REFinBlog

Editor: David Reiss
Brooklyn Law School

July 29, 2016

Another Housing Bubble?

By David Reiss

bubble-500130_1280

Trulia quoted me in Warning Signs: Another Housing Bubble Is Coming. It opens,

Signs show another bubble coming. Some experts have a different opinion.

When the housing market crashed in 2008, it caused what came to be known as ”The Great Recession.” When the bubble burst, it ”sent a shock through the entire financial system, increasing the perceived credit risk throughout the economy,” according to a report published in The Journal of Business Inquiry.

The crash caused homes to lose up to half their value. People became underwater, owing more than their home was worth. And who wants to pay on a mortgage that’s larger than what the home could sell for? Although some people did just that, many more opted to short sell their homes or to simply walk away and have the bank foreclose.

Present Day

Fast-forward to 2016, and we are seeing hot, even ” overheated,” housing markets; bidding wars; rising home prices; and house flippers – all the signs of a housing bubble that’s about to burst. Are we repeating the mistakes we made before? Yes and no. Let’s explore four reasons the housing bubble burst and whether we’re experiencing the same conditions today.

1. Easy Credit

Before the 2008 crash, credit was easy to get. Pretty much, if you were breathing, you could get a mortgage loan. This led to people getting mortgages who ultimately couldn’t afford to pay them back. They lost their homes, and this contributed in large part to the housing crisis. Today the situation is different. ”Credit is still much tighter than it was before the financial crisis,” says David Reiss, professor of law at Brooklyn Law School. ”This is particularly true for those with less-than-perfect credit scores.” He explains: ”There are almost no no-down-payment loans as there were in the early 2000s. Those defaulted at incredibly high rates.”

But what about Federal Housing Administration (FHA) loans? They feature ”low down payments, low closing costs, and easy credit qualifying.” Those are the very features that should sound some warning bells. But before you get too alarmed, keep in mind that the FHA has been making loans to people who do not qualify for a conventional mortgage since 1934. ”While there are low-down-payment loans available from Fannie, Freddie, and the FHA, their underwriting standards appear to be higher than those for low-down-payment products from the early 2000s,” says Reiss.

2. Low Interest Rates

Mortgage rates have been low for so long that you might not realize that was not always the case. In 1982, for example, mortgage rates were 18 percent. From 2002 to 2005, the rates stayed at about 6 percent, which enticed people to take out mortgage loans. And in 2016, we’re seeing historic lows of under 3.5 percent. If rates go up, we might see housing demand and housing prices fall.

3. ARMS

Before the housing crash when home prices were rising fast, many people were priced out of the market with a fixed-rate mortgage because they couldn’t afford the monthly mortgage payments. But they could afford lower payments that were possible with an adjustable-rate mortgage – until that rate adjusted up. In 2005, 38.5 percent of the mortgage market was ARMs. But in 2015, that amount has dropped considerably to 5.3 percent.

4. A Buying Frenzy

There’s an old story that before the stock market crash of 1929, Joseph Kennedy, Sr., sold his shares. Why? Because he received a stock tip from a shoeshine boy. Kennedy figured, the story goes, that if the stock market was popular enough for a shoeshine boy to be interested, the speculative bubble had become too big.

Before the housing crash, this country saw a home buying frenzy similar to what happened before the stock market crash. Everyone from lenders to rating agencies to investors (foreign and American) to investment bankers to home buyers was eager to get into the mortgage game because house values kept rising. Today, we are seeing a similar buying frenzy in some markets, such as San Francisco, New York, and Miami . Some experts think that the price increases of homes in those areas are not sustainable. They say that because heavy foreign investment in those areas is part of what’s driving up prices, if those investments slow or stop, we could see a bubble burst.

So what do some experts think?

David Ranish, owner/broker for The Coastline Real Estate Group in Laguna Beach, CA, says: ”There are concerns about another housing bubble, but I do not see it. The market could stabilize, but a complete collapse is highly unlikely.”

Bruce Ailion, an Atlanta, GA, real estate expert, says,” ”Five to six years ago, I was a buyer of homes. Today I am a seller.”

David Reiss says, ”It is probably a fool’s game to predict the future of the housing market or whether we are in a bubble that is soon to burst.”

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July 29, 2016 | Permalink | No Comments

July 28, 2016

Freddie and Fannie Nightmare Scenario

By David Reiss

male and female zombies

For a number of years, I have warned of the increased operational risk that results from leaving Fannie Mae and Freddie Mac in the limbo of their conservatorships. “Operational risk” refers to risks that a company faces from things like poor procedures, systems, policies and employee supervision.

