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Special Alert: CFPB Issues Guidance On Supervision And Enforcement Of Mini-Correspondent Lenders
This afternoon, the CFPB issued policy guidance on supervision and enforcement considerations relevant to mortgage brokers transitioning to mini-correspondent lenders. The CFPB states that it “has become aware of increased mortgage industry interest in the transition of mortgage brokers from their traditional roles to mini-correspondent lender roles,” and is “concerned that some mortgage brokers may be shifting to the mini-correspondent model in the belief that, by identifying themselves as mini-correspondent lenders, they automatically alter the application of important consumer protections that apply to transactions involving mortgage brokers.”
The guidance describes how the CFPB evaluates mortgage transactions involving mini-correspondent lenders and confirms who must comply with the broker compensation rules, regardless of how they may describe their business structure. In announcing the guidance, CFPB Director Richard Cordray stated that the CFPB is “putting companies on notice that they cannot avoid those rules by calling themselves by a different name.”
The CFPB is not offering an opportunity for the public to comment on the guidance. The CFPB determined that because the guidance is a non-binding policy document articulating considerations relevant to the CFPB’s exercise of existing supervisory and enforcement authority, it is exempt from the notice and comment requirements of the Administrative Procedure Act.
Background
The CFPB explains that generally, a correspondent lender performs the activities necessary to originate a mortgage loan—it takes and processes applications, provides required disclosures, sometimes underwrites loans and makes the final credit approval decision, closes loans in its name, funds them (often through a warehouse line of credit), and sells them to an investor. The CFPB’s focus here is on mortgage brokers who are attempting to move to the role of a correspondent lender by obtaining a warehouse line of credit and establishing relationships with a few investors. The CFPB believes that some of these transitioning brokers may appear to be the lender or creditor in each transaction, but in actuality have not transitioned to the mini-correspondent lender role and are continuing to serve effectively as mortgage brokers, i.e. they continue to facilitate brokered loan transactions between borrowers and wholesale lenders.
RESPA (Regulation X) and TILA (Regulation Z) include certain rules related to broker compensation, including RESPA’s requirement that lender’s compensation to the mortgage broker be disclosed on the Good-Faith Estimate and HUD-1 Settlement Statement, and TILA’s requirements that broker compensation be included in “points and fees” calculations, and its restrictions on broker compensation and prohibition on steering to increase compensation. Those requirements do not apply to exempt bona fide secondary-market transactions, but do apply to table-funded transactions, the difference between which depends on the “real source of funding” and the “real interest of the funding lender.”
The CFPB states that the requirements and restrictions that RESPA and TILA and their implementing regulations impose on compensation paid to mortgage brokers do not depend on the labels that parties use in their transactions. Rather, under Regulation X, whether compensation paid by the “investor” to the “lender” must be disclosed depends on determinations such as whether that compensation is part of a secondary market transaction, as opposed to a “table-funded” transaction. And under Regulation Z, whether compensation paid by the “investor” to the “creditor” must be included in the points-and-fees calculation and whether the “creditor” is subject to the compensation restrictions as a mortgage broker depends on determinations such as whether the “creditor” finances the transaction out of its own resources as opposed to relying on table-funding by the “investor.”
CFPB’s Factors For Assessing Mini-Correspondent Lenders
The guidance advises lenders that in exercising its supervisory and enforcement authority under RESPA and TILA in transactions involving mini-correspondents, the CFPB considers the following questions, among others, to assess the true nature of the mortgage transaction:
- Beyond the mortgage transaction at issue, does the mini-correspondent still act as a mortgage broker in some transactions, and, if so, what distinguishes the mini-correspondent’s “mortgage broker” transactions from its “lender” transactions?
- How many “investors” does the mini-correspondent have available to it to purchase loans?
- Is the mini-correspondent using a bona fide warehouse line of credit as the source to fund the loans that it originates?
- Is the warehouse line of credit provided by a third-party warehouse bank?
- How thorough was the process for the mini-correspondent to get approved for the warehouse line of credit?
- Does the mini-correspondent have more than one warehouse line of credit?
- Is the warehouse bank providing the line of credit one of, or affiliated with any of, the mini-correspondent’s investors that purchase loans from the mini-correspondent?
- If the warehouse line of credit is provided by an investor to whom the mini-correspondent will “sell” loans to, is the warehouse line a “captive” line (i.e., the mini-correspondent is required to sell the loans to the investor providing the warehouse line or to affiliates of the investor)?
