Prescreened Advertisements

QUESTION

I am the CEO of our company, and we were recently referred to your firm for assistance with our review of advertisements. We’re currently talking to your people about making sure we have reliable advertising review procedures. And we’ve already purchased your advertising manual. We hope to engage Lenders Compliance Group to work with us on our advertising procedures.

We do a lot of direct mail pre-approvals. I am writing to you because I am concerned about two recent consent orders from the CFPB that involve direct mail. Both of these cases involve direct mail advertising issues, caused by prescreening, relating to VA loans in particular.  

I want to do whatever is necessary to comply with proper prescreening procedures.

What are some basic procedures we need to be following on our prescreened advertisements?

ANSWER

Thank you for your question. It is a timely inquiry. The two companies are Sovereign Lending Group, Inc. (“Sovereign”) and Prime Choice Funding, Inc. (“Prime Choice”). The CFPB issued consent orders to both of them on July 24^th. These actions stem from the Bureau’s sweep of investigations of multiple mortgage companies that use deceptive mailers to advertise VA-guaranteed mortgages. Some state banking departments have been actively pursuing similar examinations and enforcement.

In the case of Sovereign, the consent order requires the company to pay $460,000 in civil monetary penalties and imposes requirements to prevent future violations. In the case of Prime Choice, the consent order requires the company to pay $645,000 in civil monetary penalties and imposes requirements to prevent future violations. In both cases, the principal means of advertising is through direct-mail campaigns targeted primarily at the United States military service members and veterans.

The Bureau alleged that Sovereign sent consumers hundreds of thousands of mailers for VA-guaranteed mortgages that contained false, misleading, and inaccurate statements or that lacked required disclosures, in violation of the Consumer Financial Protection Act’s (CFPA) prohibition against deceptive acts and practices, the Mortgage Acts and Practices – Advertising Rule (“MAP Rule”), and Regulation Z. Sovereign allegedly sent consumers numerous advertisements for VA-guaranteed mortgages that, among other things, misrepresented the credit terms of the advertised mortgage, misleadingly described an adjustable-rate mortgage as having a “fixed” rate, falsely stated that the consumer had been prequalified for the advertised mortgage, created the false impression that Sovereign was affiliated with the government, used the name of the consumer’s current lender in a misleading way, and failed to include multiple disclosures required by Regulation Z.

With respect to Prime Choice, the Bureau alleged that the company sent consumers millions of mailers for VA-guaranteed mortgages that contained false, misleading, and inaccurate statements or that lacked required disclosures, in violation of the CFPA’s prohibition against deceptive acts and practices, the MAP Rule, and Regulation Z. Prime Choice allegedly sent consumers numerous advertisements for VA-guaranteed mortgages, causing violations similar to those made by Sovereign.

There are several acceptable reasons for obtaining and using consumer reports, one of which is the intent to use them in connection with a prescreened “firm offer of credit or insurance.” This use is often referred to as “prescreening.” This type of marketing requires considerable regulatory compliance knowledge and support. Most financial institutions do not have the adequate level of expertise needed to review such marketing techniques to know how to prevent deceptive acts and practices, ensure compliance with the MAP Rule, and comply with Regulation Z.

Retaining a firm like Lenders Compliance Group for such support should be part of your prescreening review process. Just one, single error in prescreened marketing can cost considerable financial and regulatory risk. Please contact me HERE if you want to talk about your compliance concerns.

Your institution engages in prescreening activities if it either: 

• Obtains specific customer authorization for any prescreening; or
• Extends a firm offer of credit or insurance to each consumer identified by the prescreening.

The firm offer must be honored if the consumer is determined, based on information in a consumer report, to meet the specific criteria used to select the consumer for the offer.

There are several factors that you will need to state in your policy and implement in your procedures (and those procedures should be tested periodically). Four factors come to mind: disclosure, the record of criteria, opt-outs, and limited information. I will provide a brief overview of each factor.

Disclosure

With each prescreened solicitation, your institution should provide a clear and conspicuous statement that:

• Information contained in the consumer’s consumer report was used in connection with the transaction.
• The consumer received the offer of credit because the consumer satisfied the criteria for creditworthiness or insurability under which the consumer was selected for the offer.
• If applicable, your institution may choose not to extend credit if, after the consumer responds to the offer, the consumer does not meet the criteria used to select the consumer for the offer or any applicable criteria bearing on creditworthiness or insurability or does not furnish any required collateral.
• The consumer has a right to prohibit information contained in the consumer’s file with any consumer reporting agency from being used in connection with any credit or insurance transaction not initiated by the consumer. The consumer may exercise the right by notifying a notification system set up for that purpose.
• Includes the address and a toll-free number for the notification system.
• Is presented in a format, type size and manner that is simple and easy to understand, in accordance with FTC regulations (not yet adopted as of the date of publication of this book).

Record of Criteria

Your institution should keep on file the criteria used to select consumers for any prescreened offer.

Examples of criteria would include: 

• All criteria bearing on credit worthiness or insurability, as applicable, that are the basis for determining whether to extend credit or insurance pursuant to the offer.
• Any requirement for the furnishing of collateral as a condition of the extension of credit or insurance, until the expiration of the three-year period beginning on the date on which the offer is made to the consumer.

