To Bailout or Not to Bailout: Mortgage Mess Endgames Emerging

In the last week, several ideas for fixing the housing market have surfaced. One is the Third Way proposal, which appears to be an Administration trial balloon. Predictably, it is yet another bailout, with plenty of smoke and mirrors to disguise that fact.

A second proposal, from Sheila Bair yesterday, is to establish a “foreclosure claims commission“. This is in keeping with the direction that Iowa’s Tom Miller has been pushing for with the 50 state attorneys general investigation. This scheme sounds more promising than the Third Way proposal, but is very likely to wind up in bailout territory.

Third is a not-widely-covered plan by Senator Jeff Merkley which has two provisions that would force banks to address the fact that mortgages are deeply under water. That makes it firmly anti-bailout (or more accurately, any resulting bailouts would be explicit as opposed to buried in various mortgage market gimmies to banks). It would thus speed recognition of housing market losses, force debt writedowns, and accelerate repricing and clearing of the housing market.

The Merkley proposal is pro consumer and pro investor; the other two are pro bank. Sadly, it isn’t hard to see which is likely to prevail in the absence of public pressure.

The Bair proposal was presented at the Mortgage Bankers Association meeting in DC, In addition to the not-very-fleshed out idea of a claims fund, she also proposed a list of fairly modest but still badly needed servicing reforms, the biggest being required write downs of second mortgages when the servicer is negotiating the first mortgage with a borrower, and a independent process for appealing loss mitigation turn-downs. The latter is useful but needs to be made broader. Borrowers still lack any recourse save costly and time-consuming litigation if they believe servicers have made errors, so independent review should include a disclosure and dispute process for routine servicing.

The restitution fund concept is worrisome. It is not yet clear whether it will be funded, which means it could be a joint private/public kitty. The provision of any explicit government funding in the absence of a serious investigation, including possible criminal action, is not warranted. The hallmark of this financial crisis is no perps, save some foot soldiers (the hapless robosigners, for instance) have been identified, much less held to account.

And even the private funding model is likely to prove unsatisfactory. HousingWire suggested that it might be based on the BP restitution fund. That’s a red flag. The BP fund was seen as a win for the embattled oil company, since BP was given several years to contribute money to the fund. In addition, even though the fund in theory did not limit BP’s liabilities, most investors reacted as if the damage had been capped. And given that any participant in the fund claims process had to waive his rights to litigate, the process did serve to limit exposure (particularly of the punitive damages sort). Moreover, many people who applied for damages were deemed not to be eligible because the harm they suffered was allegedly too indirect (think hotel owners in affected areas). Others were denied because they could not document revenue and expenses (many small fishermen run heavily cash-based operations that are not hugely profitable even in the best of times).

So it is also easy to imagine, as with the various government mortgage mod programs, that the banks will run the process and will use strict documentation requirements as a way to limit payouts, when their abuse of the documentation procedures they created is at the root of this crisis.

By contrast, there is much to like about the Merkley proposal, which was covered by Dave Dayen at FireDogLake. It has two mechanisms to force banks to recognize and realize losses on underwater mortgages, and thus put an end to “extend and pretend”.

First is a “national short refinance program”. Per Dayen:

When a bank sends a home into foreclosure, it becomes an REO property, to be sold at auction at a large loss for the investors. Instead of going through the long process of resale, with the attendant upkeep that has to be spent by the bank on the home, and the disruption to the property values from having a vacant home in their neighborhood, this short refi program would allow qualified families facing eviction to refinance to an FHA-guaranteed mortgage based on current property values and interest rates. In the interim the family could stay in the home during the appraisal, new underwriting and final resolution. Many families would be able to pay a reduced payment if the home was written down to real value. The investor would get a bigger payoff than selling a vacant home in foreclosure. Neighbors would see their communities stabilized without a vacant property in their midst. And the family would get to stay in their home.

The main effect of the FHA short refi program is likely not to be a wave of mass refis, but to force servicers to offer deep principal mods. If a mortgage leaves the pool via a refi, the servicer loses all of the fees associated with that loan. If the servicer concludes a mod, it still gets ongoing servicing income, but on a lower principal balance.

The second mechanism is judicial modifications, aka bankruptcy cramdowns. In pretty much every other type of secured lending, save for residential mortgages (which were exempted via legislation), when the borrower goes into bankruptcy, the secured debt is written down to the value of the debt, and any amount owing beyond that is added to unsecured debts. The idea is commonsensical: you can’t say a $200,000 mortgage is “secured” by a house now worth $160,000. The court process is well established and not controversial (as in you don’t see fulminating about abuses).

The scaremongering by the banking industry used to forestall judicial foreclosures is that every Tom, Dick, and Harry will run to the courthouse to get out of his mortgage, As anyone who has contemplated or gone though bankruptcy knows, it’s a very painful, humiliating, and disruptive process. And the widespread use of background checks as part of employment screening, with a bad credit record seen as a sign of bad character, is yet another deterrent. Correspondents of mine who would be ideal candidates (for instance, one is underwater due to investments gone sour and Chinese drywall making a sale of their home impossible, yet still have decent cashflow from their main business) are still loath to file.

Proof of the legitimacy of judicial mods as an option comes from the fact that most mortgage backed securities investors favor it, because they see it as a device for servicers to offer principal mods. With servicer fees and expenses coming first out of mortgage cashflow, the costly foreclosure process comes out of investors’ hides. All but a small percentage prefer principal mods because it will produce lower losses to them than costly foreclosures and sales of distressed property.

The Merkley plan has some other promising elements, such as requiring servicers to have a single point of contact (the Bair servicing reforms include this idea), a broad third party review process for mortgage mods (similar to successful programs at the state level) and the end of the “dual track” process (which keep the foreclosure process in motion while mod discussions are underway; this idea was present in a watered down form in the Bair speech as part of the foreclosure “settlement”).

Frankly, although individual borrowers may continue to suffer, the best prospect for an equitable long term solution is to let the wheels of justice continue to grind on. The outburst of reform ideas seems to be the direct result of the Massachusetts Supreme Judicial Court Ibanez decision. The terms of debate are, perversely, still very much skewed in favor of banks despite the considerable harm they have done to homeowners, investors, and communities. But judges are increasingly abandoning the assumption that banks must be right in foreclosure cases, and a more objective posture is sure to put the banking industry even more on the back foot. Letting the courts continue to do their work offers the best hope of exposing, and therefore ultimately remedying, large-scale misconduct by the securitization industry.

Originally published at naked capitalism and reproduced here with permission.

One Response to "To Bailout or Not to Bailout: Mortgage Mess Endgames Emerging"

  1. sierra   January 21, 2011 at 10:50 am

    “The hallmark of this financial crisis is no perps, save some foot soldiers (the hapless robosigners, for instance) have been identified, much less held to account.”That says it all!