(1) It is an unfair
or deceptive act or practice for a mortgage broker or lender to make any
representation or statement of fact if the representation or statement is false
or misleading or has the tendency or capacity to be misleading, or if the
mortgage broker or lender does not have sufficient information upon which a
reasonable belief in the truth of the representation or statement could be
based. Such claims or representations include, but are not limited to the
availability, terms, conditions, or charges, incident to the mortgage
transaction and the possibility of refinancing. In addition, other such claims
and representations by the broker may include the amount of the brokerage fee,
the services which will be provided or performed for the brokerage fee, the
borrower's right to cancel any agreement with the mortgage broker, the
borrower's right to a refund of the brokerage fee, and the identity of the
mortgage lender that will provide the mortgage loan or commitment.
(2) It is an unfair or deceptive act or
practice for a broker or lender to charge an application and/or broker fee
which significantly deviates from industry-wide standards or is otherwise
unconscionable.
(3) It is an unfair
or deceptive act or practice for a mortgage broker or lender to accept any
broker fee, application fee or other fee, prior to the borrowers receipt of any
disclosure forms mandated by
940 CMR
8.05(1). Where the
applicable state or federal law specifies that the disclosure form must be
provided to a consumer prior to the consummation of the mortgage loan.
Notwithstanding the foregoing, an appraisal fee may be accepted if the lender
or brokers provides oral or written notice, prior to the receipt of such fee,
as to whether the fee is refundable.
(4) It is an unfair or deceptive act or
practice for a mortgage broker or lender to engage the services of (another)
mortgage broker that will charge the borrower an additional fee without
obtaining in advance the written permission of the borrower to charge that fee,
the amount of which shall be specified in writing.
(5) It is an unfair or deceptive act or
practice for a mortgage broker or lender to directly or indirectly, regardless
of the receipt or the expectation of receipt of compensation from the
contractor, to:
(a) provide loan application
documents to home improvement contractors for use by such contractor in
connection with the financing by mortgage loans of home improvement
contracts;
(b) use a home
improvement contractor as an agent for its business; or
(c) accept mortgage applications from
contractors.
940 CMR 8.06(5) shall not prohibit contractors from referring
consumers to mortgage brokers or lenders, or lenders from purchasing executed
home improvement contracts.
(6) It is an unfair or deceptive act or
practice for a mortgage broker or lender to procure or negotiate for a borrower
a mortgage loan with rates or other terms which significantly deviate from
industry-wide standards or which are otherwise unconscionable. To determine
whether the Annual Percentage Rate (APR), for example, is unconscionable,
factors to consider include whether the APR at the time the loan was made is
more than, the greater of:
(a) ten percent
above the highest domestic "Prime Rate" listed in the Money Rates section of
The Wall Street Journal; or
(b) 20%
percent; and
whether the APR is consistent with comparable rates for
borrowers in similar financial circumstances.
(7) It is an unfair or deceptive act or
practice for a mortgage lender to act also as a mortgage broker directly or
indirectly in the same mortgage loan transaction, or to violate
209 CMR
42.04(4) or
42.07(4).
(8) It is an unfair or deceptive act or
practice for a lender to fail to disburse funds in accordance with any
commitment or agreement with the borrower.
(9) It is an unfair or deceptive act or
practice for a mortgage broker or lender to conduct business with a person
which should be licensed under M.G.L. c. 255E, and which it knows or should
know is an unlicensed mortgage broker or lender.
(10) It is an unfair or deceptive act or
practice for any mortgage lender to charge a prepayment fee which:
(a) violates M.G.L. c. 183, §
56;
(b) significantly deviates from
industry-wide standards; or
(c) is
otherwise unconscionable.
(11) It is an unfair or deceptive act or
practice for a mortgage broker or lender to fail to give to the borrower or his
or her attorney the time and reasonable opportunity to review every document
signed by the borrower and every document which is required pursuant to 940 CMR
8.00, prior to the disbursement of the mortgage funds.
(12) It is an unfair or deceptive act or
practice for a mortgage broker or lender to accept any fees which were not
disclosed in accordance with 940 CMR
8.00 or applicable law.
(13) It is an unfair or deceptive act or
practice for a mortgage broker or lender to accept any attorneys fees in excess
of the fees that have been or will be remitted to its attorneys.
(14) It is an unfair or deceptive act or
practice for a mortgage broker or lender to refuse to permit the borrower to be
represented by the attorney of his or her choice. Nothing contained herein
shall limit the lenders right to choose its own attorney, which may be paid for
by the borrower.
