BILL ANALYSIS SENATE COMMITTEE ON BANKING, FINANCE, AND INSURANCE Senator Ronald Calderon, Chair SB 660 (Wolk) Hearing Date: May 6, 2009 As Amended April 27, 2009 Fiscal: No Urgency: No SUMMARY Would impose a duty of honesty, good faith, and fair dealing on any lender, broker, person, or entity who recommends the purchase of a reverse mortgage to a borrower in anticipation of financial gain, and would require the lender, broker, person, or entity to have reasonable belief that the borrower understands the risks, benefits, and reasonable alternatives involved in the purchase of a reverse mortgage. DIGEST Existing federal law and regulations 1. Define a reverse mortgage as a nonrecourse consumer credit obligation in which a mortgage, deed of trust, or equivalent consensual security interest securing one or more advances is created in the consumer's principal dwelling, and any principal, interest, or shared appreciation or equity is due and payable (other than in the case of default) only after the consumer dies, the dwelling is transferred, or the consumer ceases to occupy the swelling as a principal dwelling (Truth in Lending Act, 12 CFR 226.33); 2. Require a creditor who issues a reverse mortgage to provide specified disclosures to the borrower, informing the borrower that he or she is not obligated to complete the reverse mortgage transaction merely because he or she has received the disclosures required by federal law or has signed an application for a reverse mortgage loan; providing the borrower with a good-faith projection of the total cost of the credit to him or her, as specified; and itemizing pertinent information about the loan, including the loan terms, charges, the age of the youngest borrower, and the appraised property value (12 CFR 226.33); 3. Provides consumers with a three-day right to rescind a SB 660 (Wolk), Page 2 consumer credit transaction, in which a security interest is or will be retained or acquired in a consumer's principal dwelling, as specified (12 CFR 226.23); 4. Establishes, within the United States Department of Housing and Urban Development (HUD), the Home Equity Conversion Mortgage (HECM) program, to provide federal insurance for reverse mortgages that meet HUD requirements. Makes HECM loans available to persons 62 years of age and older and provides that the loans, made against home equity, shall not come due until the borrower(s) dies, moves out of the home permanently, or sells the home. Provides, however, that loan may become due earlier if the borrower(s) fails to pay property taxes or maintain the home, as specified in the loan agreement. Provides that at the time the loan comes due, the property shall be sold to retire the loan amount, with any residue returning to the estate or heirs of the borrower. Requires any prospective heir to satisfy the lender's lien before taking title to the property (12 USC Section 1715z-20 et seq.; 12 CFR Section 226.33); 5. Requires that all applicants for an insured HECM loan receive adequate counseling from an independent third party that is not, either directly or indirectly, associated with or compensated by the lender, loan originator, or loan servicer, or by any party associated with the sale of annuities, investments, long-term care insurance, or any other type of financial or insurance product. Requires the lender, at the time of initial contact, to provide the borrower with a list of HUD-approved counseling agencies (12 USC Section 1715z-20; 24 CFR 206.41); 6. Requires all HECM loan counselors to be approved by HUD and meet HUD standards, as specified. Further requires the Secretary of HUD to develop uniform counseling protocols by July 30, 2009. The protocols must require a qualified counselor to discuss, generally, financial options other than a reverse mortgage, the financial implications of reverse mortgages, including any tax consequences, and the affect of the loan on eligibility for government assistance programs (12 USC 1715z-20; 24 CFR Section 214.103); 7. Prohibits the lender or any person involved in the origination of the HECM from participating in, being associated with, or employing any party that participates in the sale of other financial or insurance products, unless the lender or originator maintains firewalls and other safeguards designed to ensure that individuals participating in the origination of the SB 660 (Wolk), Page 3 HECM loan have no involvement with, or incentive to provide the borrower with, any other financial or insurance product. Specifies that a prospective borrower shall never be required to purchase any other financial or insurance product as a condition of obtaining a reverse mortgage. (12 USC 1715z-20). Existing law 1. Defines a reverse mortgage as a nonrecourse loan secured by real property, which meets all of the following criteria (Civil