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Agenda - Transactions and Regulatory Committee

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Thursday, January 24, 2013
8:00 - 11:30 a.m.

Mission Statement
The Committee is a Policy committee. Its mission is to develop C.A.R.'s overall policy agenda as it relates to the practice of real estate. It has original jurisdiction to evaluate transactional issues, legislation and regulation in the following issue areas:

Liability and Risk Management
Real Estate Finance

Each issue area is managed during the Committee's meeting by an Issue Chair, under the direction of a committee Chair and committee Vice-Chair. The Committee has jurisdiction over issues that are potentially real estate related that do not fall into another committee's jurisdiction.

Dennis Badagliacco, Chair
John Schulte, Vice Chair

Issue Chiars:
Winnie Davis, Real Estate Finance
Patricia Hicks, License and Regulatory
James Irving, Transactional
Michael Tessaro, Liability and Risk Management

Virginia Butler, Executive Committee

Matthew Roberts, Federal Issues
Stan Wieg, Staff Vice President, Legislative Advocate

I. Welcome and Opening Remarks - Dennis Badagliacco, Chair

II. Review of the Public Policy Processes

III.  Update on Previously Approved Sponsored Legislation for 2013State Issues

A. Regulatory Notification Registry

B. Retention of DRE staff

C. SB 30 (Calderon) - Debt Forgiveness Income Tax

IV. State Issues

A. Action Required

1. Appraisal Reform* - The included position paper explores whether it is feasible to sponsor legislation to address so-called "geographic incompetence" of out of area appraisers, and possible conflicts of interest in Appraisal Management Company ownership.
2. Lender Disclosures on REO properties* - The included position paper explores whether C.A.R. should sponsor legislation to repeal the lender's exemption from the requirement to complete a Transfer Disclosure Statement (TDS) on property acquired through foreclosure. 

B. Direction Requested

1. Point of Sale Requirements* - Should C.A.R. adopt a general policy to oppose legislative or regulatory requirements that delay transactions or impose unrecoverable costs? The included position paper explores the different proposals that attempt to use property transfer as a "trigger event.
2. Assumable Title* - A legislative proposal based upon the assumable title legislation (SB 319, Burton) that C.A.R. sponsored in 1994 is being considered, and C.A.R. has been asked whether it would SPONSOR the legislation if it was introduced again in 2013. The included position paper explores the history of the hard-fought, but unsuccessful, effort of the proposal in 1994.
3. C.A.R. Ethics and Professionalism Task Force* - Task Forces typically report directly to the Board of Directors for action; however, the Ethics and Professionalism Task Force will provide an update to the Committee regarding issues within the Committee's jurisdiction. The report of the C.A.R. Ethics and Professionalism Task Force is expected to contain a recommendation to sponsor legislation to require licensees to complete one fourth of their required 45 hours of continuing education during each year of the 4-year real estate license.   Other recommendations my include a requirement that the required Ethics continuing education course be completed in an interactive format and not included in a combined or "updates" course.

C. Updates on State Legislation of Others.

D. Other

V. Federal Issues

A. Direction Requested

1. FHA Premiums - Starting sometime in 2013, FHA will announce the requirement that new FHA endorsed loans will have mortgage insurance premium (MIP) payments for the life of the loan regardless of LTV.  This proposal will roll back a change made in 2001 to allow borrowers to cancel their MIP once a certain LTV was reached.  Should C.A.R., in connection with NAR, take a position on the proposal?
2.  Eminent Domain - In September of 2012 C.A.R. took a position to "'SUPPORT' legislation to prohibit the use of eminent domain to seize 'underwater' notes."

At the suggestion of a San Francisco based venture capital firm, Mortgage Resolution Partners (MRP) cities and counties are exploring the idea of local governments using eminent domain authority to seize performing mortgage notes of "upside down" or "underwater" homeowners, and then refinance them at the homes' current value, and sell that new note to a new investor. 

The proposal to use eminent domain has not yet actually been used, but has received broad attention throughout California and has been considered by cities in other states. San Bernardino seems closest to actually condemning a note. The securities industry (SIFMA) and the Jarvis taxpayers association are reportedly threatening to sue if the local jurisdiction actually acts.  