Opt-outs

Any prescreening must not include customers who have opted out of prescreening.

Limited information

In connection with any prescreening, your institution should receive from the consumer reporting agency only: 

• The name and address of each consumer.
• An identifier not unique to the consumer and used solely for the purpose of verifying the identity of the consumer.
• Other information pertaining to a consumer that does not identify the relationship or experience of the consumer with respect to a particular creditor or other entity.

Jonathan Foxx, Ph.D., MBA
Chairman & Managing Director
Lenders Compliance Group

FHA and VA Loans – Charging Notary Fees

QUESTION

We need some assistance regarding our ability as a lender to charge the borrower notary fees on FHA and VA loans when it is an employee of the lender who is acting as the notary. Can you please provide some guidance?

ANSWER

With respect to a VA loan, the lender may not charge the borrower a separate itemized notary fee, regardless if the notary is an employee or not. All such fees are intended to be covered by the 1% flat fee charge. 

[VA Lender’s Handbook Ch. 8.2-d]

With respect to an FHA loan, the current handbook provides that the lender may charge the borrower “reasonable and customary fees that do not exceed the actual cost of the service provided”. 

[HUD Handbook 4000.1.II.A.6.a.x(A)] 

The italicized section of the previous sentence implies that a lender may not charge for services provided by its employees as the lender did not incur any costs, as the employee’s salary is part of the lender’s overhead.

A prior version of the HUD handbook specifically delineated allowable fees which included a notary fee if notarization is required by the state and the notarization is performed by a notary who is not employed by the lender.  

[HUD 4000.2 Rev-3 Ch. 5-2(O)]  

HUD Handbook 4000.2 Rev-3 was superseded by Handbook 4155.2 which did away with the specific categories but stated that the cost for any item charged must not exceed the cost paid by the lender or charged to the lender by the service provider, thus making it impermissible to charge for services provided by the lender’s employees. Handbook 4155.2 has been superseded by Handbook 4000.1 discussed above.

Pertinent sections of the Handbooks cited above are set forth below.  

HUD Handbook 4000.1.II.A.6.a.x(A)

x. Closing Costs and Fees

The Mortgagee must ensure that all fees charged to the Borrower comply with all applicable federal, state and local laws and disclosure requirements.

The Mortgagee is not permitted to use closing costs to help the Borrower meet the Minimum Required Investment (MRI).

(A) Collecting Customary and Reasonable Fees. The Mortgagee may charge the Borrower reasonable and customary fees that do not exceed the actual cost of the service provided. The Mortgagee must ensure that the aggregate charges do not violate FHA’s Tiered Pricing rules.

HUD Handbook 4155.2 6.A.3.a Collecting Customary and Reasonable Fees

The lender may only collect fair, reasonable, and customary fees and charges from the borrower for all origination services. FHA will monitor to ensure that borrowers are not overcharged. Furthermore, the FHA Commissioner retains the authority to set limits on the amount of any fees that a lender may charge a borrower(s) for obtaining an FHA loan.

Aggregate charges may not violate FHA’s tiered pricing rules, per ML 94-16.

Additionally, FHA does not allow “mark-ups.” The cost for any item charged to the borrower must not exceed the cost paid by the lender, or charged to the lender by the service provider.

Only the actual cost for the service may be charged to the borrower.

HUD Handbook 4000.2 Rev-3 Ch. 5-2(O)

CLOSING COSTS AND OTHER FEES (05/04)

Listed below are the customary and reasonable fees and charges that may be collected from the borrower by the lender and used to meet the minimum investment requirement for purchases and added to the existing indebtedness for refinances. The cost for any item charged to the borrower must not exceed the cost paid by the lender or charged to the lender by the service provider.

* * *

O. Courier/Wire/Notary Fees. Courier fees and wire fees may be charged only on refinances and only for delivery of the mortgage payoff statement to the lien holder and for closing documents to the settlement agent. The borrower must agree in writing to pay for the courier and wire fees, prior to loan closing. Notary fees may be charged if notarization is required by state law and is performed by a notary who is not employed by the lender.

VA Lender’s Handbook Ch. 8, 2-d: Lender's One Percent Flat Charge (11/08/12)

In addition to the “itemized fees and charges,” the lender may charge the veteran a flat charge not to exceed one percent of the loan amount.

Calculate the one percent on the principal amount after adding the funding fee to the loan, if the funding fee is paid from loan proceeds (except Interest Rate Reduction Refinancing Loans (IRRRLs).

Note: For IRRRLs, use VA Form 26-8923, IRRRL Worksheet, for the calculation.

The lender’s flat charge is intended to cover all of the lender’s costs and services which are not reimbursable as “itemized fees and charges.”

The following list provides examples of items that cannot be charged to the veteran as “itemized fees and charges.” Instead, the lender must cover any cost of these items out of its flat fee:

• notary fees

Joyce Wilkins Pollison

Director/Legal & Regulatory Compliance

Lenders Compliance Group