The Inspector General of the Federal Housing Finance Agency has released three reports that address aspects of Fannie and Freddie’s operational risk (along with that of the Federal Home Loan Bank System). The three reports are:

The last of the three reports notes,

As the regulator of Fannie Mae and Freddie Mac (collectively, the Enterprises) and of the Federal Home Loan Banks (FHLBanks), the Federal Housing Finance Agency (FHFA) is tasked by statute to ensure that these entities operate safely and soundly so that they serve as a reliable source of liquidity and funding for housing finance and community investment. Examinations of its regulated entities are fundamental to FHFA’s supervisory mission.

FHFA has directed its Division of Enterprise Regulation (DER) to conduct supervisory activities of the Enterprises and its Division of Federal Home Loan Bank Regulation (DBR) to conduct these activities for the FHLBanks. When DER or DBR identifies a deficiency, it will classify the deficiency as a Matter Requiring Attention (MRA), a violation, or a recommendation. According to FHFA, MRAs are “the most serious supervisory matters.” FHFA requires the regulated entities to promptly remediate MRAs. Examiners are required to “check and document” the progress of MRA remediation.

In FHFA Office of Inspector General’s (OIG) 2016 Audit and Evaluation Plan, we explained our intent to focus our resources on programs and operations that pose the greatest financial, governance, and reputational risk to FHFA, the Enterprises, and the FHLBanks. One of the four areas we identified was FHFA’s rigor in its supervision of the Enterprises and the FHLBanks. According to FHFA, a key component of effective supervision is close oversight of efforts by an entity it regulates to correct identified supervisory concerns. This evaluation is one in a series of OIG reports that assess the robustness of FHFA’s policies, procedures, and practices governing its oversight of remediation of supervisory concerns by a regulated entity.

In this evaluation, we compared the MRA tracking systems used by two federal financial regulators and DBR to those used by the DER Fannie Mae and Freddie Mac examination teams. We found substantial weaknesses in DER’s tracking systems that limit significantly the utility of those systems as a tool to monitor the Enterprises’ efforts to remediate deficiencies giving rise to MRAs. We also reviewed a sample of open and closed MRAs issued to each Enterprise by DER to assess whether DER examiners performed independent assessments of the timeliness and adequacy of each Enterprise’s efforts to remediate the MRA. Our review found a lack of consistent independent analysis by DER examiners of the timeliness and adequacy of each Enterprise’s remedial efforts. (2)

My nightmare scenario is that Fannie and Freddie operations have slowly degraded as they have been left to linger in the limbo of conservatorship. This kind of degradation is not really observable from the outside and its effects are not known until something really bad happens. Maybe their hedging strategy is poorly designed, maybe their underwriting is allowed to become outdated, maybe too many employees lose their drive.

Eight years of conservatorship can do that to a company. When it happens, you can be sure that members of Congress will blame a whole host of people for this failure. But the blame will sit with Congress. Because Democrats and Republicans cannot come up with a reasonable compromise, we are left with two zombie organizations dominating our housing finance system.

Hopefully, I am wrong about this. Or maybe I am right about it but we dodge the bullet by some stroke of luck. But the longer we leave the two companies in this state, the more likely it is that things go bad and the taxpayer is left holding the bag once again.

 

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July 28, 2016 | Permalink | No Comments

July 27, 2016

Regulating Small Lenders

By David Reiss

photo by Doug Kerr

The Consumer Financial Protection Bureau is often subject to a lot of criticism for imposing a heavy regulatory burden on small community banks and credit unions (together, community lenders). A recent Government Accountability Office report, Community Lenders Remain Active under New Rules, but CFPB Needs More Complete Plans for Reviewing Rules, undermines that critique.

The GAO did this report at the request of Representative Hensarling (R-TX), the Financial Services Committee Chair, who sought to understand the impact of various rules promulgated under Dodd-Frank on community lenders and their customers. The report studied the impact of mortgage servicing and regulatory capital rules on community lenders’ participation in the mortgage servicing market. (Mortgage servicing refers to the business of receiving monthly mortgage payments and providing other services relating to outstanding mortgages on behalf of the owner of the mortgage, which in some cases may also be the servicer itself).