- What percentage of the mini-correspondent’s total monthly originated volume is sold by the mini-correspondent to the entity providing the warehouse line of credit to the mini-correspondent, or to an investor related to the entity providing the warehouse line of credit?
- Does the mini-correspondent’s total warehouse line of credit capacity bear a reasonable relationship, consistent with correspondent lenders generally, to its size (i.e., its assets or net worth)?
- What changes has the mini-correspondent made to staff, procedures, and infrastructure to support the transition from mortgage broker to mini-correspondent?
- What training or guidance has the mini-correspondent received to understand the additional compliance risk associated with being the lender or creditor on a residential mortgage transaction?
- Which entity (mini-correspondent, warehouse lender, or investor) is performing the majority of the principal mortgage origination activities?
- Which entity underwrites the mortgage loan before consummation and otherwise makes the final credit decision on the loan?
- What percentage of the principal mortgage origination activities, such as the taking of loan applications, loan processing, and pre-consummation underwriting, is being performed by the mini-correspondent, or an independent agent of the mini-correspondent?
- If the majority of the principal mortgage origination activities are being performed by the investor, is there a plan in place to transition these activities to the mini-correspondent, and, if so, what conditions must be met to make this transition (e.g. number of loans, time)?
The CFPB cautions that (i) the inquiries described in the guidance are not exhaustive, and that the CFPB may consider other factors relevant to the exercise of its supervisory and enforcement authorities; (ii) no single question listed in the guidance is necessarily determinative; and (iii) the facts and circumstances of the particular mortgage transaction being reviewed are relevant.
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Questions regarding the matters discussed in this Alert may be directed to any of our lawyers listed below, or to any other BuckleySandler attorney with whom you have consulted in the past.
- Jeffrey P. Naimon, (202) 349-8030, jnaimon@buckleyfirm.com
- Clinton R. Rockwell, (310) 424-3901, crockwell@buckleyfirm.com
- John P. Kromer, (202) 349-8040, jkromer@buckleyfirm.com
- Joseph M. Kolar, (202) 349-8020, jkolar@buckleyfirm.com
- Jeremiah S. Buckley, (202) 349-8010, jbuckley@buckleyfirm.com
Supreme Court Agrees To Hear Trade Group Challenge To Mortgage Loan Officer Compensation Guidance
On June 16, the U.S. Supreme Court consolidated and agreed to hear two related cases regarding the Department of Labor’s (DOL) 2010 interpretation of its regulations under the Fair Labor Standards Act that mortgage loan officers are not exempt from minimum wage and overtime pay requirements. Perez v. Mortgage Bankers Assoc., No. 13-1041. In July 2013, the D.C. Circuit instructed the district court to vacate the DOL’s 2010 guidance, holding that the guidance significantly revised an earlier contrary agency interpretation of DOL regulations and, as such, required notice and comment rulemaking. The Supreme Court will address the question of “[w]hether a federal agency must engage in notice-and-comment rulemaking before it can significantly alter an interpretive rule that articulates an interpretation of an agency regulation.” The case will be argued and decided during the Court’s next term, which begins in October 2014 and ends June 2015.
Updated CFPB Rulemaking Agenda Adds Auto Finance Larger Participant Rule, Updates Timelines For Other Rules
The CFPB recently released its latest rulemaking agenda, which lists for the first time a larger participant rule that would define the size of nonbank auto finance companies subject to the CFPB's supervisory authority. The CFPB anticipates proposing a rule no sooner than August 2014. Stakeholders will have an opportunity to comment, and a final rule likely would not be issued until sometime in 2015. The CFPB anticipates finalizing its rule for larger participants in the international money transfer market in September 2014. In addition, the agenda pushes back the timeline for the anticipated prepaid card proposed rule from May 2014 to June 2014. The CFPB has been testing potential prepaid card disclosures.
The agenda does not provide timelines for proposed rules related to payday lending, debt collection, or overdraft products, but the CFPB states that additional prerule activities for each of those topics will continue through September 2014, December 2014, and February 2015, respectively. The CFPB substantially extended the timeline for overdraft products; it previously anticipated continuing prerule activities through July 2014. While “prerule activities” is not a defined term, it could include conducting a small business review panel for some or all of those topics. Such panels focus on the impact of anticipated regulations on small entities, but the CFPB typically makes the small business panel materials public, which provides an advance look at the potential direction for a proposed rule.
