WASHINGTON — A little-known reward for brokers who arrange home loans at
high interest rates is drawing scrutiny from law enforcement authorities, who
say these bonuses can cost unwitting homeowners thousands of dollars over time.
Lenders pay the bonuses to independent brokers who sign up borrowers for mortgages
at higher interest rates than they qualify for. With these brokers now writing
an estimated 60% of home loans in the U.S., regulators are concerned that many
people are being steered into higher-rate loans without being aware of the higher
costs.
"With the growing role of mortgage brokers, my office and attorneys general
around the country have focused increased attention on these lending arrangements,"
California Atty. Gen. Bill Lockyer said in a statement to The Times. "We will
be monitoring the market to ensure abuses do not occur."
The bonus — typically worth thousands of dollars — is included in most loans
written by independent brokers, some industry experts say, and may be especially
prevalent in costlier mortgages that brokers arrange for borrowers with weak
credit.
In some cases, customers knowingly accept the higher rates. Homeowners who
plan to sell or refinance in a year or two, for example, can often save money
by taking a higher-interest loan and lowering their upfront closing costs.
But homeowners who settle on a higher rate and plan on staying put can spend
thousands of additional dollars over time. Consumer advocates and regulators
say this trade-off is often not understood by borrowers. They also caution
that brokers may not always make clear that they are rewarded by the lender
for loans with higher interest rates.
Kimberly Marumoto said she used a broker to get a mortgage for her Hermosa
Beach home and learned later — from her accountant — that she could have qualified
for a lower interest rate.
"It's almost like if you went to the store, and the store didn't tell you
you could actually get this item for 20% off," said Marumoto, who sells bedding
and table linens. "This whole home loan business thing is very daunting to
a first-time buyer."
Lockyer is part of a nationwide task force of prosecutors that in January
announced a $325-million settlement by Orange-based Ameriquest Mortgage Co.
for alleged deceptive lending practices. Under that agreement, Ameriquest's
loan agents cannot profit from bumping customers into loans at higher rates
than they qualify for.
A leader of the task force said that the practices of independent brokers
— who now write an estimated 60% of home loans — is an emerging focus, although
no cases are imminent. Up to now, investigators have concentrated on retail
lenders, such as Ameriquest, that deal with customers directly.
"We want to look at it because it may constitute a deceptive practice," said
Iowa Atty. Gen. Tom Miller, who led the Ameriquest case. "Consumers are paying
more than the fair market price of their loan."
The payments to brokers are known in the industry as yield spread premiums.
The terms vary by company but generally work the same way.
Say a consumer qualifies for a $400,000 loan at a 6.75% annual interest rate
and an upfront fee of 1 percentage point, or $4,000. If that same borrower
agrees to take the loan at 7%, a lender might reward the broker with a bonus
of half a percentage point, or $2,000.
The $2,000 is the yield spread premium. The "spread" reflects the difference
between the lower interest rate that the borrower could qualify for and the
higher interest rate that he or she actually paid. The "premium" is the reward
paid to the broker.
Although buying a home is a typical family's biggest financial commitment,
"here's a major component of it that folks are clueless about," said Michael
D. Calhoun, general counsel of the Center for Responsible Lending. "This obscurity
and confusion has been a huge boon to those brokers who want to overreach."
The National Assn. of Mortgage Brokers does not keep statistics on the prevalence
of such payments. But a Harvard study concluded that they were paid in 85%
to 90% of broker-arranged loans and averaged $1,850 in the late 1990s. With
the escalation in housing prices and the size of mortgages, those average
payments are probably higher today.
A 2002 analysis by the U.S. Department of Housing and Urban Development has
suggested that the payments amount to about half of brokers' income, with
the rest coming from other commissions and fees.
Brokers fiercely defend the incentives. Higher interest rates may enable borrowers
to finance closing costs and pay less upfront, they point out, in return for
accepting higher monthly payments. In those cases, federal officials and courts
have said the payments are legal compensation to brokers, who have the ability
to guide consumers through many loan choices.
The premiums "are not inherently bad or evil," said Tom Pool, an assistant
commissioner and spokesman with the California Department of Real Estate.
"They're in response to a need of the market."
Brokers also take exception to consumer advocates' complaint that they often
guide naive borrowers into costlier loans, without apprising them of their
choices, to pocket the fee from lenders.
The realities of the marketplace, said Harry H. Dinham, president-elect
of the National Assn. of Mortgage Brokers, leave brokers no choice but to
treat consumers fairly. "In my experience in this business, they're shopping"
for the cheapest loan. "You have to do the best you can to get them the best
deal you can provide, and work from there."
Brokers are supposed to disclose such payments on a "good faith estimate"
form, which borrowers get after they apply for a loan, as well as on the settlement
statement at the time of the loan's closing.
But the premium is not explained on the forms and often is not even
labeled. It may appear as a footnote or an abbreviation or be included in
a category such as broker compensation that occupies one line in a pile
of loan papers.
Said Lockyer: "We strongly recommend that consumers buying a home, refinancing
a loan or taking out a second mortgage take the time to ask brokers questions,
including whether they get any kickback or payment from the financial institution
for placing the loan with them. Consumers also should comparison shop and
consult with trusted advisors before signing on the dotted line."
In a reaction to the complexities of buying a home, a small group that has
dubbed itself Upfront Mortgage Brokers charges customers a flat fee agreed
on at the beginning of the loan process and emphasizes clear disclosure.
"There are people who say, 'I only charged the guy
1 point.' But no you didn't. You're getting 2 points more through the yield
spread premium," said Randy Johnson, owner of Independence Mortgage Co.
in Newport Beach and author of "How to Save Thousands of Dollars on Your
Home Mortgage."
Consumer advocates have long challenged the payment as an illegal kickback.
"I never met a consumer who knew what it is," said Ira Rheingold, general
counsel with the National Assn. of Consumer Advocates. "I never had a client
who knew they were paying a higher interest rate because of that charge."
The U.S. Department of Housing and Urban Development has long held that
the payments were legal if reasonably tied to services a broker had performed
for the borrower. In 2001, HUD also said their legitimacy could be determined
only on a case-by-case basis, a declaration that was accepted by courts
and had the effect of derailing class-action lawsuits challenging the bonuses.
The housing agency currently is mulling over whether to offer new proposals
affecting real estate purchases, including changes in disclosure requirements
for the broker payments.
The National Assn. of Mortgage Brokers contends that brokers should not
have to disclose the payment at all in part because lenders who don't use
brokers are not required to do so. Mortgage bankers who make loans without
brokers often sell them for a profit in the financial markets, earning larger
premiums for loans with higher interest rates. HUD, however, lacks the authority
to regulate those transactions.
"We feel like everybody should have to disclose a yield spread premium or
nobody should because of the confusion it causes the consumer," Dinham said.
Still, many in the lending industry agree that clearer disclosure requirements
would help the public.
"There's a growing consensus that the yield spread premium is an issue that
needs to be dealt with," said Howard B. Glaser, a former deputy general
counsel at HUD who is now counsel to the National Alliance of Independent
Mortgage Bankers.
"It's confusing to consumers and can cost them a lot of money if they don't
know what they're getting into," he added. "Most players in the industry
would agree that it's time to reform the disclosure of the yield spread
premium."