(15) It is an
unfair or deceptive act or practice for a mortgage broker to arrange or
mortgage lender to make a mortgage loan unless the mortgage broker or lender,
based on information known at the time the loan is made, reasonably believes at
the time the loan is expected to be made that the borrower will be able to
repay the loan based upon a consideration of the borrower's income, assets,
obligations, employment status, credit history, and financial resources, not
limited to the borrower's equity in the dwelling which secures repayment of the
loan (subject, however, to the treatment of No Income Loan Products in 940 CMR
8.06(16)). The determination under 940 CMR
8.06(15) of a borrower's ability to
repay a loan shall take into account, without limitation:
(a) the borrower's ability to repay at the
fully indexed rate, assuming a fully amortizing repayment schedule, and the
resulting scheduled payments that may be charged under the loan accounting for
interest rates, financial terms or scheduled payments that may adjust upward;
and
(b) the property taxes that are
required on the subject property at the time the loan is expected to be made
and the reasonably anticipated insurance costs if the loan requires that
insurance be maintained on the property, regardless whether the broker or
lender will collect an escrow for such taxes or insurance in connection with
loan payments.
For purposes of 940 CMR 8.06(15)(a), the "fully indexed rate,"
with respect to loan rates that may adjust upward, shall mean the index rate
prevailing at the date of loan origination plus the margin to be added to it
after the expiration of an introductory interest rate. For purposes of
illustration, assume that a loan with an initial fixed rate of 7% will reset to
the six-month London Interbank Offered Rate (LIBOR) plus a margin of 6%. If the
six-month LIBOR rate equals 5.5% at the date of origination, the determination
of ability to pay under 940 CMR 8.06(15)(a) shall take into account the
borrowers ability to repay at 11.5% (5.5% plus 6%), regardless of any interest
rate caps that limit how quickly the fully indexed rate may be reached.
(16) It is an unfair or
deceptive act or practice for a mortgage broker or lender to process or make a
mortgage loan without documentation to verify the borrower's income (a
so-called "no documentation," "no doc," "stated income" or "limited
documentation" loan) unless the broker or lender, as applicable, first provides
a written document to the borrower, which must be signed by the borrower in
advance of the closing, and which:
(a)
identifies the borrower's income and the source of the income; and
(b) provides detailed information, if true,
that by applying for a mortgage loan on a no- or limited documentation basis,
the consumer will pay a higher interest rate or increased charges, or have less
favorable terms for the mortgage loan (including information concerning the
precise increase in interest rate, charges, or the nature of the less favorable
terms).
Provided, however, that if a mortgage broker or lender arranges
or makes a mortgage loan using a No Income Loan Product, which loans shall
remain subject to 940 CMR 8.06(15), the requirement in 940 CMR 8.06(16)(a)
shall not apply. It is an unfair or deceptive act or practice for a mortgage
lender or broker to process or make a mortgage loan on a no- or limited
documentation basis if the stated income provided by the borrower with respect
to the no- or limited documentation loan contradicts information previously
obtained by the broker or lender with respect to that borrower in connection
with the same proposed loan, absent a documented change in circumstances or
other documented explanation for the discrepancy between the prior information
and latter income representation. Notwithstanding the foregoing, it shall be an
unfair or deceptive act or practice for a mortgage lender to underwrite or
close a loan without first verifying the employment or income of the borrower
when the amount of the income stated is not reasonable for the actual
employment status or experience of the borrower known to the lender, or when
the borrower's stated employment or stated income is not reasonable in light of
the borrower's circumstances known to the lender.
(17) It is an unfair or deceptive act or
practice for a mortgage broker to process, make or arrange a loan that is not
in the borrower's interest. Where the financial interest of a mortgage broker
conflicts with the interests of the borrower (for example, where the broker's
compensation will increase directly or indirectly if the borrower obtains a
loan with higher interest rates, increased charges or less favorable terms than
those for which a borrower would otherwise qualify), the broker shall disclose
the conflict and shall not proceed to process, make or arrange the loan so long
as such a conflict exists. It is an unfair or deceptive act or practice for a
mortgage broker to disclaim the duty established by 940 CMR
8.06(17) in a
written contract or to assert in oral representations that a broker does not
have such a duty in communications with the borrower.
(18) It is an unfair or deceptive act or
practice for a mortgage lender:
(a) to use a
pricing model for its mortgage loans which treats borrowers with similar credit
criteria and bona fide qualification criteria differently; or .
(b) to make a mortgage loan when any or all
of the cost features of the mortgage loan are based on criteria other than the
borrower's credit and other bona fide qualification criteria.
For purposes of 940 CMR 8.06(18), "bona fide qualification
criteria" shall mean those account in determining whether to extend a mortgage
loan, including by way of example, income, assets, credit history, credit
score, income-to-debt ratios or loan-to-value ratios. For purposes of 940 CMR
8.06(18)(b), the term "cost features" shall include, but not be limited to, the
interest rate; the index; margin; and other adjustment features if the interest
rate is adjustable; points; and prepayment penalties.