Code Section 1923): a. The loan provides cash advances to a borrower based on the equity or value in a borrower's owner-occupied principal residence; b. The loan requires no payment of principal or interest until the entire loan becomes due and payable; c. The loan is made by a lender licensed or chartered pursuant to California or federal law; 2. Specifies several conditions that must be satisfied by lenders who make reverse mortgage loans, and several prohibitions that apply to those lenders, and includes among those rules, the following (Civil Code Section 1923.2): a. Before a lender may accept a final and complete application for a reverse mortgage loan or assess any fees, that lender must: i. Refer the prospective borrower to a HUD-approved housing counseling agency; ii. Provide the borrower with a list of at least five HUD-approved housing counseling agencies, including at least two agencies that can provide counseling by telephone; and iii. Receive a certification from the applicant or the applicant's authorized representative that the applicant has received counseling from a HUD-approved counseling agency. The counseling is required to meet the standards and requirements established by HUD for reverse mortgage counseling. The certification must be signed by the borrower and the agency counselor, and SB 660 (Wolk), Page 4 must include the date of counseling, and the name, address, and telephone numbers of both the counselor and the borrower; b. No lender may make a reverse mortgage loan without first complying with, or in the case of brokered loans, ensuring compliance with, the requirements of Civil Code Section 1632, relating to the translation of loan documents; 3. Prohibits a reverse mortgage lender from requiring an applicant for a reverse mortgage to purchase an annuity as a condition of obtaining a reverse mortgage loan, and provides that a reverse mortgage lender or broker arranging a reverse mortgage loan may not offer an annuity to the borrower or refer the borrower to anyone for the purchase of an annuity, before closing the reverse mortgage, or before the borrower's right to rescind the mortgage contract has expired (Civil Code Section 1923.2); 4. Provides that reverse mortgage loan payments made to a borrower must be treated as proceeds from a loan, and not as income, for the purpose of determining eligibility and benefits under means-tested programs of aid to individuals, as specified (Civil Code Section 1923.9); 5. Imposes a special duty of honesty, good faith, and fair dealing on an insurer, broker, agent, and all others engaged in the transaction of insurance with a prospective insured who is 65 years of age or older, as specified (Insurance Code Section 785), and establishes several requirements that must be followed and prohibitions that must be observed when seniors age 65 or older are marketed or sold insurance policies (Insurance Code Sections 785 et seq.); 6. Authorizes the Insurance Commissioner to assess an administrative penalty for the violation of the duty immediately above and other provisions relating to the sale of insurance to seniors; authorizes actions for injunctive relief, penalties, damages, and restitution for violating the sections of law relating to the sale of insurance products to seniors to be brought in superior court by the Attorney General, a district attorney, or city attorney; and authorizes the court to award reasonable attorney's fees and court costs to the prevailing plaintiff (Insurance Code Sections 789 and 789.3); 7. Allows seniors to rescind an individual life insurance policy or individual annuity contract, and receive a refund of all SB 660 (Wolk), Page 5 premiums and fees paid, for 30 days following the purchase of such policy or contract, and requires certain disclosures in that regard (Insurance Code Section 10127.10); 8. Imposes a duty of honesty, good faith, and fair dealing on all insurers, brokers, agents, and others engaged in the business of insurance, with respect to policyholders or prospective policyholders of long-term care insurance (Insurance Code Section 10234.8), requires every insurer or other entity marketing long-term care insurance to develop and use suitability standards to determine whether the purchase or replacement of long-term care insurance is appropriate for the needs of the applicant, train its agents in the use of those suitability standards, and develop procedures that take the following into account (Insurance Code Section 10234.95): a. The ability to pay for the proposed coverage and other pertinent financial information related to the purchase of the coverage; b. The applicants goals or needs with respect to long-term care, and the advantages and disadvantages of insurance to meet those goals or needs; c. The value, benefits, and costs of the applicant's