The GAO found that community lenders “remained active in servicing mortgage loans under the” CFPB’s new mortgage-servicing rules. (n.p., front matter)

The report also described the small lender business model in some detail. Servicing activities

generated income and allowed them to maintain strong relationships with their customers. Some of these community lenders and industry associations noted that holding mortgage loans in portfolio and servicing these mortgage loans helped with overall profitability. For example, the servicing revenue can offset a reduction in income from originating loans when interest rates rise. Conversely, when interest rates decline, borrowers are more likely to prepay or refinance their mortgage loans, and servicing revenue may decline, while income from new mortgage loan originations might increase. (15)

Community lenders also claimed that ” they and their customers benefit from the close relationship maintained when these institutions service mortgages. . . . For example, representatives at one community bank told us that a customer who could not make a mortgage payment could meet directly with a bank representative to develop a payment plan.”  (16)

We often romanticize the small lenders (think, Bailey Brothers’ Building and Loan) and demonize the big banks (think, The Big Short). This report shows that the little guy is doing okay under Dodd-Frank, at least when it comes to servicing. It remains to be seen whether borrowers in the aggregate are better off with small lenders and their personal touch, but we will leave that discussion for another day.

 

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July 27, 2016 | Permalink | No Comments

July 26, 2016

Retiring with a Mortgage

By David Reiss

senior-golfing

MassMutual quoted me in Is it OK to Retire with a Mortgage? It opens,

The conventional wisdom is that you should pay off your mortgage before you retire. Yet, about 4.4 million retired homeowners still had a mortgage in 2011, according to an analysis of American Community Survey data by the Consumer Financial Protection Bureau (CFPB). More than half of them spend 30 percent or more of their income on housing and related expenses, a percentage that may be uncomfortably high even for working homeowners.

Not having to put such a large percentage — or any percentage — of your retirement income toward a monthly mortgage payment in retirement will certainly make it easier to meet your other expenses. But is it really so bad to have a mortgage payment during retirement?

“The logic behind the rule of thumb is that your income will go down in retirement, so it would be helpful if your monthly expenses went down significantly as well,” said David Reiss, a law professor who specializes in real estate and consumer financial services at Brooklyn Law School in New York. But if your income from Social Security and a pension (if you have one), and to some extent your assets (the nest egg you plan to draw on for additional retirement income), will be sufficient to make your monthly mortgage payment and meet your other expenses in retirement, there is no real reason that you have to get rid of the mortgage, he said. The key is that keeping your mortgage during retirement should be part of a plan and not a response to a crisis.

More Homeowners are Retiring with a Mortgage

More homeowners retired with a mortgage in 2011 than a decade earlier, according to the CFPB’s analysis of U.S. census data.1 They’re less likely to have their homes paid off because they’re purchasing later in life, making smaller down payments and tapping equity for other purchases.1 In fact, 36.6 percent of homeowners ages 65 to 74 and 21.2 percent homeowners age 75 and older (some of whom may not be retired yet) had mortgages or home equity loans in 2010, according to the Federal Reserve. The median balance was $79,000 for the 65 to 74 age group, and $58,000 for the 75 and up age group.

The CFPB points out two problems with carrying a mortgage during retirement: less accumulated net wealth and the possibility of foreclosure if retirees can’t make their mortgage payments. Foreclosure is harder to recover from when you’re older because you may not be able to return to the workforce to compensate for the loss and because you’re more likely to have health problems or cognitive impairments, the CFPB said.1

Having less accumulated net wealth is a problem, especially if most of your wealth consists of your home equity, which is less liquid than stocks, bonds and cash. Foreclosure is a serious problem if it happens to you, but the odds are slim: even in the aftermath of the housing crisis, in 2011, foreclosure rates were only 2.55 percent for homeowners 65 to 74 and 3.19 percent for homeowners 75 and older.

Some retirement-age homeowners who haven’t paid off their mortgages undoubtedly would rather be debt free but couldn’t afford to retire their home loan sooner. But others might be putting the money that could have gone toward extra mortgage payments to a better use. (footnotes omitted)

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July 26, 2016 | Permalink | No Comments

July 25, 2016

Creating Safe and Healthy Living Environments

By David Reiss

photo by Will Keightley

The Center for American Progress has released Creating Safe and Healthy Living Environments for Low-Income Families. It opens,

A strong home is central to all of our daily lives. People in the United States spend about 70 percent of their time inside a residence. As the Federal Healthy Homes Work Group explained, “A home has a unique place in our everyday lives. Homes are where we start and end our day, where our children live and play, where friends and family gather to celebrate, and where we seek refuge and safety.” Understanding how fundamental homes are to everything we do, it is troubling that more than 30 million housing units in the United States have significant physical or health hazards, such as dilapidated structures, poor heating, damaged plumbing, gas leaks, or lead. Some estimates suggest that the direct and indirect health care costs associated with housing-related illness or injuries are in the billions of dollars. The condition of housing is even more important for children, the elderly, and people with disabilities who need housing structures that support their particular needs.

