Must Mortgage Brokers Reveal All Charges?
October 11, 1999
"I'm persuaded that I can do better going to a mortgage broker than to a
lender but I have received conflicting and confusing information about
whether or not a broker must disclose all the money they make on a
transaction to their customers…Can you clarify?"
Let me try using a concrete example. M is a mortgage broker in
California standing between a borrower B and a lender L. This morning L
faxed M its prices for the day. Each "price" consists of a) the interest
rate, b) points (an upfront charge expressed as a percent of the loan),
and c) the "lock period" for which L will guarantee the rate and points.
Among the rate/point combinations L offered on 30-year fixed-rate loans
with terms locked for 45 days was 7%/1.5 points and 7.625%/-1.5 points.
In other words, L wants to be paid 1.5 points for a 7% loan but will pay
1.5 points for a 7.625% loan.
M makes a living by adding a markup to the points quoted by L. If the
markup is 1.5 points, then the deals M offers to B are 7%/3 points and
7.625%/0 points. M makes the same amount, regardless of which option B
selects, but the disclosure requirements are quite different. If B
selects 7%/3 points, the Good Faith Estimate of Settlement (GFE) that
must be given B within 3 days of receipt of B's loan application would
show:
Points: 1.5
Mortgage Broker Fee: 1.5
But if B selects 7.625%/0 points, the GFE would show:
Points: 1.5
Mortgage Broker Fee: 0
In the second case, the GFE would have a footnote or parenthetical
statement indicating that M has been paid 1.5 points by L.
It would be difficult to design a disclosure rule more confusing than
this one. It may allow M to bamboozle B into believing that M's services
are free, which they are anything but. B's willingness to pay the 7.625%
rate is what puts the 1.5 points in the broker's pocket. Indeed, if B
agreed to pay 8.5% for which L would pay 3 points, M could make 3 points
on the deal and the GFE would still show a Mortgage Broker Fee of 0. The
fact is that mortgage brokers make their largest markups on loans where
they are compensated by the lender rather than by the borrower.
Attempts to change the disclosure rules so that payments by lenders to
brokers would be more obvious and understandable to consumers are
strongly resisted by brokers who claim, with good reason, that it would
disadvantage them relative to lenders. Suppose M got out of the mortgage
brokerage business and went to work for L as an employee. Instead of
quoting a wholesale price to M to which M added a 1.5 point markup, L
now provides M with retail prices that already include the markup. M now
offers B 7%/3 points and 7.625%/0 points, just as before, but because B
is now dealing with a lender rather than a mortgage broker, the markup
has disappeared from sight. It is now part of L's internal
record-keeping which L is not obliged to show to anyone but its
accountants and the IRS.
Confusion associated with different disclosure rules for mortgage
brokers and lenders is compounded by the fact that consumers often
cannot tell whether they are dealing with a broker or a lender. The core
difference is that brokers do not fund loans while lenders do, but
consumers may not be aware of the difference. Some mortgage brokers that
have grown in size and reputation, acquire the capital and credit lines
needed to fund loans. They thus become lenders, but they seldom change
their name. During their transition from broker to lender, they may act
as a broker on some deals and as a lender on others!
In recent years, many smaller mortgage broker firms have reorganized as
"net branches" of lenders. The brokers become lender employees in the
eyes of the law while operating with much the same independence and
discretion that they had before. Not the least of the benefits of this
arrangement for the ex-brokers is that they avoid disclosing their
compensation to consumers.
If you know you are dealing with a broker and want to know how much the
broker is making from you, you must include any fee paid the broker by
the lender. The better way to protect yourself, however, is just to shop
for the best terms. Then you don't have to worry about the broker's
markup, or whether or not you are dealing with a broker or a lender.