existing insurance, if any, when compared to the values, benefits, and costs of the recommended purchase or replacement; 9. Requires financial institutions, as defined, and their officers and employees, from January 1, 2007 until January 1, 2013, to report suspected financial abuse of an elder or dependent adult, as defined, and makes failure to report suspected financial abuse a violation of the law, subject to a civil penalty up to $1,000 ($5,000 if failure to report is willful), paid by the financial institution to the party bringing the action (Welfare and Institutions Code Section 15630.1). Existing common law 1. Imposes a fiduciary duty on investment advisors with respect to the advice they provide to their clients, pursuant to a 1963 case decided by the United States Supreme Court (SEC v. Capital Gains Research Bureau, Inc, 375 U.S. 180, 84 S. Ct. 275). The Supreme Court held that Section 206 of the Advisers Act, which generally makes it unlawful for an investment adviser to engage SB 660 (Wolk), Page 6 in fraudulent, deceptive, or manipulative conduct, imposes a fiduciary duty on investment advisers, by operation of law; 2. Imposes a fiduciary duty on mortgage brokers, pursuant to a 1979 case decided by the California Supreme Court (Wyatt v. Union Mortgage Company, 24 Cal. 3d 773, 23748). In that case, the court concluded that specified provisions of the Business and Professions Code and the Civil Code, working together, "impose upon mortgage loan brokers an obligation to make a full and accurate disclosure of the terms of a loan to borrowers and to act always in the utmost good faith toward their principals." SB 660 (Wolk), Page 7 This bill 1. Would provide that any lender, broker, person, or entity who recommends the purchase of a reverse mortgage, in anticipation of financial gain, owes the prospective borrower a duty of honesty, good faith, and fair dealing, and would provide that these duties are in addition to any other duties, express or implied, that may exist; 2. Would further require the lender, broker, person, or entity referenced above to have reasonable belief that the borrower understands the risks, benefits, and reasonable alternatives involved in the purchase of a reverse mortgage. COMMENTS 1. Purpose of the bill To protect seniors from obtaining reverse mortgages that are unsuitable for them, and, in doing so, help seniors avoid the devastating effects of an unsuitable reverse mortgage loan. 2. Background A reverse mortgage is a home loan that allows a senior homeowner, 62 years of age or older, to convert a portion of the equity in his or her home into cash payments. The senior is not required to pay back the loan during their lifetime, unless they no longer use the home as their principal residence. The loan is due when the senior sells his or her home, no longer uses it as his or her primary residence, or dies. Because the vast majority of reverse mortgages sold to seniors at the present time are Home Equity Conversion Mortgages (HECMs), insured by the Federal Housing Administration (FHA), the discussion below will focus on the rules that apply to HECMs. There are, however, rules which apply to all reverse mortgages, not just HECMs, something which adds a level of complexity to the discussion about this bill. As noted above under the "existing law" discussion, Truth in Lending Act rules, which generally require consumer disclosures, apply to all reverse mortgages, regardless of whether they are made by federally-regulated or state-regulated lenders, and regardless of whether the mortgage is FHA-insured. California's law applies to all reverse mortgages, whether or not the mortgage is FHA-insured; however, federal pre-emption issues cloud the question of whether California's reverse mortgage law applies to reverse SB 660 (Wolk), Page 8 mortgages made by federally-regulated lenders. Representatives of federally-regulated lenders have informed Committee staff that their clients are following California's reverse mortgage laws at the present time. They are not willing to speculate about whether federally-regulated lenders would continue to follow California's reverse mortgage laws, if they were changed in a way that imposed significant legal liability on the lenders. Thus, this bill would clearly apply to reverse mortgages originated by state-regulated lenders, regardless of whether those mortgages were FHA-insured. It is unclear whether federally-regulated reverse mortgage lenders would comply with the provisions of this bill. As noted immediately above, the vast majority of reverse mortgages originated at the present time are so-called HECM mortgages. Under HECM rules, the amount a borrower may borrower depends on his or her age, the interest rate of the loan, the appraised value of the borrower's home, and the FHA mortgage limits in the