. Under the concept of preemption, when federal and state rules conflict the federal rules take precedence.

And what national standards do lenders oppose?

As one example, Robbins says his group is “concerned with language regarding the prohibition against lenders and brokers steering borrowers into loans or loan terms that are not ‘reasonably advantageous to the consumer, in light of all the circumstances.’ While MBA opposes steering and favors informed consumer choice, this type of standard would force loan originators to determine whether a loan is suitable for a borrower. MBA has carefully studied the issue of the potential effects that the imposition of a variety of approaches to suitability would have on the mortgage market. MBA has concluded that imposition of such a standard would not provide benefits that would outweigh the costs to consumers, lenders and other market participants.”

How, exactly, would consumer costs increase if lenders were required to place borrower interests first? Would not loan expenses go down if lenders were obligated to present the best possible options to client borrowers? If loan costs were reduced, would not mortgage delinquencies and foreclosure levels decline? Aren't such results good for lenders and investors?

Robbins says his group “does not believe that a disclosure of function and fees is warranted for mortgage lenders. Unlike a broker whose role may be uncertain — agent or loan provider — a lender's role is clear. A lender underwrites, approves and funds the loan. The lender does not hold himself out as an agent of the borrower. While a lender must serve its customers fairly, and the industry has done much to assure high professional standards, a lender owes a duty to its shareholders and investors. A borrower knows a lender offers its own products and does not offer to shop for borrowers.”

Borrowers know such things? How many mortgage ads explain that a lender is not selling the best possible loan to a borrower?

“Regulation limits competition,” explains Jim Saccacio, Chairman and CEO at RealtyTrac, the nation's largest foreclosure resource. “When we regulate doctors, lawyers or barbers, we're saying that not everyone can open a clinic, law office or barber shop. In exchange for limiting competition and therefore raising the income of licensed professionals, as a society we expect those who are licensed to meet certain standards of education and responsibility.

"If we're going to have uniform regulation nationwide that limits mortgage competition, then the public should get something in return,” Saccacio explained. “That ‘something’ should be the expectation that my lender will take every reasonable step to get me the best possible loan and that I will know all the fees, charges and commissions involved. That's no more than someone buying a shirt in a department store would expect — and no less than borrowers should accept.”
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Peter G. Miller is the author of the Common-Sense Mortgage and is syndicated in more than 100 newspapers.