Some proposed legislation at the federal level would require federal entities to impose a sort of "scorched earth" policy that prohibits any federally related lending, even to legitimate and qualified homebuyers, in a jurisdiction that participates in the proposed scheme. Should C.A.R.'s support for prohibition legislation be limited to proposals that do not prejudice legitimate transactions?

Other issues arising in federal legislation.

B. Updates

1. Federal Housing Administration (FHA) Update

 FHA Financial Health
On November 16, the FHA released their Annual Report to Congress and the Actuarial Review of the 2012 Financial Status of the FHA Mutual Mortgage Insurance Fund.  The Review shows that the reserve ratio has fallen to negative 1.44 percent. This reserve is required to be at or above 2 percent.  However, FHA is not bankrupt.  FHA's current cash reserves total $25.57 billion.  However, FHA does not currently have 30 years’ worth of reserves, as is required by statute.  The cause for the decline rests in three major areas:

• Higher than expected defaults for loan issued in 2007-2009,
• Low house price appreciation estimates used in the audit, and
• Continued low interest rates (which hurts FHA when borrowers refinance early out of FHA loans, and FHA loses the premium revenue).
b. Other FHA Changes
FHA has been working with Congress since the release of the audit on what changes will be made to strengthen FHA’s financial position.  In a letter to Senator Corker FHA outlined some significant changes.  These will have an immediate impact on consumers.

• Raising DTI for borrowers with low credit scores.  FHA will require borrowers with credit scores below 620 to have a maximum DTI (debt to income ratio) of 43%
• Moratorium on full cash out HECM (reverse mortgages)
• Raising the downpayment for loans above $625,500 to 5%
• Greater oversight on borrowers who are trying to obtain a new FHA loan 3 years following a foreclosure.
2. Reform of the Government Sponsored Enterprises (GSEs)
Fannie Mae and Freddie Mac (Government Sponsored Enterprises or GSE) have now been under the conservatorship of the Federal Housing Finance Agency (FHFA) since September 2008.  However, reforming these mortgage giants, which guarantee or own roughly 50 percent of all outstanding mortgages, does not appear to be a top priority for either side of the isle.  In the wake of inaction by Congress, the Treasury Department and the FHFA have begun taking steps to wind down the GSEs.  This includes a “sweep” of all GSE profits to go towards the repayment of government loans and an acceleration of the shrinking of the GSEs’ mortgage portfolios.  These steps will prevent Fannie Mae and Freddie Mac from growing new business and becoming the mortgage giants they were before.
3. Federal Housing Finance Agency (FHFA) Single Platform
FHFA has proposed a framework for both a new securitization platform and a model Pooling and Servicing Agreement.  The Strategic Plan envisions the building and use of a new infrastructure by Fannie Mae and Freddie Mac (Government Sponsored Enterprises or GSE) as an efficient, logical extension of existing FHFA initiatives aligning the standards and practices of the GSE.

It also envisions that this effort could have broader application to the future housing finance market.  The hope is the platform will be utilized by all entities that want to securitize mortgage backed securities.
4. Qualified Mortgage (QM) and Qualified Residential Mortgage (QRM)
Lenders and investors continue to wait for the Consumer Financial Protection Bureau (CFPB) to announce their final rule on the QM and QRM.  The CFPB is required to announce their final rule on the QM by January 21, otherwise the statute language will be implemented; however, the CFPB is expected to issue a rule.  The QM is intended to clearly define what a lender must do to prove they believe a borrower has the ability to repay a loan they are made.  Once the QM rule is finalized, the CFPB and other regulators will turn their attention to the QRM, which will define what a loan must look like in order for lenders to avoid holding capital against mortgages that they securitize.
5. FHA and Conforming Loan Limits
The FHA and FHFA have announced that the 2013 loan limits for FHA, Fannie Mae and Freddie Mac will remain unchanged.  FHA’s loan limit cap will remain at $729,750 (actual limit will vary by metropolitan statistical area) through 2013.  Fannie Mae’s and Freddie Mac’s loan limit cap is $625,500, which is their permanent loan limit.  It is likely that some members of Congress will look to decrease these loan limits in an effort to increase private capital market share.