BILL ANALYSIS SB 1609 Page 1 Date of Hearing: June 13, 1006 ASSEMBLY COMMITTEE ON JUDICIARY Dave Jones, Chair SB 1609 (Simitian) - As Amended: June 8, 2006 SENATE VOTE : 21-15 SUBJECT : REVERSE MORTGAGES KEY ISSUE : SHOULD CONSUMER RIGHTS BE PROTECTED, WHEN APPLYING FOR A REVERSE MORTGAGE LOAN, BY REQUIRING THEM TO RECEIVE INDEPENDENT COUNSELING AND A CONTRACT TRANSLATED IN THEIR PRIMARY LANGUAGE, WHEN APPROPRIATE? SYNOPSIS This bill prohibits a reverse mortgage lender from accepting a reverse mortgage application until the lender has received a certification from the potential borrower that the borrower received independent counseling regarding the reverse mortgage. The bill also prohibits reverse mortgage lenders from requiring an applicant to purchase an annuity, and requires the lender to translate the reverse mortgage contract into the borrower's primary language. The author states that reverse mortgage loans are complex and expensive, and are offered mainly to the elderly. According to the author, these factors make reverse mortgages ripe for financial fraud and abuse against seniors. The author also explains that such factors have also created a breeding ground for lenders and brokers that prey on non-English speaking California residents. Supporters, including the American Association of Retired Persons, Consumer Attorneys of California and Consumers Union, state that it is important to place some reasonable limitations on the sale of annuities in connection with a reverse mortgage, and to ensure that those considering a reverse mortgage are well informed of the options and consequences before making a decision on a reverse mortgage. This bill has no opposition. SUMMARY : Seeks to require a reverse mortgage lender to refer potential borrowers to independent counseling and to provide a translated reverse mortgage contract, when appropriate. Specifically, this bill : 1)Requires a lender to refer a prospective borrower to a housing SB 1609 Page 2 counseling agency approved by the United States Department of Housing and Urban Development before accepting a reverse mortgage application. The counseling referral is for the purpose of discussing the advisability of a particular loan and the appropriateness of that loan for the prospective borrower. The lender cannot accept the reverse mortgage application until it first receives a certification from the borrower stating that the borrower received the described counseling. 2)Prohibits a lender from requiring an applicant for a reverse mortgage to purchase an annuity as a condition of obtaining a reverse mortgage and prohibits any person from selling an annuity to a reverse mortgage borrower 30 days after the closing of the reverse mortgage loan if that person knew or should have known about the existence and closing date of the reverse mortgage loan. 3)Requires a reverse mortgage contract be translated into the appropriate language when negotiations for the reverse mortgage contract were conducted in another language. EXISTING LAW : 1)Defines a reverse mortgage as a non-recourse loan secured by a borrower's owner-occupied principal residence which: (1) provides cash advances based on the value in the residence; (2) requires no payment of principal or interest until the entire loan becomes due; and (3) is made by a lender licensed and chartered pursuant to state or federal law. (Civil Code section 1923.) Stipulates that a reverse mortgage loan is due when: (1) the residence securing the loan is sold or transferred; (2) all borrowers stop occupying the dwelling as a principal residence, as specified; (3) a fixed maturity date occurs; or (4) an event specified in the loan documents occurs, whish jeopardizes the lender's security. (Civil Code section 1923.2(f).) 2)Requires a lender to provide a statement to a prospective borrower before accepting a reverse mortgage loan application, advising the borrower of his or her rights. (Civil Code section 1923.5.) 3)Establishes that an individual annuity contract issued to a senior citizen, 60 years old or older, may be cancelled for a SB 1609 Page 3 full refund within 30 days. (Insurance Code section 10127.10.) 4)Requires certain listed contracts be translated when negotiations for the contract were conducted in another language. (Civil Code section 1632.) 