The condition and quality of a home is often influenced by the neighborhood in which it is located, underscoring how one’s health and life expectancy is determined more by ZIP code than genetic code. According to a recent report by Barbara Sard, vice president for housing policy at the Center for Budget and Policy Priorities, living in neighborhoods of “concentrated disadvantage”—which are characterized by high rates of racial segregation, unemployment, single-parent families, and exposure to neighborhood violence—can impair children’s cognitive development and school performance. Residents of poor neighborhoods also tend to experience health problems—including depression, asthma, diabetes, and heart disease—at higher-than-average rates. This is particularly troubling given that African American, American Indian and Alaskan Native, and Latino children are six to nine times more likely than white children to live in high-poverty communities.

The country’s affordable housing crisis is partially to blame for families and individuals tolerating substandard housing conditions and unhealthy neighborhoods. Half of all renters spend more than 30 percent of their income on housing—the threshold commonly deemed affordable—while 26 percent spend more than half their income on housing. While housing assistance programs such as public housing and the Housing Choice Voucher program, commonly referred to as Section 8, provide critical support to families struggling to meet housing costs, only one in four households eligible for rental assistance actually receives it due to limited federal funding. Furthermore, millions of Americans face evictions each year. As work by Harvard University sociologist Matthew Desmond has highlighted, eviction is not just a condition of poverty but a cause of it, trapping families in poverty, preventing them from accessing and maintaining safe housing or communities, and corresponding with higher rates of depression and suicide.

This report provides an overview of the conditions of the nation’s housing stock, barriers to accessing housing for people with disabilities, the effects that neighborhood safety has on families, and recommendations for improving these conditions. Given how central homes and communities are to people’s lives, federal and local leaders must work to ensure low-income families have access to living environments that are conducive to their success. (1-2, footnotes omitted)

There were rapid improvements in housing healthy and safety over the 20th century. Since the time of Jacob Riis’ How The Other Half Lives, we went from outhouses being common to the public subsidy of modern apartment buildings in cities and the suburbanization of the rest country.

As a result, many people do not realize the extent to which many households continue to live in substandard housing. Lead paint exposure is perhaps the most known of the  risks, but it is not the only one.

This CAP report also highlights the risks that neighborhoods can present to their residents. Being safe in your home does not mean that you are safe on your street, on your walk to school or on your daily commute.

The report provides provides a useful overview of the challenges that low-income households face, inside and out of their homes.

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July 25, 2016 | Permalink | No Comments

July 22, 2016

Wall Street’s New Toxic Transactions

By David Reiss

Toxic Real Estate

The National Consumer Law Center released a report, Toxic Transactions: How Land Installment Contracts Once Again Threaten Communities of Color. It describes land installment contracts as follows:

Land contracts are marketed as an alternative path to homeownership in credit-starved communities. The homebuyers entering into these transactions are disproportionately . . . people of color and living on limited income. Many are from immigrant communities.

These land contracts are built to fail, as sellers make more money by finding a way to cancel the contract so as to churn many successive would-be homeowners through the property. Since sellers have an incentive to churn the properties, their interests are exactly opposite to those of the buyers. This is a significant difference from the mainstream home purchase market, where generally the buyer and the seller both have the incentive to see the transaction succeed.

Reliable data about the prevalence of land contract sales is not readily available. According to the U.S. Census, 3.5 million people were buying a home through a land contract in 2009, the last year for which such data is available. But this number likely understates the prevalence of land contracts, as many contract buyers do not understand the nature of their transaction sufficiently to report it.

Evidence suggests that land contracts are making a resurgence in the wake of the foreclosure crisis. An investigative report by the Star Tribune found that land contract sales in the Twin Cities had increased 50% from 2007 to 2013. Recent reports from The New York Times and Bloomberg reveal growing interest from private equity-backed investors in using land contracts to turn a profit on the glut of foreclosed homes in blighted cities around the country.

Few states have laws addressing the problems with land installment contracts, and the state laws on the books are generally insufficient to protect consumers. The Consumer Financial Protection Bureau (CFPB) has the mandate to regulate and prevent unfair and deceptive practices in the consumer mortgage marketplace, but has not yet used this authority to address the problems with land installment contracts. (1-2, footnotes omitted)

This report shines light on this disturbing development in the housing market and describes the history of predatory land contracts in communities of color since the 1930s. It also shows how their use was abetted by credit discrimination: communities of color were redlined by mainstream lenders who were following policies set by the Federal Housing Administration and other government agencies.