The agenda does not include a rulemaking implementing the small business fair lending data reporting requirements in the Dodd-Frank Act, though the CFPB previously has indicated it could consider those issues in connection with its HMDA rulemaking. Prerule activities related to the HMDA rule are ongoing.
CFPB Proposes Remittance Rule Amendments
On April 15, the CFPB issued a proposed rule and request for comment to extend a temporary exception to Regulation E’s requirement that remittance transfer providers disclose certain fees and exchange rates to consumers. Pursuant to Regulation E, as amended to implement section 1073 of the Dodd-Frank Act, insured depository institutions are permitted to estimate certain third-party fees and exchange rates in connection with a remittance transfer until July 21, 2015, provided the transfer is sent from the sender’s account with the institution, and the institution is unable to determine the exact amount of the fees and rates due to circumstances outside of the institution’s control. The CFPB is proposing to exercise its statutory authority to extend this exception for an additional five years, until July 21, 2020. The agency explained that, based on its outreach to insured institutions and consumer groups, allowing the initial temporary exception to lapse would negatively affect the ability of insured institutions to send remittance transfers. Comments on the proposed rule are due within 30 days of its publication in the Federal Register.
The proposed rule also includes several clarifications and technical corrections to the CFPB’s final remittance rule and official commentary, which were subsequently amended or delayed—including in August 2012 and January 2013—leading to a May 2013 revised final rule. In this latest round of proposed amendments, the CFPB is seeking to address concerns about the remittance rule’s applicability to U.S. military installations abroad. Because the rule does not expressly address transfers to such installations, the CFPB now seeks (i) comments on whether to treat locations on U.S. military installations abroad as being located within a State or a foreign country for the purposes of the rule, (ii) data on the relative number of transfers sent to and from individuals and/or accounts located on U.S. military installations abroad, and (iii) comments on the appropriateness of extending any clarification regarding U.S. military installations to other U.S. government installations abroad, such as U.S. diplomatic missions.
With respect to transfers from accounts (as defined under Regulation E), the CFPB is also proposing amendments to make clear that whether a transfer is for personal, family, or household purposes—and thus, whether the transfer could be a remittance transfer subject to the rule—is determined by ascertaining the purpose for which the account was established, rather than the purpose of the particular transfer. The proposed amendments would therefore clarify that the rule does not apply to, e.g., transfers from an account that was established as a business or commercial account or an account owned by a business entity. In addition, the proposed rule seeks to clarify that faxes are considered writings for purposes of the remittance rule, and that, in certain circumstances, a remittance transfer provider may give oral disclosures after receiving a written remittance inquiry from a consumer. The CFPB is also proposing to revise the rule’s error resolution requirements, including with regard to errors based on the sender’s provision of incorrect or insufficient information. Specifically, the proposed amendment would clarify that, where such errors occur, the remittance transfer provider may not deduct its own fee from the amount refunded or applied towards a new transfer.
CFPB Report, Field Hearing, Build Record For Changes To Payday Lending Market
On March 25, the CFPB released a report and held a field hearing on payday loans. Through both, the CFPB sought to expand the record on which it will formulate new rules to address its concerns about the payday lending market. Director Cordray indicated in his remarks at the field hearing that the CFPB is on the verge of initiating the public phase of a rulemaking.
The Report
The report—the first such “Data Point” report from the CFPB’s Office of Research—focuses on “loan sequences,” what the CFPB describes as “a series of loans taken out within 14 days of repayment of a prior loan.” The analysis was performed using the same data obtained from storefront payday lenders through the supervisory process and used by the CFPB in its prior analysis and report. Like the prior analysis, this latest analysis did not include online payday lending data. The CFPB acknowledges certain limitations of the data used, including that data collected from different lenders contain different levels of detail and that some lender data did not include default-related information. (Note that the CFSA challenged, under the Information Quality Act, the CFPB’s prior report and the data on which it relied. The CFPB rejected that challenge.)
The CFPB reports that over 80% of payday loans are rolled over or followed by another loan within 14 days. In addition, the CFPB’s report offers the following findings:
- State rollover restrictions: Same-day renewals are less frequent in states with mandated cooling-off periods, but 14-day renewal rates in states with cooling-off periods are nearly identical to states without such limitations.
