The Consumer Financial Protection Bureau has announced an interpretive rule to assist heirs who, due to the death of a mortgagor, acquire title to a property and take over the mortgage.  Specifically, the interpretative rule clarifies that heirs may be added to a mortgage without prompting the Ability-to-Repay rule, which took effect in January 2014.

Under Regulation Z § 1026.43, the Ability-to-Repay rule applies to any “consumer credit transaction that is secured by a dwelling … including any real property attached to a dwelling,” and requires lenders to perform certain due diligence to ensure, in good faith, a borrower’s creditworthiness and whether they are qualified to make payments towards a sought-after mortgage.  Absent the triggering of the Ability-to-Repay rule, lenders will not be required to perform the same type of due diligence with respect to the heirs.  Instead, heirs may replace the deceased mortgagor without a determination of creditworthiness.

There are many benefits to this rule change, including the heirs’ ability to obtain information related to the mortgage. Going forward it should be easier for heirs to refinance, pay off mortgages, seek loan modifications, and prevent the potential foreclosure of family homes.

CFPB Director Richard Cordray stated, “[l]osing a loved one should not mean also losing your home.  Today’s interpretive rule makes it clear that when family members inherit property, they can take over the mortgage without jumping through unnecessary hoops.  This gives heirs an opportunity to work with the lender to pay off the loan or seek a loan modification.”

Photo of Amanda L. Genovese Amanda L. Genovese

Amanda focuses her practice on matters involving the Employee Retirement Income Security Act (“ERISA”), Health Insurance Portability and Accountability Act (“HIPAA”), Fair Debt Collection Practices Act (“FDCPA”), Telephone Consumer Protection Act (“TCPA”), Real Estate Settlement Procedures Act (“RESPA”), Fair Credit Reporting Act (“FCRA”)…

Amanda focuses her practice on matters involving the Employee Retirement Income Security Act (“ERISA”), Health Insurance Portability and Accountability Act (“HIPAA”), Fair Debt Collection Practices Act (“FDCPA”), Telephone Consumer Protection Act (“TCPA”), Real Estate Settlement Procedures Act (“RESPA”), Fair Credit Reporting Act (“FCRA”), and Truth in Lending Act (“TILA”).

Photo of David N. Anthony David N. Anthony

David Anthony handles litigation against consumer financial services businesses and other highly regulated companies across the United States. He is a strategic thinker who balances his extensive litigation experience with practical business advice to solve companies’ hardest problems.

Photo of Ethan G. Ostroff Ethan G. Ostroff

Ethan’s practice focuses on financial services litigation and compliance counseling, as well as digital assets and blockchain technology. With a long track record of successful litigation results across the U.S., both bank and non-bank clients rely on him for comprehensive advice throughout their

Ethan’s practice focuses on financial services litigation and compliance counseling, as well as digital assets and blockchain technology. With a long track record of successful litigation results across the U.S., both bank and non-bank clients rely on him for comprehensive advice throughout their business cycle.