borrower's area (which recently increased, pursuant to enactment of the American Recovery and Reinvestment Act of 2009 [Public Law 111-5]). Generally speaking, the more valuable one's home is, the more the equity the borrower holds in that home, the older one is, and the lower the interest rate on the loan, the more a senior can borrow through a reverse mortgage. According to FHA, "based on a loan with interest rates of approximately 9%, and a home qualifying for $100,000, a 65-year-old could borrower up to 34% of the home's value; a 75-year-old could borrow up to 47% of the home's value; and, an 85-year-old could borrow up to 64% of the home's value. These percentages do not include closing costs because these charges vary." To be eligible for a HECM, FHA requires that the borrower be a homeowner, 62 years of age or older, own the home or have a mortgage balance low enough that it can be paid off at closing with proceeds from the reverse mortgage loan, live in the home, and receive consumer information from a HUD-approved counseling agency before obtaining the loan. There are no asset or income limitations on eligibility. FHA refers interested borrowers to the Housing Counseling Clearinghouse, at 1-800-569-4287, to obtain the name and telephone number of an approved counseling agency and a list of FHA-approved lenders in the borrower's area. SB 660 (Wolk), Page 9 A variety of homes are eligible for HECMs, including single-family dwellings, 2- to 4-unit dwellings in which the borrower owns and occupies one of the units, townhouses, detached homes, units in FHA-approved condominiums, and manufactured homes built on or after June 1976, which have permanent foundations. FHA has another program, called the Spot Loan program, which can help a senior whose condominium does not qualify for a HECM. With HECMs, borrowers have five options regarding the way(s) in which they may receive their reverse mortgage payments, including: 1) tenure - equal monthly payments, paid for as long as one borrower lives and continues to occupy the property as his or her principal residence; 2) term - equal monthly payments for a fixed number of months selected; 3) line of credit -- unscheduled payments, made in installments or at times and amounts of the borrower's choosing, until the line of credit is exhausted; 4) modified tenure - a combination of line of credit and monthly payments for as long as the borrower remains in the home; and 5) modified term - a combination of line of credit and monthly payments for a fixed period of months of the senior's choosing. HECM borrowers may choose either a fixed interest rate or an adjustable interest rate at origination. If they choose an adjustable interest rate, they may choose to have that interest rate adjust monthly or annually. There is no interest rate cap on a monthly adjustable rate. Annually adjustable rates are capped at increasing by no more than 2 percentage points per year, and by no more than 5 percentage points over the life of the loan. Because reverse mortgage borrowers receive money, rather than paying it, the interest rate on these types of loans works in reverse, compared to the way in which it works on "regular" types of mortgage loans. In the case of a reverse mortgage, the higher the interest rate, the less money the borrower receives. HECM loans also include several fees, including an origination fee, closing costs, mortgage insurance premiums, interest, and servicing fees. When a senior borrower sells his home or no longer uses it as his or her primary residence, the senior or his or her estate must repay the cash received from the reverse mortgage, plus interest and other fees, to the lender. The SB 660 (Wolk), Page 10 remaining equity in the home, if any, belongs to the borrower or his or her heirs. The loan also becomes due and payable in any of the following additional circumstances: 1) the borrower does not pay property taxes or hazard insurance; 2) the borrower fails to live in the home for 12 consecutive months (as could occur if the borrower had a nursing home stay of 12 months or longer); or 3) the borrower allows the property to deteriorate, and does not make necessary repairs. 3. Discussion Reverse mortgages are becoming increasingly popular in the United States. According to a recent article in the Wall Street Journal ("Reverse Mortgage: Get Cash, But Use Caution," by Anne Tergesen), the number of federally-insured reverse mortgages grew from 43,082 in 2005 to 112,015 in 2008. One of the reasons for their popularity is tied to the declining stock market. Some seniors are looking for cash and do not wish to draw down already depleted investment accounts. According to a reverse mortgage broker quoted in that WSJ article, "We're seeing more people use reverse mortgages to give their portfolios time to more fully recover." While reverse mortgages can provide seniors with cash they might not otherwise have, have access to, or wish to access, they, like all investments, carry risks. Borrowers who draw down their home equity and lack other sources of income can find themselves without the resources they need in their later years, especially if they can no longer live on their own, and require in-home or facility-based care. Those who support this bill want to ensure that no senior is sold a reverse mortgage that is unsuitable for them. They point to inappropriate use by seniors of reverse mortgage proceeds, which leave the seniors destitute when they are in greatest need of financial resources to support their increased care needs. Those in opposition are concerned about the duties this bill would place on lenders, and the liability those duties would carry. They claim that the bill could have a chilling effect on the reverse mortgage industry. As noted above in the lengthy description of existing law, California law, federal law, and case law recognize a heightened duty on those who sell several types of financial and insurance products to seniors, on those who act as SB 660 (Wolk), Page 11 investment advisers, and on those who broker mortgages. Existing law also contains provisions intended to protect seniors who are considering the purchase of reverse mortgages, and provisions intended to identify and stop elder and dependent financial abuse. Despite the existence of these multiple laws, all of which carry important protections for seniors, this bill's sponsor and its supporters assert that a significant number of seniors are taking out reverse mortgages, and using the proceeds of those mortgages inappropriately. The co-existence of multiple protections in existing law to protect seniors, and evidence that seniors are inappropriately using reverse mortgage proceeds, prompt two of the key questions for this Committee, when it considers SB 660. Specifically: a. If all of the state and federal laws and case law on the books are insufficient to protect seniors from misusing the proceeds of reverse mortgages, will adding another law, as this bill proposes to do, make a positive difference? b. What aspects of existing law are insufficient to protect seniors considering the purchase of a reverse mortgage, and how, if at all, should existing law be modified to improve its effectiveness? Other key questions include the following: c. Those who broker reverse mortgages already have a fiduciary duty toward borrowers. Is that fiduciary duty being observed? If not, should it be more clearly stated in existing law? d. Alternately, is the problem one of enforcement? Are enforcement resources adequate to ensure that those who owe fiduciary and other duties to seniors are following the law? e. Seniors are required to receive counseling before they are sold a reverse mortgage. Is that counseling adequate? HUD, the department responsible for certifying those who perform the counseling, appears to think it is not. A SB 660 (Wolk), Page 12 recent article in American Banker magazine ("Mortgage Pipeline," dated April 2, 2009) stated, "HUD is also concerned that the mandatory counseling for senior citizens who are considering reverse mortgages is not as impartial as it could be. A ? letter to lenders posted on HUD's web site Friday reiterated that a lender cannot contact a counselor or counseling agency to refer prospective borrowers, discuss the timing or scheduling of the counseling or request information regarding the topics covered in counseling. 'HUD is aware of instances in which a lender, or lenders, have dialed a counseling agency's phone number and then handed the phone to the borrower to schedule counseling?The borrower must take the initiative.'" In conversations with the sponsor prior to this bill hearing, the sponsor indicated that SB 660 is not about the quality of the counseling provided to seniors. Should it be? 4. Concerns As drafted, the bill's requirement that a lender have a reasonable relief that a senior understands the risks, benefits, and reasonable alternatives of the reverse mortgage is problematic, because the bill offers no direction about how the author intends this language to be interpreted. The bill is unclear, for example, on whether a lender, broker, person, or entity who recommends the purchase of a reverse mortgage may rely upon the requirement that seniors receive counseling before they are able to obtain a reverse mortgage as the basis for their reasonable belief that the senior understands the reverse mortgage. If, as is likely, the bill's language is premised on a belief that the existing counseling requirement is insufficient basis for a lender, broker, person, or entity to have a reasonable belief that the senior understands the risks, benefits, and reasonable alternatives involved in his or her purchase of a reverse mortgage, the author's language is likely to result in significant litigation over what can form the basis for a reasonable belief. Lenders, brokers, and others may be considerably less likely to recommend the purchase of a reverse mortgage, if they fear being sued over the basis for their recommendations. SB 660 (Wolk), Page 13 Amendments are suggested below (see Suggested Amendments section) to address these concerns. 5. Support The sponsor of this bill, California Advocates for Nursing Home Reform (CAHNR) believes that SB 660 will help many seniors avoid the devastating effects of an unsuitable reverse mortgage loan. CAHNR states that reverse mortgages are aggressively marketed to seniors and being touted, irresponsibly in CAHNR's view, as a smart way to improve a senior's quality of life. Those who market reverse mortgages do not stress that these are very expensive loans that will, in a relatively short period of time, strip the home of its net worth. "Seniors are told that they never have to worry about leaving their home or owing more than the value of their home?This is not altogether true. Borrowers with reverse mortgages can and do get foreclosed on. If they can't keep up with the continual financial payments for insurance, property taxes, and maintenance of the home the loan goes into default. Seniors without the means to fix their leaky roofs will end up in default." CAHNR also believes that the state of California has an interest in ensuring that only suitable reverse mortgages are sold to seniors. Low-wealth seniors who obtain reverse mortgages and subsequently need to move into assisted living facilities may be left with little or no money with which to afford private pay facilities. These seniors may ultimately have no option but to move into a nursing home that accepts Medi-Cal. The state will have no option but to pay for that care. CAHNR offers three worst-case scenarios that can befall seniors who obtain reverse mortgages that are unsuitable for them: 1) Seniors who have exhausted their equity through reverse mortgage loans will be deprived of the opportunity to move into assisted living facilities; 2) Seniors who imprudently waste their home equity through frivolous or nonessential undertakings will, in the future, find themselves stranded in their homes and unable to maintain necessary expenditures after exhausting their equity; and 3) Seniors will face a life of destitution if they fall prey to financial scammers who connive to get them to pull out home equity in order to fund financial adventures. SB 660 (Wolk), Page 14 Aging Services of California (Aging Services) sees SB 660 as providing needed protection for seniors. The organization states that, without the protections in SB 660, thousands of seniors will be sold reverse mortgages that radically affect established estate plans, retirement destinations, and care for dependent children. Aging Services members have witnessed seniors working their way to the top of a waiting list for assisted living, only to find their resources so depleted by reverse mortgages that they can no longer fund their retirement plans. The California Alliance for Retired Americans (CARA) writes that, while reverse mortgages may not be fraudulent per se, they are extremely complex and expensive to use, and are being marketed to seniors as the answer to all of their financial problems, without any downside. CARA sees SB 660 as a bill that brings needed regulation to the reverse mortgage market, and will protect seniors from possible abuses. The California Association of Mortgage Brokers believes the bill is a reasonable effort to help further transparency, and help ensure that counselors involved in the reverse mortgage process discus all known issues that may impact a senior's decision to take out a reverse mortgage. 6. Opposition The California Bankers Association, California Chamber of Commerce, California Financial Services Association, California Independent Bankers Association, and California Mortgage Bankers Association (the coalition) oppose SB 660, on grounds that the bill will expose lenders to significant legal liability, and have a chilling effect on the reverse mortgage industry. To the coalition, the requirements of SB 660 appear to imply that the protections in existing state and federal law are insufficient. The coalition would prefer to address those deficiencies in a targeted manner that will not adversely impact the sale of reverse mortgage products. Furthermore, the coalition states that, as drafted, "SB 660 would effectively create a fiduciary duty for lenders who offer reverse mortgages, as it would require lenders to somehow make a subjective determination about the borrower's understanding of reverse mortgages, as well as the 'reasonable alternatives' available to them. How is a lender supposed to quantify the 'reasonable beliefs' of a SB 660 (Wolk), Page 15 borrower? How would a lender verify that a borrower understands what 'reasonable alternatives' are available to them or that they fully understand all of the 'risks' and 'benefits' of a reverse mortgage? Who could bring suit for a purported violation of this measure? Could a 'prospective' borrower file suit even if they don't ultimately purchase a reverse mortgage? How long would a party have to file suit? Finally, what are the damages for a purported violation of this measure?" The California Credit Union League (CCUL) sees SB 660 as a well-intentioned measure, which, in seeking to impose standards on the bad actors in the marketplace, will instead negatively affect responsible lenders. CCUL cites concerns with a number of terms in the bill. First, it is unclear whether the bill applies to situations in which a credit union member visits a credit union to request a reverse mortgage. If a lender responds to a request from its customer to provide that customer with a reverse mortgage, is the lender recommending the purchase of a reverse mortgage to the senior? CCUL also echoes the concerns expressed above about the "reasonable belief" terminology in the bill. Once a senior receives counseling from a HUD-certified counselor (as required by existing law), can the credit union use a certificate that counseling is complete as the basis for a reasonable belief that the borrower understands the risks, benefits, and reasonable alternatives involved in the purchase of the reverse mortgage? CCUL is concerned that, as drafted, the bill will result in the courts answering that question. CCUL is also concerned about the new duty of honesty, good faith, and fair dealing that SB 660 would impose. Credit unions fearing liability from the new duty might refuse to offer a reverse mortgage to a credit union member who wished to obtain one. "Simply put, the liabilities that would be imposed by SB 660 and the potential for legal action against a credit union are severe enough that many of the credit unions in California would eliminate this product for their members." 7. Suggested Amendments If this Committee wishes to address some of the concerns, expressed above, about the "reasonable belief" language in the bill, and support an alternate SB 660 (Wolk), Page 16 approach to protecting seniors who engage in reverse mortgage transactions, the following amendments are suggested: Amend the existing language of the bill, as follows: 1923.1 is added to the Civil Code, to read: Any lender, broker, person, or entity who recommends the purchase of a reverse mortgage in anticipation of financial gain, owes the prospective borrower a duty of honesty, good faith, and fair dealingand shall have reasonable belief that the borrower understands the risks, benefits, and reasonable alternatives involved in the purchase of a reverse mortgage.These duties are in addition to any other duties, express or implied, that may exist. In addition, add amendments to Section 1923.5 of the Civil Code to the bill, as follows: 1923.5. (a) No reverse mortgage loan application shall be taken by a lender unless the loan applicant has received from the lender, prior to receiving counseling, the following plain language statement in conspicuous 16-point type or larger, advising the prospective borrower about counseling prior to obtaining the reverse mortgage loan: IMPORTANT NOTICE TO REVERSE MORTGAGE LOAN APPLICANT A REVERSE MORTGAGE IS A COMPLEX FINANCIAL TRANSACTION THAT PROVIDES A MEANS OF USING THE EQUITY YOU HAVE BUILT UP IN YOUR HOME, OR THE VALUE OF YOUR HOME, AS A SOURCE OF ADDITIONAL INCOME. IF YOU DECIDE TO OBTAIN A REVERSE MORTGAGE LOAN, YOU WILL SIGN BINDING LEGAL DOCUMENTS THAT WILL HAVE IMPORTANT LEGAL AND FINANCIAL IMPLICATIONS FOR YOU AND YOUR ESTATE. IT IS THEREFORE IMPORTANT TO UNDERSTAND THE TERMS OF THE REVERSE MORTGAGE AND ITS EFFECT. BEFORE ENTERING INTO THIS TRANSACTION, YOU ARE REQUIRED TO CONSULT WITH AN INDEPENDENT LOAN COUNSELOR. A LIST OF APPROVED COUNSELORS WILL BE PROVIDED TO YOU BY THE LENDER. YOU MAY ALSO WANT TO DISCUSS YOUR DECISION WITH FAMILY MEMBERS OR OTHERS ON WHOM YOU RELY FOR FINANCIAL ADVICE. (b) (1) In addition to the plain statement notice described SB 660 (Wolk), Page 17 in subdivision (a), no reverse mortgage loan application shall be taken by a lender unless the lender provides the prospective borrower, prior to his or her meeting with a counseling agency on reverse mortgages, with a written checklist which conspicuously alerts the prospective borrower, in 12-point type or larger, that he or she should discuss with the agency counselor the following issues: (A) How unexpected medical or other events that cause the prospective