ONAP logo Consultation on Section 184 Regulations

Overview

The U.S. Department of Housing and Urban Development (HUD) has prioritized updating the regulations for the Section 184 Indian Housing Loan Guarantee program (Section 184). Since the Section 184 program impacts tribes and Native American families, HUD is conducting tribal consultation on the regulations in accordance with the Department's Government-to-Government Tribal Consultation Policy.

The Section 184 program is a home mortgage product specifically designed for American Indian and Alaska Native families, Alaska villages, tribes, or tribally designated housing entities. Section 184 loans can be used, both on and off native lands, for new construction, rehabilitation, purchase of an existing home, or refinance.

Congress established the Section 184 program in 1992 to facilitate homeownership and increase access to capital in Native American Communities.  The program has grown from under 100 loans in 1994 to over 4,000 loans worth over $700 million in fiscal year 2017.  However, the regulatory framework that governs program has remained largely unchanged. 

HUD welcomes all tribal comments on the Section 184 program, and feedback on how tribes can play a more meaningful role in the program. Please email comments and questions to: 184consultation@hud.gov.


Tribal Consultation

HUD’s Office of Native American Programs (ONAP) is conducting consultation sessions February through April 2018. ONAP will consider tribal comments from these tribal consultations, as well as comments sent to 184consultation@hud.gov, when drafting the new regulations.

Consultation Sessions

  • February 12-15, 2018 National Congress of American Indians (NCAI) 2018 Executive Council Winter Session in Washington, DC
  • March 5-7, 2018 National American Indian Housing Council (NAIHC) 2018 Legislative Conference in Washington, DC
  • March 15, 2018 Section 184 Tribal Consultation Informational webinar.  Recording and Transcript
  • March 22, 2018 Nevada/California Indian Housing Association in Lincoln, CA
  • March 26, 2018 Midwestern Alliance of Sovereign Tribes (MAST) Impact Week in Washington, DC
  • April 9, 2018 The United Native American Housing Association (UNAHA) Annual Meeting in Lakewood, CO
  • April 9, 2018 Association of Alaska Housing Authorities' (AAHA) webinar in Anchotage, AK.
  • April 17, 2018 Northwest Indian Housing Association (NWIHA) in Worley, ID
  • April 19, 2018 Southern Plains Indian Housing Association (SPIHA) Spring Meeting in Catoosa, OK
  • April 24-25, 2018 Tribal Self-Governance Annual Consultation Conference Albuquerque Convention Center in Albuquerque, NM
  • May 3, 2018 HUD Offices and webinar  PM in Chicago, IL
  • October 24, 2018 National Congress of American Indian (NCAI) annual meeting in Denver, CO
  • December 10-12, 2018 National American Indian Housing Council (NAIHC) legal symposium in Las Vegas, NV

Once HUD has prepared draft regulations, HUD will send a copy out to tribal leaders and tribally designated housing entities for comment via a “Dear Tribal Leader letter.” Once this tribal comment period is over and any comments received are considered, HUD will publish the proposed rule in the Federal Register for public comment. 


Comments Received Through Tribal Consultation

In accordance with HUD’s Tribal Consultation Policy, the Office of Native Programs (ONAP) conducted a series of consultation sessions over the past year on draft regulations for the mortgage loan guarantee program it manages (commonly referred to as Section 184).  During these sessions, attendees were encouraged to comment on the program and make suggestions on what the draft regulation should address. An email mailbox was also created for interested parties to submit their comments outside of the consultation sessions. Once received, the comments are reviewed and taken into consideration by the drafting committee for the draft regulations and future guidances. 

What follows below is a summary of the comments received through the sessions and mailbox, sorted by subject category.  It is simply a recitation of the comments received, and ONAP has not made determinations or endorsements on the applicability or accuracy of the comments.  If there are additional comments that are not already addressed, please feel free to submit them to the email mailbox at 184consultation@hud.gov.

Lenders – These comments pertain to the entities that originate and service mortgage loans.