- Sequence duration and volume: 36% of new loans end with loan being repaid; more than half of loans that are renewed are only renewed one time, but 22% of sequences extend for seven or more loans; 15% of new sequences are extended for 10 or more loans.
- Loan size and amortization: For more than 80% of the loan sequences that last for more than one loan, the last loan is the same size as or larger than the first loan in the sequence. Loan size is more likely to go up in longer loan sequences, and principal increases are associated with higher default rates.
- Loan usage: Monthly borrowers are disproportionately likely to stay in debt for 11 months or longer. Among new borrowers (i.e., those who did not have a payday loan at the beginning the year covered by the data), 22% of borrowers paid monthly averaged at least one loan per pay period. The majority of monthly borrowers are government benefits recipients. Most borrowing involves multiple renewals following an initial loan, rather than multiple distinct borrowing episodes separated by more than 14 days. Roughly half of new borrowers (48%) have one loan sequence during the year. Of borrowers who neither renewed nor defaulted during the year, 60% took out only one loan.
The Field Hearing
In remarks to open the hearing, Director Cordray offered his conclusion that “the business model of the payday industry depends on people becoming stuck in these loans for the long term, since almost half their business comes from people who are basically paying high-cost rent on the amount of their original loan.” He stated that the “fundamental problem is that too many borrowers cannot afford the debt they are taking on or at least cannot afford the size of the payments required by a payday loan.” He identified as a particular concern borrowers who receive monthly payments, including borrowers “who receive Supplemental Security Income and Social Security Disability or retirement benefits, are thus in serious danger of ensnaring themselves in a debt trap when they take out a payday loan.” Director Cordray suggested that state-mandated cooling off periods are insufficient to help consumers avoid these so-called debt traps.
Based on its payday lending supervisory program, the CFPB has concerns about the following payday practices: (i) inhibiting borrowers from using company payment plans that are intended to assist them when they have trouble repaying their outstanding loans; (ii) use of the electronic payment system in ways that pose risks to consumers; and (iii) unfair or deceptive collection activities, including using false threats, disclosing debts to third parties, making repeated phone calls, and continuing to call borrowers after being requested to stop.
Director Cordray stated that the Bureau is in “the late stages of its consideration about how [it] can formulate new rules to bring needed reforms to this market.” His comments and the study findings suggest that these new rules could include, among other things, ability to repay requirements, a two-week or more cooling off period, and limits on the number of rollover or renewal loans. The Director did not provide any additional detail on a rulemaking timeline, but it is likely to take many months . Director Cordray promised that any eventual rule will not limit access to small dollar credit for those who can afford it.
CFPB Begins Testing Model Prepaid Disclosures
On March 18, the CFPB announced that it has begun testing two potential model prepaid card disclosures. After holding field tests last month in Baltimore and this week in Los Angeles, the CFPB plans a final field test next month at a location to be determined. The model forms would provide a standard format for disclosing certain fees, including, among others, monthly, reload, per purchase, ATM withdrawal, and inactivity fees. The two models primarily differ in design—the fees included on the two test models are identical, but for a “decline” fee, which appears only on one of the models.
The field testing follows the CFPB’s May 2012 advance notice of proposed rulemaking soliciting comments to evaluate prepaid cards. The CFPB received hundreds of comments in response to that initial inquiry, and since that time, advocacy groups and members of Congress have continued to pressure the CFPB to take action on prepaid cards. For example, in the last several months, Senate Democrats introduced two prepaid card bills that would establish certain disclosure requirements, and the PEW Charitable Trusts released a paper outlining its latest position and model disclosures.
Finally, in addition to the field testing, the CFPB is seeking comments on the model disclosures through its blog, Twitter, Facebook, or email “from anyone who is interested in making prepaid card disclosures better.” Following completion of the testing, the CFPB expects to propose a rule “later this spring.” That timeline matches one laid out in the CFPB’s most recent rulemaking agenda, in which the Bureau anticipated a proposed rule in May 2014.
SEC Re-opens Comment Period On Asset-Backed Securities Proposals
On February 25, the SEC re-opened the comment period on two asset-backed securities proposals. Prior to passage of the Dodd-Frank Act, the SEC proposed to require that, with some exceptions, prospectuses for public offerings of asset-backed securities and ongoing Exchange Act reports contain specified asset-level information about each of the assets in the pool in a standardized tagged data format. In 2011, the SEC re-opened the comment period on those proposals given additional requirements included in the Dodd-Frank Act. During that comment period, some commenters raised concerns about the reporting of certain sensitive asset-level data. The SEC is now seeking additional comment on a potential method to address privacy concerns related to the dissemination of such information. The proposed method would require issuers to make asset-level information available to investors and potential investors through a Web site that would allow issuers to restrict access to information as necessary to address privacy concerns. Comments on the proposal are due by March 28, 2014.
CFPB Supplements Consumer Reporting Guidance, Holds Consumer Advisory Board Meeting, Issues Consumer Reporting Complaints Report
On February 27, the CFPB issued supplemental guidance related to consumer reporting and held a public meeting focused on consumer reporting issues. The CFPB also released a report on consumer reporting complaints it has received.
Supervisory Guidance
The CFPB issued a supervision bulletin (2014-01) that restates the general obligations under the Fair Credit Reporting Act for furnishers of information to credit reporting agencies and “warn[s] companies that provide information to credit reporting agencies not to avoid investigating consumer disputes.” It follows and supplements guidance issued last year detailing the CFPB’s expectations for furnishers.
The latest guidance is predicated on the CFPB’s concern that when a furnisher responds to a consumer’s dispute, it may, without conducting an investigation, simply direct the consumer reporting agency (CRA) to delete the item it has furnished. The guidance states that a furnisher should not assume that it ceases to be a furnisher with respect to an item that a consumer disputes simply because it directs the CRA to delete that item. In addition, the guidance explains that whether an investigation is reasonable depends on the circumstances, but states that furnishers should not assume that simply deleting an item will generally constitute a reasonable investigation.
The CFPB promises to continue to monitor furnishers’ compliance with FCRA regarding consumer disputes of information they have furnished to CRAs. Furnishers should take immediate steps to ensure they are fulfilling their obligations under the law.
Consumer Advisory Board Meeting
The public session of this week’s two-day Consumer Advisory Board (CAB) Meeting featured remarks from Director Cordray, and a discussion among CAB members, industry representatives, and consumer advocates on several major topics: (i) use of credit history in employment decisions; (ii) consumer access to credit information; and (iii) the credit dispute process.
Mr. Cordray focused on steps the CFPB has taken related to the credit reporting market, including: (i) launching a complaint portal through which consumers have submitted 31,000 consumer reporting complaints, nearly 75% of which have related to the accuracy and completeness of credit reports; (ii) beginning to supervise large credit reporting companies and many large furnishers; (iii) identifying process changes, including upgrades to the e-Oscar consumer dispute system to allow consumers to file disputes online and to provide furnishers direct access to dispute materials; and (iv) issuing guidance to furnishers on resolving consumer disputes.
Mr. Cordray also expressed support for a “major initiative” in the credit card industry to make credit scoring information more easily and regularly available to card holders. Mr. Cordray stated that he sent letters to the CEOs of the major card companies “strongly encouraging them to consider making credit scores and educational content freely available to their customers on a regular basis.” He added that he sees “no reason why this approach should not be replicated with customers across other product lines as well.”
In his CAB remarks, Mr. Cordray also identified some persistent concerns that resulted in the additional furnisher guidance issued today, discussed above. He stated that “[s]ome furnishers are taking short-cuts to avoid undertaking appropriate investigations of consumer disputes. For example, a consumer may find an error on the credit report and file a dispute about an incorrect debt or a credit card that was never opened. In response, the furnisher may simply delete that account from the information it passes along to the credit reporting company.” He stated that such practices deprive consumers of important protections.
During the discussion session, consumer advocates complained that credit reports provided to consumers are not the same as the reports provided to creditors. They claimed that consumers receive “sterilized” versions and do not, for example, get to see if their file is mixed with some else’s file. They also complained that the reports do not provide credit scores.
With regard to the CFPB’s support for creditors disclosing credit scores on a regular basis, several participants, including a representative for CRAs, stated that creditors should be free to provide the credit score of their choice, and not only FICO. Mr. Cordray and the CFPB’s Corey Stone responded that the CFPB is encouraging voluntary participation in score disclosure programs, but stated the Bureau does not believe that any one score needs to be disclosed. Instead, Mr. Stone explained that creditors should provide the score that is most relevant and useful for its customers. Mr. Cordray stressed the importance of providing educational information with the score, regardless of what score is provided.
