August 13, 2014
The Structured Finance Industry Group has issued RMBS 3.0: A Comprehensive Set of Proposed Industry Standards to Promote Growth in the Private Label Securities Market. This “green paper,” frequently referred to as a First Edition, states that RMBS 3.0 is an initiative
established with the primary goal of re-invigorating the “private label” residential mortgage-backed securities (“RMBS”) market.
Initiated by members of SFIG, the project seeks to reduce substantive differences within current market practices through an open discussion among a broad cross-section of market participants. Where possible, participants seek to identify and agree upon best practices. RMBS 3.0 focuses on the following areas related to RMBS:
- Representations and warranties, repurchase governance and other enforcement mechanisms;
- Due diligence, disclosure and data issues; and
- Roles and responsibilities of transaction parties and their communications with investors. (1 footnotes omitted)
RMBS 3.0 is expected to
1. Create standardization where possible, in a manner that reflects widely agreed upon best practices and procedures.
2. Clarify differences in alternative standards in a centralized and easily comprehendible manner to improve transparency across RMBS transactions.
3. Develop new solutions to the challenges that impede the emergence of a sustainable, scalable and fluid post-crisis RMBS market.
4. Draft or endorse model contractual provisions, or alternative “benchmark” structural approaches, where appropriate to reflect the foregoing.(2)
There is much of interest in this attempt at self-regulation by the now quiescent but formerly roaring private-label market. But I think that readers of this blog would be interested in its approach to consumer protection regulation. First, the green paper refers to it as “consumer compliance.” (See, e.g., 23) Unsurprisingly, the paper is only concerned with protecting industry participants from liability for violations of consumer protection/consumer compliance laws. It pays no lip service to the spirit of consumer protection — promoting sustainable credit on transparent terms. That’s fine given the constituents of the SFIG, but it only confirms the importance of active consumer protection regulators and enforcement agencies who will look beyond rote compliance with regulations. The private-label industry is capable of rapid change once it gets going, change that can outpace regulations. Someone has to keep an eye on it with an eye toward to the principles that should guide a fair market for consumer credit.
August 12, 2014
The Federal Housing Finance Agency (FHFA) has posted a Request for Input on “the proposed structure for a Single Security that would be issued and guaranteed by Fannie Mae or Freddie Mac.” The FHFA’s press release states that
The Single Security project is intended to improve the overall liquidity of Fannie Mae and Freddie Mac mortgage-backed securities by creating a Single Security that is eligible for trading in the to-be-announced (TBA) market. FHFA is requesting public input on all aspects of the proposed Single Security structure and is especially focused on issues regarding the transition from the current system to a Single Security. Specific questions FHFA is asking relate to TBA eligibility, legacy Fannie Mae and Freddie Mac securities, potential industry impact of the Single Security initiative, and the risk of market disruption.
The particular questions for which the FHFA invites feedback are
- What key factors regarding TBA eligibility status should be considered in the design of and transition to a Single Security?
- What issues should be considered in seeking to ensure broad market liquidity for the legacy securities?
- As discussed above, this is a multi-year initiative with many stakeholders. What operational, system, policy (e.g., investment guideline), or other effects on the industry should be considered?
- What can be done to ensure a smooth implementation of a Single Security with minimal risk of market disruption? (8)
The FHFA states it is most concerned with achieving “maximum secondary market liquidity,” so it is particularly interested “in views on how to preserve TBA eligibility and ensure that legacy MBS [mortgage-backed securities] and PCs [participation certificates] are fully fungible with the Single Security.” (8)
I must say that I am a little skeptical about the reasons for this move to a Single Security. It is unclear to me that this is an urgent need for the FHFA, the two companies, originating lenders or borrowers. While I have no doubt that it could slightly increase liquidity and slightly decrease the cost of credit, I do not see this move as having a dramatic effect on either.
I would say, though, that this move is consistent with an agenda to move toward a new model of government-supported housing finance, one that could contemplate an end to Fannie and Freddie as we know them and the beginning of a more utility-like securitizer like those proposed in the Johnson-Crapo and Corker-Warner bills. Perhaps the regulator will lead the way to housing finance reform when Congress and the Executive have failed to do so . . ..
Input is due by October 13, 2014.
August 11, 2014
I have posted The Future of the Private Label Securities Market to SSRN (as well as to BePress). I wrote this in response to the Department of Treasury’s request for input on this topic. The abstract reads,
The PLS market, like all markets, cycles from greed to fear, from boom to bust. The mortgage market is still in the fear part of the cycle and recent government interventions in it have, undoubtedly, added to that fear. In recent days, there has been a lot of industry pushback against the government’s approach, including threats to pull out of various sectors. But the government should not chart its course based on today’s news reports. Rather, it should identify fundamentals and stick to them. In particular, its regulatory approach should reflect an attempt to align incentives of market actors with government policies regarding appropriate underwriting and sustainable access to credit. The market will adapt to these constraints. These constraints should then help the market remain healthy throughout the entire business cycle.
