Dodd-Frank Act Qualified Mortgage Rule Impacting Seller Carry Back Financing

by Scott Drucker on February 7, 2013



UPDATE: This information was updated on February 7. To read the most current information, read the article on AAR’s website:

The Consumer Financial Protection Bureau Issues Additional Regulations Pertaining to Seller Carryback Financing


Original Article Posted on January 14, 2013:
On July 21, 2010, President Barak Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protections Act (the “Dodd-Frank Act”), which generally requires all residential mortgage loans, including seller carry back financing, to be offered and negotiated by licensed loan mortgage originators.

Critical to the Dodd-Frank Act is Title XIV, which creates stringent consumer protections designed to shield borrowers against predatory lending practices. While the term “mortgage originator” is defined broadly under the Act, an exemption exists whereby under certain circumstances, property owners offering seller carry back financing are excluded from having to obtain a loan originator’s license provided that the property owner provides mortgage financing for less than a pre-determined amount of properties in any 12 month period. In order to additionally qualify for this Title XIV exemption, the following five requirements must be satisfied:

  1. The seller did not construct the home to which the financing is being applied.
  2.  The loan is fully amortizing, meaning no balloon mortgages are permitted.
  3. The seller determines in good faith and documents that the buyer has a reasonable ability to pay back the loan.
  4. The loan has a fixed rate or is adjustable after five or more years, subject to reasonable annual and lifetime caps.
  5.  The loan meets other criteria set by the Federal Reserve Board.

In the event of deviation from these requirements, the buyer has up to three years to rescind the sale and demand a return of all money paid.

On January 10, 2013, the Consumer Financial Protection Bureau implemented an “ability-to-repay rule” that provides guidance to lenders and consumers seeking to comply with the above-referenced Dodd-Frank provisions. The Consumer Financial Protection Bureau’s final rule addressing a consumers’ ability to repay mortgage loans takes effect on January 10, 2014. Pursuant to the rule, all lenders, including seller carry back lenders, must consider and verify, at a minimum, the following eight underwriting standards:

  1. Current income or assets;
  2. Current employment status;
  3. Credit history;
  4. The monthly payment for the mortgage;
  5. The monthly payments on any other loans associated with the property;
  6. The monthly payment for other mortgage related obligations (such as property taxes);
  7. Other debt obligations; and
  8. The monthly debt-to-income ratio or residual income the borrower would be taking on with the mortgage.

The seller carry back lender must also consider the borrower’s ability to repay both the principal and interest over the long term, not just during a teaser rate period. AAR will keep members abreast of information as it becomes available throughout the year.

To Read NAR’s Summary of the Rule, go to http://www.ksefocus.com/billdatabase/clientfiles/172/4/1714.pdf.


Enjoy this post? Get the latest blog.aaronline.com posts sent to you by subscribing via email or RSS.

Scott Drucker

Scott M. Drucker, Esq. is General Counsel to the Arizona Association of REALTORS® (AAR). He serves as the primary legal advisor to the association. Scott oversees AAR’s Risk Management Committee, which includes professional standards administration for twenty of the state’s local REALTOR® associations, and the development of standard real estate forms. Please note that this post is of a general nature and may not be updated or revised for accuracy as statutes and case law change following the date of first publication. Further, this post reflects only the opinion of the author, is not intended as definitive legal advice and you should not act upon it without seeking independent legal counsel.

To see more posts by this author, click here.

{ 1 trackback }

Have a Happy Weekend!
January 18, 2013 at 9:19 am

{ 5 comments… read them below or add one }

Sandra Paulow January 16, 2013 at 3:08 pm

I’m sure AAR is looking in to this and plans to provide us with some guidance on this. IMO this is a disaster for many property owners who’s properties cannot be sold any other way other than a Seller Carry or for cash. What about older mobile homes that can’t qualify for financing through a financial institution? What about rural properties that don’t fit the bill for conventional financing? What happens to the values of those properties? Than you Dodd Frank, this just killed a lot of sales of Real Estate.

Admin January 16, 2013 at 3:23 pm

Hi Sandra! Thank you for your thoughtful comment. NAR addressed some of your concerns in a brief here: http://www.realtor.org/articles/summary-of-new-qualified-mortgage-qm-rule
AAR will be monitoring this very closely and will make sure that any updates are communicated.

Ron Volkman January 19, 2013 at 10:01 am

How in the hell did this ‘owner carryback’ sledgehammer get through? We have GOT to go for amending ASAP.

Adam H Cravets January 28, 2013 at 8:11 am

One question: How many owner carryback loans were fraudulent or harmed buyers? I am betting very few if any. So let’s punish the property owner for the lending institution’s mess. Makes sense to me.

Gary Market April 29, 2013 at 4:00 pm

So an owner doing a carry-back can still NOT have a balloon?

Leave a Comment

Previous post:

Next post: