Author Archives: David Reiss

Balancing Consumer Protection and Access to Credit

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S&P posted U.S. RMBS Roundtable: Originators, Aggregators, and Counsel Discuss New Qualified Mortgage Rules. In summarizing the roundtable, S&P notes that

The ability-to-repay rule, ostensibly to prevent defaults and another housing crisis, is still very much open to interpretation. To that end, Standard & Poor’s Ratings Services recently held a private roundtable with several market participants. The confidential discussion offered the attendees an opportunity to share their views and interpretations of these rules, offer opinions on how to operate efficiently within the scope of the rules, and highlight perceived conflicts the rules still present.

In our view, the discussion identified some common themes, notably:

    • Most originators will focus on QM-Safe Harbor loans to avoid liability and achieve the best execution.
    • Many originators will also find attractive opportunities to originate non-QM loans.
    • Non-agency originations of QM or non-QM loans will continue to focus on super-prime borrowers as lenders find that the best defense is to limit the potential for default.
    • The documentation standards used by originators will be the key to compliance with the rule. (2)

There are a lot of interesting tidbits in this document, including speculation about the role of technology in the brave new world of mortgage lending.  The summary ended on a guardedly optimistic note:

While the rule leaves significant room for interpretation, originators generally felt that the final rule to be implemented in January 2014 is better than expected. They expressed hope that regulators will be vigilant in pursuing violations that are reasonable. Originators still see challenges for originations of non-QM loans, but they don’t believe they are insurmountable, and many expect that non-QM loans will be represented in origination volume throughout 2014. The challenges that remain are the market’s pricing of QM safe harbor, rebuttable presumption, and non-QM loans; required credit enhancement levels; the effects of risk retention rules, which have yet to be finalized; and the ultimate costs associated with the assignee liability provisions in the rule. (7)

If these industry participants are right, it will look like regulators did a pretty good job of balancing consumer protection and access to credit. Let’s hope!

Measuring Progress at the CFPB

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The Bipartisan Policy Center issued a white paper, The Consumer Financial Protection Bureau: Measuring the Progress of a New Agency:

This paper measures the agency’s actions against its mandate.  It analyzes the start-up and operational challenges the Bureau has faced and the critical choices it has made. Throughout this process, the Task Force met with leading consumer advocates, federal and state bank regulators and their staffs, and regulated industry participants in the bank and nonbank space. (5)

I was particularly intrigued by the external metrics that the Bipartisan Policy Center recommends for the CFPB:

  • Are there quality, safe products available in both the bank and nonbank space?
  •  Is the CFPB identifying and responding promptly to problems in both the bank and nonbank space?
  • Does the Bureau engage consumers in a meaningful way? For example, specific metrics should track its regulatory and outreach efforts to growing minority populations.
  • Is the CFPB collaborating effectively with other regulators in both the bank and nonbank space, to ensure a high level of consumer protection?
  • Is there a healthy amount of quality product innovation in the financial services marketplace the Bureau regulates? (10)

These are all reasonable metrics, but most importantly, the white paper “recommends that the CFPB measure success as it relates to consumer behavior by finding demonstrable evidence of improved consumer decision-making with regard to consumer products.” (10) I think that this is perhaps the most important of the metrics and one that the CFPB has made the least progress in measuring. It will be interesting to see how the CFPB makes progress in this regard.

The rest of their findings are organized as follows:

  • Guidance vs. Rule-Making
  • Supervisory and Examination Process
  • Data Requests and Collection
  • Consumer Complaint Portal
  • Civil Penalty Fund
  • CFPB Consultation with Other Agencies
  • CFPB’s Authority to Cover Lending Activities of Auto-Dealers
  • CFPB Funding and Accountability
  • Performance Metrics
  • [External Metrics]
  • Internal Metrics

Qualified Residential Mortgage Comments

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The agencies responsible for the Qualified Residential Mortgage rules that address the issue of credit risk retention for mortgage-backed securities requested that comments on the proposed rulemaking be submitted by yesterday.  And comments there were.  Here is a sampling:

The Urban Institute argues that

In formulating their QRM recommendations, the Agencies have done an admirable job balancing these considerations: on one hand, they wanted QRM loans to have a low default rate; on the other hand, if QRM is too tight, it will impede efforts to bring private capital back into the market and will further restrict credit availability. The right balance would thus appear to be precisely where they have landed with their main proposal: that QRM equal QM. (2)

The Securities Industry and Financial Markets Association effectively agrees with this and argues that

QM should be adopted as the standard for QRM, rather than QM-plus. QM is a meaningful standard for high quality loans. The characteristics of QM-plus, particularly the 70 percent LTV ratio, would exclude most borrowers from these loans. We believe the adoption of QM-plus would reduce the competitiveness of private mortgage originators and delay the transition of the housing finance system away from the GSEs. (vi)

The American Enterprise Institute, on the other hand, argues that

The preferred response, in our opinion, is to implement the Dodd-Frank Act by creating a combination of the QM and a standard for a traditional prime mortgage that Congress intended for the QRM. For this reason, we have filed this comment with the agencies, detailing how it is possible to comply with the clear language and intent of the act and still provide a flexible set of standards for prime mortgages — which have low credit risk even under stress. (4)

My thoughts on the proposed QRM rule can be found here, here, here and here.

Reiss (and Others) on Post-Bloomberg Brooklyn

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The NY Daily News ran a story on a panel I moderated last night at Brooklyn Law School, The Fab Four! Brooklyn Heights Councilmen Since 1975 Share Stage and Talk About Past, Future, Bloomberg.  The speakers gave their thoughts on a variety of topics, including what’s next for New York City:

David Reiss: What are your predictions for a post-Bloomberg Brooklyn?

Levin: The likely mayor is going to be very far to the left. (Bill de Blasio) has been more engaged with people that are not elite and he has a greater vision of equity. It’s a big challenge because it’s a big city, like steering a gigantic ocean liner. I don’t think there will be lots of changes on day one but there will be policy changes that can be shifted that will cause a big change, like universal pre-kindergarten and mandatory inclusionary zoning. His goal is to decrease the economic disparity in the city and it’s a big challenge.

Yassky: A lot of the changes you’ve seen are here to say. There’s a much bigger swatch of Brooklyn that will be professional office workers, people who are working in Manhattan and not in traditional blue collar jobs. That spread throughout Brooklyn is here to stay. So many neighborhoods have excellent public spaces which is ameliorating inequality in the near term. It’s taking better public goods, like parks, to do it, and you don’t need rose colored glasses to see that. These changes don’t reverse very quickly and easily.

Fisher: He’ll be a mayor from Brooklyn, so it’s got to be a good thing for all of us. The nostalgia here is over; Brooklyn is the world again. When I grew up, people were nostalgic for the good old days. No one is nostalgic for those days now. Brooklyn has really reached a turning point. The bar has been raised in post-Bloomberg Brooklyn. So many people in Brooklyn now expect government to function and be responsive. As long as people feel invested in the borough, they’ll make it possible for Steve and whoever comes after to keep the progress going.

Eminent Distraction?

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The Urban Institute posted Eminent Domain:  The Debate Distracts from Pressing Problems. The issue brief concludes

The negative indicators shared by municipalities that have considered the eminent domain solution (e.g., high unemployment, low incomes, high proportions of underwater homeowners, slower HPI recovery, etc.) indicate that their shared problems extend beyond housing. These cities have traditionally suffered from lack of investment, high crime rates, concentrated poverty, and other general barriers to opportunity. These factors contributed to their poor performance during and after the housing crash, and the relief efforts to date, both from lenders and policymakers, have been modest relative to the scale of the problem.