August 8, 2014
Jordan Rappaport (Federal Reserve Bank of Kansas City) and Paul Willen (Federal Reserve Bank of Boston) have posted a Current Policy Perspectives,Tight Credit Conditions Continue to Constrain The Housing Recovery. They write,
Rather than cutting off access to mortgage credit for a subset of households, ongoing credit tightness more likely takes the form of strict underwriting procedures applied to all households. Lenders require conservative appraisals, meticulous documentation, and the curing of even the slightest questions of title. To the extent that these standards constitute sound lending practices, adhering to them is a positive development. But the level of vigilance suggests that regulatory uncertainty may also be playing a role.
Since the housing crisis, the FHA, the Federal Housing Finance Agency, the Consumer Financial Protection Bureau, and other government and private organizations have been continually developing a new regulatory framework. Lenders fear that departures from the evolving standards will result in considerable costs, including the forced buyback of loans sold to Fannie and Freddie and the rescinding of FHA mortgage guarantees. The associated uncertainty has caused lenders to act as if strict interpretations of possible restrictive future standards will apply. (2-3)
The authors raise an important question: has the federal government distorted the mortgage market in its pursuit of past wrongdoing and its regulation of behavior going forward? Anecdotal reports such as those about Chase’s withdrawal from the FHA market seem to suggest that the answer is yes. But it appears to me that Rappaport and Willen may be jumping the gun based on the limited data that they analyze in their paper.
Markets cycle from greed to fear, from boom to bust. The mortgage market is still in the fear part of the cycle and government interventions are undoubtedly fierce (just ask BoA). But the government should not chart its course based on short-term market conditions. Rather, it should identify fundamentals and stick to them. Its enforcement approach should reflect clear expectations about compliance with the law. And its regulatory approach should reflect an attempt to align incentives of market actors with government policies regarding appropriate underwriting and sustainable access to credit. The market will adapt to these constraints. These constraints should then help the market remain vibrant throughout the entire business cycle.
The ABA Journal is soliciting suggestions for the Blawg 100, its annual listing of the 100 best legal blogs. Please consider nominating REFinblog. The nomination form is here and nominations are due by 5:00 pm EST on Friday, August 8th. Thank you for your consideration!
August 7, 2014
The Ninth Circuit issued an Opinion in Compton v. Countrywide Financial Corp. et al., (11-cv-00198 Aug. 4, 2014). The District Court had dismissed Compton’s unfair or deceptive act or practice [UDAP] claim because she had failed to allege that the lender had “exceeded its role as a lender and owed an independent duty of care to” the borrower. (14) The Court of Appeals concluded, however, that the homeowner/plaintiff had
sufficiently alleged that BAC engaged in an “unfair or deceptive act or practice” for the purpose of withstanding a motion to dismiss. As previously noted, Compton does not base her UDAP claim on allegations that BAC failed to determine whether she would be financially capable of repaying the loan. Rather, the gist of Compton’s complaint is that BAC misled her into believing that BAC would modify her loan and would not commence foreclosure proceedings while her loan modification request remained under review. As a result of these misrepresentations, Compton engaged in prolonged negotiations, incurred transaction costs in providing and notarizing documents, and endured lengthy delays. The complaint’s description of BAC’s misleading behave or sufficiently alleges a “representation, omission, or practice” that is likely to deceive a reasonable consumer.(15)
This seems to be an important clarification about what a reasonable consumer, or at least a reasonable consumer in Hawaii, should be able to expect from a lender with which she does business.
While the Court reviews a fair amount of precedent that stands for the proposition that a lender does not owe much of a duty to a borrower, Compton seems to stand for the proposition that lenders must act consistently, at least in broad outline, with how we generally expect parties to behave in consumer transactions: telling the truth, negotiating in good faith, minimizing unnecessary transaction costs; and minimizing unnecessary delays.
In reviewing many cases with allegations such as these, it seems to me that judges are genuinely shocked by lender behavior in loan modification negotiations. It remains to be seen whether such cases will change UDAP jurisprudence in any significant way once we have worked through all of the foreclosure crisis cases.
August 6, 2014
The Consumer Financial Protection Bureau has announced the launch of its “new online toolkit called Your Money, Your Goals, a comprehensive guide to empowered financial decision-making that covers topics like budgeting daily expenses, managing debt, and avoiding financial tricks and traps.” The toolkit addresses
- Making spending decisions that help reach goals
- Ordering and fixing credit reports
- Avoiding tricks and traps in choosing financial products
- Making decisions about repaying debts and taking on new debt
- Keeping track of income and bills
- Deciding whether to open a checking account and understanding what’s needed to open one
This sounds like a great initiative and it is central to the statutory mandate of the CFPB. The press release states that the toolkit has been “rigorously field tested.” It sounds from the press release that this means that it had a pilot program launch. But absent from the press release is any discussion of how the success of the program will be measured and why the field test was deemed a success.
I have been critical of the CFPB’s financial literacy agenda before because the scholarship about financial education does not demonstrate that it works all that well. I hope that the CFPB will release the metrics of success by which we should measure Your Money, Your Goals.
Merely providing education is insufficient. The CFPB must demonstrate that the education actually leads to better outcomes for those who receive it.