The consumer advocates also were sharply critical of the CRAs and certain creditors’ dispute resolution processes. One participant raised specific concerns about the lack of human interaction in online dispute processes and the sale of certain add-on products offered during the dispute process.
The industry’s representative defended recent enhancements to the dispute process and highlighted the efficiency benefits of online disputes, including quicker resolution. He added that many furnishers prefer to hear directly from their customers, and that the real issue is how creditors respond.
Report on Consumer Reporting Complaints
The “credit reporting complaint snapshot” states that of the nearly 300,000 complaints the CFPB has received on a range of consumer financial products and services, approximately 31,000 or 11 percent have been about credit reporting. The CFPB accepts consumer credit reporting complaints in five categories: (i) incorrect credit report information; (ii) credit reporting company’s investigation; (iii) improper use of a credit report; (iv) inability to obtain credit report or score; and (v) credit monitoring or identity protection services. The CFPB reports that the most common complaints related to incorrect information on a credit report, while very few complaints related to identity protection or credit monitoring services. The report reviews the complaint handling process, and indicates that companies have resolved approximately 91 percent of the complaints submitted to them.
Federal Reserve Board Finalizes Enhanced Prudential Standards For Large Bank Holding Companies, Foreign Banks
On February 18, the Federal Reserve Board issued a final rule that incorporates elements of two previously proposed rules related to U.S. bank holding companies with assets of $50 billion or more and foreign banking organization with assets of $50 billion or more. For covered domestic bank holding companies, the final rule (i) incorporates as an enhanced prudential standard previously-issued capital planning and stress testing requirements; and (ii) imposes enhanced risk-management, including liquidity risk-management standards. The rule further imposes a 15-1 debt-to-equity limit for companies that pose a grave threat to U.S. financial stability, as determined by the FSOC. For covered foreign banking organizations, the rule (i) implements enhanced risk-based and leverage capital requirements, liquidity requirements, risk-management requirements, stress testing requirements, and the debt-to-equity limit for FSOC-designated companies; and (ii) requires foreign banking organizations with U.S. non-branch assets of $50 billion or more to form a U.S. intermediate holding company (IHC) and imposes the same enhanced requirements on the IHC. The rule also establishes enterprise-wide risk-committee requirements for publicly traded domestic bank holding companies with total consolidated assets of $10 billion or more and for publicly traded foreign banking organizations with total consolidated assets of $10 billion or more, and implements stress-testing requirements for foreign banking organizations and foreign savings and loan holding companies with total consolidated assets of more than $10 billion. The final rule does not apply to non-bank financial firms designated as systemically important by the FSOC. The rule takes effect on June 1, 2014, but covered U.S. bank holding companies have until January 1, 2015 to comply. Foreign banking organizations must submit an implementation plan by January 1, 2015, but have until July 1, 2016 to comply. The final rule generally defers application of the leverage ratio to IHCs until 2018.
OCC Issues Guidance Regarding Secured Consumer Debt Discharged In Bankruptcy
On February 14, the OCC issued Bulletin 2014-02, which clarifies supervisory expectations for national banks and federal savings associations regarding secured consumer debt discharged in Chapter 7 bankruptcy proceedings. The guidance describes (i) the analysis necessary to “clearly demonstrate and document that repayment is likely to occur,” which would preclude any charge-off as required by the Uniform Retail Credit Classification and Account Management Policy; and (ii) when a bank may consider post-discharge payment performance as evidence of collectability and when this performance demonstrates both capacity and willingness to repay the full amounts due. The OCC states that the repayment analysis should document (i) the existence of orderly repayment terms for structured collection of the debt without the existence of undue payment shock or the need to refinance the balloon amount; (ii) a history of payment performance that demonstrates the borrower’s ongoing commitment to satisfy the debt; and (iii) the consideration of post-discharge capacity to make future required payments. The guidance provides standards for post-discharge repayment capacity. Further, the guidance allows a bank to consider post-discharge payment performance as evidence of collectability, and states that the analysis can be conducted at a pool or individual level provided the bank considers whether (i) monthly payment includes both principal and interest that fully amortizes the remaining debt; (ii) sustained performance demonstrates ongoing capacity and willingness to repay post-discharge; and (iii) collateral levels indicate the bank is likely to recover the full amount due even if payments cease.