Although the regulatory compliance landscape is well-defined for mortgage lenders making loans to consumers, these implications can be less straightforward when it comes to business-purpose loans secured by residential real property, such as "fix and flip" loans and loans on residential rental property. A common misconception is that these types of loans, often made by private or "hard-money" lenders, are exempt from the federal and state laws and regulations that govern consumer lending. However, as the market for these loans proliferates, and regulators turn a closer eye to these activities, it is important to remember that "business purpose" does not mean "compliance exempt."
Applicability of TILA and RESPA
An important starting point is whether the loans are subject to the Truth in Lending Act (TILA) and the Real Estate Settlement Procedures Act (RESPA). Together with their implementing regulations, RESPA and TILA impose a number of significant compliance and disclosure obligations on mortgage lenders, including the TILA-RESPA Integrated Disclosure (TRID) Rule, the Ability-to-Repay/Qualified Mortgage (ATR/QM) Rule and the Loan Originator Compensation (LO Comp) Rule. If a loan is exempt from the coverage of TILA and RESPA, then these requirements will not apply.
However, the flip side to this is that lenders could face stiff penalties (and, with respect to certain violations, private rights of action) by incorrectly categorizing a loan as exempt. Because certain TILA provisions carry assignee liability, investors could likewise face exposure for violations. Consequently, lenders should pay careful attention when determining and documenting whether TILA and RESPA apply.
There are two key TILA exemptions potentially applicable. First, loans to non-natural persons are exempt. In other words, if the loan is extended to an entity as opposed to an individual, then TILA will not apply. Second, loans primarily for a business or commercial purpose are exempt. However, this exemption is more nuanced than the exemption for loans to non-natural persons.
The Official Commentary to Regulation Z, the implementing regulation of TILA, sets forth guidance for determining whether a loan can be considered to be primarily for a business purpose. A creditor must evaluate five factors in making a "business purpose" determination:
- the relationship of the borrower's primary occupation to the acquisition;
- the degree to which the borrower will personally manage the acquisition;
- the ratio of total income from the acquisition to the total income of the borrower;
- the size of the transaction; and
- the borrower's statement of purpose for the loan.
A special rule exists for non-owner-occupied rental property. Namely, a loan to acquire, improve or maintain non-owner-occupied rental property will always be deemed to be for business purposes. The threshold for determining owner occupancy is whether the owner plans to occupy the property more than 14 days during the coming year. Owner-occupied rental properties may still be considered business purpose, but separate tests apply.
Regulation X, the implementing regulation of RESPA, does not contain a specific exemption for loans to non-natural persons. However, it specifically exempts loans that are primarily for a business or commercial purpose, and relies upon the definitions and guidance set forth in Regulation Z for purposes of this determination.
Other Considerations Under Federal Law
The applicability of TILA and RESPA is a helpful starting point, but is not the end of the analysis. Other consumer financial laws and regulations--including, but not limited to, the Fair Housing Act (FHA), the Equal Credit Opportunity Act (ECOA), the Fair Credit Reporting Act (FCRA), the Servicemembers Civil Relief Act (SCRA), the Electronic Fund Transfer Act (EFTA), the Home Mortgage Disclosure Act (HMDA) and flood insurance requirements--either apply equally to consumer and business credit or have specific provisions that can apply to business credit.
For example, FHA applies to any person or entity whose business engages in "residential real estaterelated transactions," which includes the making or purchasing of loans or providing other financial assistance: (a) for the purchase, construction, improvement, repair or maintenance of a dwelling or (b) that is secured by residential real estate. It also applies to the selling, brokering or appraising of residential real property. As a result, FHA applies irrespective of whether the loan is for the acquisition of investment properties and irrespective of whether the borrower is a corporate entity or an individual. Similarly, ECOA applies broadly to both consumer and business credit, equally imposing nondiscrimination and notice requirements to all types of credit. In certain circumstances, both FHA and ECOA can also apply to the creditor's purchasers and assignees.
Further, guarantors, co-applicants or additional signatories are often required for business purpose loans, which can trigger special considerations under Regulation B (the implementing regulation of the ECOA), FCRA, SCRA and Regulation E (the implementing regulation of the EFTA). The valuation requirements under ECOA (which require creditors to furnish copies of appraisals and other written valuations to applicants) also apply to any applications for credit to be secured by a first lien on a dwelling, whether that credit is for a business or consumer purpose. In that same vein, the type and location of the collateral dictates the potential application of the flood insurance laws, irrespective of the business purpose of the loan.
Another noteworthy consideration is that the 2015 amendment to Regulation C, the implementing regulation of HMDA, significantly broadens the types of transactions that will be HMDA-reportable. A closed-end mortgage loan or open-end line of credit made primarily for a business purpose will be an excluded transaction, but this exclusion will not apply if the loan or line of credit meets Regulation C's definition of a home purchase loan, home improvement loan or refinancing. This means that a closed-end mortgage loan or open-end line of credit to purchase or improve a single-family investment property or multifamily dwelling (or a refinancing of such) will not be excluded from HMDA reporting on businesspurpose grounds.
State Law Considerations
In addition to federal law considerations, business-purpose lenders may be subject to a number of state law requirements. Some states require licensure for lenders making loans secured by residential real property, regardless of whether these loans are for a consumer or business purpose. Since these requirements vary significantly by state, lenders should carefully review and consider the licensing requirements in each of the jurisdictions where they do business.
For example, a bill currently pending in the Florida legislature proposes to make Florida's mortgage lending laws, including the licensing requirements, applicable to business-purpose loans.1 The bill was prompted by concerns that some lenders are circumventing licensing and disclosure requirements by making residential loans under the guise of business purpose, and that loans made by unlicensed lenders can facilitate money laundering.2
In addition to licensing requirements, other state laws governing various aspects of residential mortgage lending--such as those prohibiting predatory lending, high-cost loans, referral fees, and unfair and deceptive acts and practices (UDAP)--may also apply to business-purpose loans.
In today's regulatory environment, lenders making business-purpose loans should be mindful of their federal and state compliance obligations and should have appropriate policies and procedures in place to address these requirements. In addition, investors and purchasers interested in acquiring businesspurpose loans should take these considerations into account when performing due diligence reviews of the assets and the originators as well as when structuring the acquisition and holding of these loans. Although many of the laws and regulations discussed above are viewed as consumer financial laws, in actuality, their applicability can be much broader. The potential consequences of noncompliance can be severe, not only for the originating lender, but for purchasers and assignees as well.