  • Need more lenders.
  • Need more lenders who understand trust land and are willing to lend on trust land.         
  • Lenders sometimes do not know that they are on the eligible lender list.
  • Lenders have different departments in different areas which do not talk to each other.
  • Provide incentives to increase the number of lenders.
  • Make Native CDFIs eligible to be lenders.
  • Banks/lenders need technical assistance.
  • Local/small banks are more knowledgeable and supportive.
  • Require certification for lenders/originators/underwriters, etc.
  • Have lenders provide education to home buyers.
  • Need more lender staff who are trained to work with Native Americans.
  • Reach out to tribal organizations to become lenders.
  • How do lenders understand tribal operating areas or who to contact for First Right of Refusal on fee land?               
  • Will lending institutions allow for an assumption by a lender that does not do 184 loans?
  • Lenders are imposing overlays to underwriting guidelines.
  • There need to be consequences if lenders do not follow their responsibilities (they should just be passing the homes off to Hud to collect their guarantee).
  • Loan processors and servicers need to be educated on defaults and what the loan guarantee is.
  • How do you get a lender to partner when you have fractionated land?
  • Long period of time until closing limits ability to work with local banks.
  • Lenders like uniformity and certainty, so follow industry standards, but allow for flexibility for issues unique to Indian Country and trust land.
  • Incentives should be created for lenders to play a role in foreclosure prevention.
  • Include TDHEs and Native CDFIs in the new regulations as designated HUD intermediary counseling agencies.

Loan Limits These comments pertain the upper limit on the loan that HUD will guarantee.

  • Loan limits are too low and should be raised to match or exceed FHA limits.
  • Limits do not reflect the cost of construction, so they should be adjusted to reflect the Total Development Costs.
  • Create limits based on median city/neighborhood pricing (rather than county level), as some counties are extremely large and contain a wide variety of home prices.
  • The cost of infrastructure raises the required loan amount above the limit.
  • There should be no loan limits if the family can afford it.
  • Loan limits should be issued annually/timely.
  • 2nd mortgages are sometimes required to make up difference between cost of home and loan limits.

Financing – These comments pertain to rates and fees involved with the mortgage loan transaction.

  • There should be a cap/mandated amount on closing costs.
  • Create a VA/Section 184 hybrid loan program that combines the best of both programs.
  • Bank appraisers should be trained on the cost of construction of Total Development Costs in Alaska so that they consider them when completing the appraisal process.
  • Follow FHA's underwriting guidelines for "cash-out" refinances to reflect the requirement of no late mortgage payments with a 12-month period (instead of 36 months).
  • Consider allowing homeowner association loans. They could be used by older people looking to downsize and not do maintenance.
  • Section 184 should have their own rates.
  • The lowest fee/interest rates should be offered to tribes.
  • Revisit the 10% construction contingency requirement which has caused a problem for many borrowers because the cash set-aside cannot be financed, and model it after USDA’s Section 502 language.
  • It is difficult to get appraisals on trust land and a better process is needed.
  • Lenders used to be able to lend more than 100%, so tribes could roll costs like construction into loan, but the costs of construction have been taken away from appraisal.
  • Mortgage insurance rate has increased twice, which makes the program less desirable and more expensive for families.
  • Down payment and closing cost assistance would be helpful.
  • Transportation costs should be included in the appraisal.
  • Training on cost basis for tribal land should include inspections.

Processing These comments pertain to HUD reviewing the application and securing the guarantee to the lender.

  • There should be a mandatory issuance period (a guarantee on the HUD guarantee) to assuage lenders’ feeling of risk and prevent them from walking away from program.
  • Increase the number of HUD staff to facilitate eliminating the backlog.
  • Develop an online status report so that tribal members can know where in the process their application is.
  • Maintain a manual underwriting system so that individual circumstances can be taken into consideration.
  • Begin processing loans while waiting for BIA title.
  • Develop an automated underwriting system, which would be more efficient than manual underwriting.
  • Share requirements for HUD underwriting and loan approvals to reduce processing time.

QualificationsThese comments pertain to the requirements a borrower must meet when applying for a Section 184 guaranteed loan.