borrower to move out of the home earlier than anticipated will impact the total annual loan cost of the mortgage. (B) The extent to which the prospective borrower's financial needs would be better met by options other than a reverse mortgage, including, but not limited to, less costly home equity lines of credit, property tax deferral programs, or governmental aid programs. (C) Whether the prospective borrower intends to use the proceeds of the reverse mortgage to purchase an annuity or other insurance products and the consequences of doing so. (D) The effect of repayment of the loan on nonborrowing residents after all borrowers have died or permanently left the home. (E) The prospective borrower's ability to finance routine or catastrophic home repairs, especially if maintenance is a factor that may determine when the mortgage becomes payable. (F) The impact that the reverse mortgage may have on the prospective borrower's tax obligations, eligibility for government assistance programs, and the effect that losing equity in the home will have on the borrower's estate and heirs. (2) The checklist required in paragraph (1) shall be signed by the SB 660 (Wolk), Page 18 agency counselor and by the prospective borrower and returned to the lender along with the certification of counseling required under subdivision (l) of Section 1923.2, and the loan application shall not be approved until the signed checklist is provided to the lender. A copy of the checklist shall be made provided to the borrower. 8. Comparing This Bill to New HUD Counseling Protocols As noted in the Existing federal law section of this bill, HUD is required to develop uniform counseling protocols for HECM loans by July 30, 2009. Once those protocols are available, Committee staff recommends that the author review them, and ensure that the checklist in her bill is consistent with, and not in conflict with, the new HUD protocols. 9. Prior and Related Legislation a. AB 329 (Feuer), as amended April 16, 2009: Requires lenders to provide the written checklist described immediately above in the Suggested Amendments section to prospective borrowers, before the borrowers seek reverse mortgage counseling; prohibits a lender or any other person who originates a reverse mortgage from participating in, being associated with, or employing any party that participates in or is associated with any other financial or insurance activity; prohibits these entities from referring a prospective borrower to anyone for the purchase of other financial or insurance products; requires the lender to provide the prospective borrower with a list of at least 10 HUD-certified housing counseling agencies; and provides borrowers with a 30-day right to rescind a reverse mortgage contract into which they enter. Pending in the Assembly Banking & Finance Committee. b. SB 1609 (Simitian), Chapter 202, Statutes of 2006: Added the language prohibiting lenders from making a reverse mortgage until it receives a signed certification that the borrower received independent counseling about the transaction, prohibited lenders from requiring a borrower to purchase an annuity as SB 660 (Wolk), Page 19 part of the reverse mortgage transaction, and added the reverse mortgage translation requirement summarized above. c. SB 192 (Scott), 2005-06 Legislative Session: Would have required a life agent, or an insurer, where no agent was involved, to have reasonable grounds for believing that the sale of an annuity to a senior was suitable, on the basis of facts disclosed by the senior, as specified. Passed the Senate, never taken up by the author in the Assembly Insurance Committee. d. AB 2316 (Chan), Chapter 835, Statutes of 2004: Created a Life and Annuity Consumer Protection Program, dedicated to protecting consumers of life insurance and annuity products in California. e. SB 620 (Scott), Chapter 547, Statutes of 2003: Prohibited the sale of annuities to seniors in certain circumstances; required training for life agents as a condition of selling annuities, as specified; enacted additional restrictions on advertising practices that target senior citizens; imposed restrictions on the sale of life insurance policies and annuities in a senior citizen's home; and enacted other changes intended to protect senior consumers who are being marketed life insurance policies or annuities. POSITIONS Support California Advocates for Nursing Home Reform (sponsor) Aging Services of California California Alliance for Retired Americans California Association of Mortgage Brokers Oppose California Bankers Association California Chamber of Commerce California Financial Services Association California Independent Bankers Association California Mortgage Bankers Association California Credit Union League SB 660 (Wolk), Page 20 Consultant: Eileen Newhall (916) 651-4102