The report describes how these contracts give the illusion of home ownership:

  • They are structured to fail so that the seller can resell the property to another unsuspecting buyer.
  • They shift the burden of major repairs to the buyer, without exposing the seller to claims that the homes breach the warranty of habitability that a landlord could face from a tenant.
  • They often have purchase prices that are far in excess of comparable properties on the regular home purchase market, a fact that is often masked by the way that land contract payments are structured.
  • The properties often have title problems, like unsatisfied mortgages, that would not have passed muster in a traditional sale of a house.
  • They often are structured to avoid consumer protection statutes that had been enacted in response to previous problems with land contracts.

The report identifies Wall Street firms, like Apollo Global Management, that are funding these businesses. It also proposes a variety of regulatory fixes, not least of which is to have the CFPB take an active role in this shadowy corner of the housing market.

This is all to the good, but I really have to wonder if we are stuck just treating the symptoms of income and wealth inequality. Just as it is hard to imagine how we could regulate ourselves out of the problems faced by tenants that were described in Matthew Desmond’s Evicted, it is hard to imagine that we can easily rid low-income communities of bottom feeders who prey on dreams of homeownership with one scheme or another. It is good, of course, that the National Consumer Law Center is working on this issue, but perhaps we all need to reach for bigger solutions at the same time that we try to stamp out this type of abusive behavior.

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July 22, 2016 | Permalink | No Comments

July 21, 2016

Dual Agency Explained

By David Reiss

photo by Richard P J Lambert

Trulia quoted me in What Is Dual Agency? (And Why You Should Beware). It opens,

Home sellers and homebuyers are two sides of a complementary transaction. Should they each have their own agent, or is one agent enough? The answer: It depends.

You’ve probably heard the phrase “You can’t have your cake and eat it too.” But if you’ve ever puzzled over it’s meaning, here’s a hint: If you eat your cake now, you won’t have any left over to look forward to eating later. In other words, sometimes a person is forced to make a choice between two good options. In the real estate world, dual agency breaks the cake rule: If your real estate agent also represents the sellers of the home you want to buy, you don’t necessarily need to ditch them. In many cases, you can keep your agent and get the house too — if you want to, that is.

Whether you’re buying a home in Providence, RI, or Tampa, FL, it’s typical for one agent to represent the seller and another agent to represent the buyer. With dual agency, one agent works for both the buyer and seller — and keeps the full commission. Dual agency also occurs when agents from the same brokerage represent each party. But like enjoying a huge slice of cake and in return getting a bellyache, there are definitely pros and cons to agreeing to dual agency.

Pro: Streamlined communication

Because one real estate agent or brokerage represents the buyer and the seller, the agent doesn’t need to wait every time communication needs to happen between the parties. Streamlined communication often creates a smoother transaction. “You are in charge of both sides, including paperwork, scheduling, and deadlines,” says Mindy Jensen, a Colorado agent and community manager of BiggerPockets.com. “We’ve all been involved in a sale with an agent who didn’t respond in a timely manner, missed deadlines, and in general did not perform their duties as they should have. For us control freaks, dual agency can seem like a great thing.”

Con: No advice

Because a dual agent is working in a potential conflict-of-interest situation — one client (the seller) wants to get as high a price as possible, while the other client (the buyer) wants to pay as little as possible — the agent can’t take sides or give advice. Bruce Ailion, an Atlanta, GA, real estate agent and attorney, compares dual agency to having one attorney representing both husband and wife in a divorce. “The parties’ interests are adverse and are best represented by independent professionals,” he says.

The agent in a dual agency situation becomes, instead of a coach, more of a referee. “The agent cannot disclose confidential information to either party and has to act in a neutral position during the transaction,” says Emily Matles, a New York, NY, agent with Douglas Elliman. Matthew Berger, another New York, NY, agent with Douglas Elliman, says: “When the listing agent steps into the role of dual agent, they cannot give advice to the seller nor the buyer.” On the other hand, when you have an independent agent, “You are more likely to get the benefits of being a principal getting fiduciary benefits,” Ailion says.

Pro: There must be full disclosure

Whether you’re a seller or a buyer, there’s nothing to fear about dual agency: If you don’t consent to the practice, it won’t happen. “The dual-agent broker must ensure that both parties know of the arrangement and consent to it,” says David Reiss, professor of law at Brooklyn Law School. His advice: “Home sellers should review the terms of the listing agreement before they sign it to see if dual agency is being contemplated.”

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July 21, 2016 | Permalink | No Comments