Self-Employed Income Decline, Gift Funds, and a Low Appraisal
Priya and Marcus apply for a $420,000 conventional purchase with 10% down. Priya is a W-2 teacher. Marcus is self-employed; his 2023 Schedule C net income was $95,000, but 2024 net income fell to $58,000 after losing his largest client. They want to use $18,000 from a cash-out refinance of an investment property and a $12,000 gift from Marcus's mother for the down payment. Marcus's mother has not provided a gift letter. The appraisal comes in at $405,000 on a $450,000 purchase price, raising the LTV. The real estate agent offers to pay $3,000 of closing costs if the loan officer uses the agent's affiliated title company. Marcus asks the loan officer to 'use my 2023 income and the purchase price' and to order a second appraisal from a friend. The loan officer considers a 40-year non-QM loan with stated income to avoid the income drop.
1. Identify the underwriting and ability-to-repay problems in this file.
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The loan officer should not use 2023 income when 2024 income has declined materially. For self-employed borrowers, underwriters must analyze the most recent year and determine whether the decline is temporary or continuing. A drop from $95,000 to $58,000 is significant, and losing the largest client suggests a continuing decline. Using a 40-year non-QM stated-income loan to avoid the issue raises ability-to-repay concerns and may not be suitable; the lender must document repayment ability under the applicable ATR and QM rules. The cash-out refinance funds create a new debt and must be underwritten with that payment. The gift requires a signed gift letter, evidence of transfer, and donor ability. The appraisal at $405,000 means the LTV is higher than planned; the loan officer cannot simply 'use the purchase price.'
2. How should the loan officer handle the real estate agent's offer to pay closing costs in exchange for using the affiliated title company?
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The real estate agent's offer to pay $3,000 of closing costs if the loan officer uses the affiliated title company is a referral arrangement. RESPA Section 8 prohibits giving or receiving a thing of value for the referral of settlement service business. The loan officer should not condition the use of the title company on the agent's payment. The payment itself may be a permissible seller or agent credit only if it is disclosed, not tied to a referral, and permitted by the loan program and investor. The loan officer should disclose the relationship, let the borrower shop for title services, and document the credit on the Closing Disclosure. If the agent's payment is really a referral fee, it must be rejected.
3. What should happen before closing, and how should the loan officer respond to Marcus's requests?
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Before closing, the loan officer should re-underwrite with 2024 income, verify the cash-out proceeds and new payment, obtain a complete gift letter and transfer documentation, and re-run the LTV using the lower appraisal. If the borrower does not qualify, the loan officer should present alternatives in writing, such as a smaller loan, more down payment, or a different program, without steering. The loan officer should not order a second appraisal from a friend to influence the value; appraisal independence rules prohibit that. The loan officer should document the borrower's ability to repay, provide the revised disclosures within the required timing, and escalate the agent's offer to compliance. If the loan cannot close compliantly, it should be delayed.