Yet it is unclear that seizing loans through eminent domain will produce the desired outcomes: preventing foreclosures and, thus, ensuring that the community fabric and the municipality’s economy remain intact. For example, Richmond is targeting performing loans in PLS, and while the eminent domain plan is designed to help underwater mortgage holders, investors assert that nearly a third of target loans are above water. In contrast, a much wider universe of nonperforming, underwater loans is in private-label and agency securities that are, arguably, at more immediate risk of default. Additionally, implementing eminent domain will likely have repercussions in the housing finance markets that will lead to higher interest rates and down payments.(14)

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The conclusion then outlines “some less disruptive alternatives.” (14) I am not sure that I agree with all of the conclusions of the report.  For instance, I doubt that there would be higher interest rates and down payments as a result of the use of eminent domain by municipalities.  Lenders have notoriously short memories (for a survey of short lender memories, see This Time Is Different.) But this issue brief is important because it is not looking at the legality of the use of eminent domain — others have done that — but at the practicality of this approach. And it raises serious concerns that will need to be addressed by its proponents.

S&P on Rating Mortgage-Backed Securities Before The Crisis

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S&P has posted The Role of Credit Rating Agencies in The Financial System, remarks by its president at the United Nations. The remarks reflect S&P’s narrative of the events leading up to the Subprime Crisis. This narrative is, unsurprisingly, self-serving but revealing nonetheless.

  • We, like others, did not anticipate the U.S. housing downturn, which led to the financial crisis. But with the exception of our ratings on U.S. mortgage-related securities, our ratings have performed as expected. (3) 

Seems like a perfect example of the exception swallowing the rule . . ..

  • In September of 2008, we were all in the depths of the financial crisis. During that time the vast majority of the securities S&P rated performed as we anticipated, including many structured finance ratings. But the performance of our ratings of certain U.S. residential mortgage-related securities was a major disappointment. Like nearly every other market participant, analyst and interested government entity, we did not anticipate the U.S. housing collapse and its effect on the economy as a whole. (4)

As I have said before, this is self-serving revisionism, when S&P’s own analysts predicted the collapse of many of the mortgage-backed securities that they rated before the Bust.

  • We have taken significant actions to further strengthen our independence from issuer influence. We have long had policies to manage potential conflicts of interest such as a separation of analytic and commercial activities, a ban on analysts from participating in fee negotiations, and de-linking analyst compensation from the volume of securities they rate or the type of ratings they assign. After the crisis, we decided to strengthen analytical independence by rotating the analysts assigned to a particular issuer and enhancing analyst training. (4)

No mention here of the fact that their longstanding policies appeared to have not been up to the task of controlling for conflicts as far as anyone was concerned . . ..

  • For mortgage-related securities, for example, we significantly increased the credit enhancement required to achieve a ‘AAA’ rating and made it more difficult for securities to achieve high ratings. (4)

Thank goodness for that! Time will tell if these new assumptions adequately reflect the risk of default for complex MBS.

Reiss on Buying a Home

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MainStreet.com interviewed me in Guess the Unexpected Best Time to Buy a Home. It reads in part,

Hunting for a new home during the holidays can have many hidden advantages for buyers, despite conventional wisdom.

While there is less inventory to choose from in the fall, house hunting in November and December also means there is less competition with other buyers out there. Sellers might also be willing to strike a better deal for potential home owners.

Home buyers can take advantage of sellers who are eager to sell. The end of the year is a great time to look above your price range and negotiate for a lower price, said Alison Bernstein, president of The Suburban Jungle Realty Group.

“Sellers want to clear inventory before the spring and will be open to price adjustments to make the sale,” she said.

Consumers can find the best prices after Thanksgiving and before the Super Bowl because most home owners do not want to wait until the winter months when the bulk of potential buyers disappear, Bernstein said.

Seeing a home during the winter months shows both the house and the neighborhood in its “true colors,” she said.

Many sellers could also have tax reasons to sell by the end of the year, said David Reiss, a professor at the Brooklyn Law School who teaches a course that covers residential real estate transactions. However, this could prove to be a double-edged sword for buyers.

It might motivate sellers to get a deal done quickly and to compromise easily on price or other terms. On the other hand, sellers may insist on draconian penalties if the buyer fails to close by the end of the year, he said.

“Buyers must tread very carefully in such circumstances, be confident that their lender will come through by the drop dead date and certain that they will not be held liable for the delays caused by others, such as sellers themselves or escrow agents,” Reiss said.