  • Medical collections debt should not be required to be paid off (emulate FHA).
  • Remove the 12-month waiting period/” seasoning period” after tax liens or judgments have been paid (emulate FHA).
  • Use actual student loan payments to qualify as opposed to the 1% payment of student loan amount.
  • Increase maximum debt income ratio from 41% to 43% with requiring compensating factors (emulate FHA).
  • Borrower planning to use 184 loans for multi-unit property should be allowed to use a specified percentage of the projected rents (as determined by an appraiser) to qualify (emulate FHA).
  • Any change to the participation criteria towards "trust land" would hinder utilization of the program in Alaska, where most land is fee land.
  • Overdrafts from a savings account to a checking account should not be regarded as an unfavorable factor if the borrowers have sufficient funds.
  • If an applicant's student loan payment is reduced or zero, their debt ratio should reflect the same. The usual of theoretical payment instead of actual payment reduces the applicant's affordability.
  • Student loans and medical bills are causing the most qualifying problems.
  • There should be a 1% rule for student loans.
  • There needs to be more outreach and education on the program, as many people do not know about it.
  • The appraisal process seems to be very focused on income, even though lenders say that it wouldn’t be income based because of the government guarantee.
  • The application process is not friendly.
  • Home buyer/credit training education should be required (pre-application, post-closing, delinquency).
  • Need training for tribal members on how to improve and recover their credit scores.
  • Develop training for tribal policy makers on how to mitigate risk for lenders on trust land.
  • If a tribe says that someone can lease the land for 25 years, then a mortgage loan should be able to proceed.
  • After a homebuyer is foreclosed on, are they banned from Section 184 for life or can they become eligible again?
  • FHA allows borrowers to count potential rent for multiunit property, but 184 does not.
  • Synchronize requirements to FHA’s s so easier for borrower and lender (i.e. same criteria).
  • Is it possible to become eligible with 6 months of good credit (after collections have been paid off)?
  • Would like to be able to pay off judgment before closing without 2 year waiting period.
  • No income testing for NAHASDA borrowers.

UnitsThese comments pertain to the types and number of units that can be financed.

  • The number of units allowed to build should be increased from the current limit of 4.
  • Allow mobile homes to be bought using Section 184.
  • Allow multi-units that are being constructed in contiguous lots to close under a single transaction to cut down on costs.
  • Are individuals eligible to build apartment complexes like tribes?
  • Create a variance for condos/townhouses that would be viable except for not being FHA certified or wrongly recorded/identified (either through an inspection/appraisal or HOA/maintenance addendum).

Eligible PlacesThese comments pertain to the geographic areas (both fee simple and trust land) where Section 184 loans may be used.

  • Expand the service areas such that additional counties/states are eligible for Section 184.
  • There should be two separate programs….one for fee land and one for trust land.
  • Would HUD consider land loans on trust land if someone wants to build on trust land?

AppropriationsThese comments pertain to the Fiscal Year 2018 appropriations.

  • Will the funding reduction in the appropriations affect the program?
  • Use the FY18 appropriation for $100 million as grants for tribes to implement HEARTH and/or towards a home mortgage plan.

Interagency These comments pertain to HUD and its working relationship with other Federal agencies.

  • Develop better interagency coordination, especially with the BIA around obtaining timely certified TSRs.
  • BIA processes vary by agency and region, which hinders the overall process.
  • Agencies need to consolidate/standardize and accept each other’s forms (like environmental reviews).
  • Agencies have same requirements, but different processes.
  • HUD should increase awareness/capacity on the HEARTH Act or tribal surveys to increase the number of loans on trust land.
  • Have a stringent ER done first, and have it satisfy the requirements of all agencies.
  • Look into how the military does its lease program, as it is much simple.
  • Need coordination and education for lenders and BIA.
  • Lien leases are not being transferred between lenders when loans are sold. Need to have BIA remove the old lender and put on the new. Need to educate lenders on transfer of loans.
  • BIA needs to better understand the recording process and the significance of proper recordation.
  • VA direct loan is popular because no banks involved, and HUD should model them.
  • Why has HEARTH Act not been more successful?
  • Is there a waiver through BIA that can be used?

Tribal Courts These comments pertain to the jurisdiction of tribal courts.