5)Stipulates that a reverse mortgage may only be federally insured if it is provided to mortgagors who: (1) are at least 62 years of age; (2) have received "adequate counseling by a third party;" and (3) have received full disclosure of all costs. For the third-party counseling requirement, a mortgagee must provide a list of contact information for reverse mortgage counselors who are approved by the Secretary of the Department of Housing and Urban Development at the time of the mortgage application. (12 U.S.C.S. sections 1715z-20(d)(2).) FISCAL EFFECT : As currently in print this bill is keyed non-fiscal. COMMENTS : This bill prohibits a reverse mortgage lender from accepting a reverse mortgage application until the lender has received a certification from the potential borrower that the borrower received independent counseling regarding the reverse mortgage. This bill also prohibits reverse mortgage lenders from requiring an applicant to purchase an annuity and requires the lender to translate the reverse mortgage contract into Spanish, Chinese, Tagalog, Vietnamese or Korean if the contract was primarily negotiated in one of those languages. The author states that this bill provides more safeguards that are needed to ensure that borrowers of reverse mortgages are protected and fully informed of the terms of the transaction. The author states that reverse mortgage loans are very complex and expensive loans that are offered mainly to the elderly. According to the Center for Responsible Lending, these reverse mortgage loans, "are targeted at an elderly population that may be less equipped to understand all of the nuance and complexities of the transactions." According to the author, these factors make reverse mortgages ripe for financial fraud and abuse against seniors. The author also explains that such factors have also created a breeding ground for lenders and brokers that prey on non-English speaking California residents. Reverse Mortgages . A reverse mortgage is a type of loan which allows homeowners to borrow against the equity in their home in SB 1609 Page 4 order to access funds. The amount loaned, plus potentially significant interest, becomes due when the person dies and/or the house is sold. These mortgages are primarily marketed to the elderly. These loans are called reverse mortgages because the lender makes monthly payments to the borrower and, when the home is either sold, or the borrower dies, the funds from the sales go to the lender, to pay the debt. Limitations on the Purchase of Annuities . An annuity is insurance financed out of a home's equity that provides monthly payments to the borrower. This bill prohibits reverse mortgage lenders from requiring an applicant to purchase an annuity and prohibits any person from selling an annuity to a reverse mortgage borrower 30 days after the closing of the reverse mortgage loan if that person knew or should have known about the existence and closing date of the reverse mortgage loan. This bill seeks to address the frequency with which annuities are offered, and even required, as a part of reverse mortgage transactions. Consumers Union explains that a senior may already be able to obtain monthly payments through a reverse mortgage transaction, without the additional transaction costs of purchasing an annuity. Consumers Union also argues that the purchase of the annuity may damage seniors and erase the benefits of a reverse mortgage transaction by tying up the money from the reverse mortgage transaction for an extended period of time in an annuity. Such annuities have substantial penalties on any withdrawal prior to the annuity's maturity date. The Insurance Commissioner argues that this separation will provide a buffer from the aggressive marketing of annuities in connection with reverse mortgages and against attempts to sell unnecessary annuities. The Commissioner further argues that this provision is necessary in order to prevent the illusion that the annuity purchase is a necessary or beneficial part of the reverse mortgage transaction. Required Translation of Reverse Mortgage Loan Contracts . This bill adds reverse mortgage contracts to a list of contracts currently subject to Section 1632 of the Civil Code, which requires a written contract to be provided in Spanish, Tagalog, Chinese, Korean, or Vietnamese if the language of the contract was primarily negotiated in one of those languages. The author states that this requirement is necessary to combat the SB 1609 Page 5 potential for fraud when contract negotiations are conducted in one language but the final contract is drafted in English. REGISTERED SUPPORT / OPPOSITION : Support Advisory Council of Area 4 Agency on Aging American Association of Retired Persons, California California Advocates for Nursing Home Reform California Alliance for Retired Americans California Association of Community Organizations for Reform Now California Association of Mortgage Brokers California Reinvestment Coalition California Senior Legislature California Seniors Coalition Center for Responsible Lending City of Oakland Community Housing Development Corporation of North Richmond Community Legal Services in East Palo Alto Congress of California Seniors Consumer Action Consumer Attorneys of California Consumer Federation of California Consumers Union Contra Costa Advisory on Aging Fair Housing Law Project Fair Housing of Marin Fair Housing of Sonoma County Gray Panthers Housing Rights, Inc. Insurance Commissioner John Garamendi Project Sentinel Public Advocates, Inc Public Interest Law Firm San Francisco District Attorney's Office Triple-A Council of California Trusts and Estates Law Section of the State Bar of California Six individuals Opposition None on file. Analysis Prepared by : Manuel Valencia / JUD. / (916) 319-2334 SB 1609 Page 6