  • DOJ and OGC need to agree on which court system will be used (and why DOJ won’t use tribal court).
  • If attorneys do want to come to tribal courts, they are not respecting tribal sovereignty.
  • HUD should be allowed to be represented by contract attorneys.
  • Require foreclosures to go forward in tribal courts.
  • Lenders need to know that tribal courts are fair and equitable.
  • If loan is on reservation, it should go to tribal court. If on fee land, it should go to federal court.
  • Tribes not near federal court should be able to use tribal court.
  • HUD should address the legitimacy of Tribal Courts.
  • Memorandums of Understanding with USDA and VA do not insist on federal court jurisdiction, instead allowing foreclosure filings in tribal court.
  • Emulate USDA regulation (7 CFR 2.49) that allows USDA to contract with private attorneys if HUD attorneys do not want to appear in tribal court.

Tribal Role These comments pertain to what role/responsibility a tribe should have in the matters of a tribal member’s mortgage (particularly when default and/or foreclosure occurs).

  • Tribes can’t help members if not notified of defaults, so they should be notified (30 days after delinquency).
  • Lenders should send notification of foreclosure right away with offer of First Right of Refusal, even on fee land.
  • Tribe needs to have a certain person that FROR is sent to so that it is not ignored.
  • Allow First Right of Refusal nationwide/outside of jurisdiction. Tribes would like the option, even if they do not utilize.
  • Allow tribes to assume foreclosures on trust land.
  • Tribes need to have notification of foreclosure put into down payment assistance agreements or else banks cannot release the information about the foreclosure.
  • There used to be a form about defaults/foreclosures that needs to be brought back.
  • Tribal leadership needs training on how to do a 184 loan for construction and then have a tribal member assume. It is difficult for a tribe to maintain the loans as it reduces the ability to take out further loans.
  • Evaluate the option of right of first refusal for tribes and see why it is rarely used.
  • Develop a mitigation agreement between lenders and tribes and allow the tribe/TDHE to manage the mitigation on HUD's behalf.
  • Create an effective way for lenders to communicate with tribes whose member has defaulted. Have the first right of refusal letter come from the lender to the tribe, not HUD.
  • When an individual borrower defaults on a loan, the onus for evictions and collections should be on the lender. The Tribe/TDHE did not participate in the loan and should be required to participate in reconciling the loan.

Loss Mitigation These comments pertain to loss mitigation.

  • There need to be specific guidelines on loss mitigation.
  • Once a mortgage is accelerated, HUD should have the authority to sell the property to the tribe or TDHE at a net recovery rate, like USDA Rural Development.
  • HUD should have the authority to contract with organizations that can provide or hire subcontractors to provide risk mitigation services pursuant to each tribe’s mortgage and foreclosure codes.
  • What is the disposition of court cases regarding loss mitigation and were BIA options observed?
  • Need loss mitigation guidelines and opportunities for loan modifications. Lenders should be required to work with tribes.

Definitions These comments pertain to terms and clarifications of existing terms to be included in the regulations.

  • HUD should clarify what the regulations mean by "standard housing" in Section 1005.101.
  • Section 1005.107(b)(1) needs to be amended to clarify that a lease approved by a tribe under a tribe's leasing laws is eligible as an Approved Leave without the Lease being approved by BIA.
  • Section 1005.107(b)(3) should include a process that requires a lender or HUD to communicate with tribes/TDHEs when there is a default.
  • Section 1005.107(b)(4) that recognizes tribes have jurisdiction over foreclosures on their lands must stay.
  • Extend the comment period.
  • Do not change the statute such that state recognized tribes are no longer eligible for Section 184.      
  • Make sure new regulations do not create any further burden on the home buyer. Some of the restrictive regulations slow down the process.
  • Regulations should be flexible enough to address the issues unique to Indian Country (instead of deferring to FHA regulations).
  • No definition for Indian family exists.
  • Need clarification on PMI, as the regulation requires mortgage insurance to be paid until below 78% (even if below 20% down). 
  • Need to clearly define timeframe for expanding area and participants in the program, as well as the documents required.
  • Make policy change to say that if there is a standing loan on the property then it is considered valid and do not need re-validation prior to transactions.
  • How do you do a single close process with construction?
  • There needs to be a clear, laid out process about options during foreclosure and clarification about the trust land process.
  • How do we change the program to allow for non-enrolled Indians?
  • 1005.107 – Eligible collateral, leasehold of restricted land under (b)(1) approved leases should include leases that are approved.
  • Sections 246 and 247 – tribes would like to see rating system and disqualification of lenders.
  • With fresh set of regulations, all existing handbooks and guidelines should be dropped.

Resources