Tag Archives: homeowners

Dodd-Frank Repeal Unappealing for Homeowners

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photo by Gage Skidmore

Congressman Jeb Hensarling

The Hill published my latest column, Why Repealing Dodd-Frank Is Unappealing if You Own a Home. It opens, 

President Trump has made it clear that he wished to dismantle the Dodd-Frank Wall Street Reform and Consumer Protection Act. Just two weeks after his inauguration, he issued an executive order to get the ball rolling by means of agency action, an effort that will be led by the Department of the Treasury. Trump will have lots of allies in Congress as he pursues this agenda. A recent memo by House Financial Services Chairman Jeb Hensarling (R-Texas) to his committee’s leadership team outlines a legislative path that leads to much the same goal.

One of the key components of the Dodd-Frank regulatory regime was the newly-created Consumer Financial Protection Bureau (CFPB). The bureau is responsible for administering a range of consumer protection regulations, some of which predate Dodd-Frank and some of which were mandated by it. Homeowners should sit up and take notice because a lot of protections they can now take for granted will be stripped away if this push is successful.

Many of these regulations protect homeowners as they obtain mortgages for their homes. Others protect homeowners over the life of the mortgages, particularly when they are having trouble keeping up with their mortgage payments because of those common life events that still knock us for a loop when they happen to us: job loss, divorce, medical bills, a death in the family.

Hensarling’s memo makes clear the extent to which he wants to weaken the CFPB. Among many other things, he wants to eliminate the bureau’s consumer education functions, bar it from commencing actions involving unfair, deceptive or abusive acts and practices, end its practice of tracking consumer complaints, and stop if from monitoring and conducting research on the consumer credit market.

Before the financial crisis, homeowners suffered from a range of abusive and predatory behaviors that were prevalent in the mortgage industry for years and years. Lenders would lend without regard to a borrower’s ability to repay a loan, so long as there was sufficient equity in the home to make the lender whole after a foreclosure. Dodd-Frank’s ability-to-repay rule keeps lenders from doing that now. Lenders would make loans that had large balloon payments at the end of the term, forcing unsophisticated borrowers to refinance with all of the fees and costs that that entails. The lenders would look at those refinancing costs as another profit center. Dodd-Frank’s qualified mortgage rule banned those abusive balloon payments for the most part.

While Hensarling claims that Dodd-Frank “clogs the arteries of capitalism,” he seems to forget that unfettered capitalism nearly gave us a fatal heart attack just 10 years ago, when the subprime mortgage crisis led us to the brink of a second Great Depression. He seems to forget that predatory mortgage lending is not only bad for the individuals affected by it, but also for the housing market and economy in general. Housing prices did not just fall for those with unsustainable mortgages—they fell for all of us.

The push to get rid of the CFPB is not being driven by the consumer finance industry. The industry has learned to live with the bureau. It has come to see that there are some benefits that accrue from primarily dealing with one regulator, in place of the patchwork of regulators that was the norm before Dodd-Frank. Rather, the push is being driven by an unfettered free market ideology that is out of step with the workings of the modern economy.

Getting rid of the CFPB will be bad for homeowners. They will no longer be able to assume that a mortgage they receive is one that has payments they can make month-in and month-out. They will need to treat lenders as predators because predatory lending will certainly return to the mortgage market. Caveat emptor.

Housing Booms and Busts

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photo by Alex Brogan

Patricia McCoy and Susan Wachter have posted Why Cyclicality Matter to Access to Mortgage Credit to SSRN. The paper is now particularly relevant because of President Trump’s plan to roll back Dodd-Frank’s regulation of the financial markets, including the mortgage market. While McCoy and Wachter do not claim that Dodd-Frank solves the problem of cyclicality in the mortgage market, they do highlight how it reduces some of the worst excesses in that market. They make a persuasive case that more work needs to be done to reduce mortgage market cyclicality.

The abstract reads,

Virtually no attention has been paid to the problem of cyclicality in debates over access to mortgage credit, despite its importance as a driver of tight credit. Housing markets are prone to booms accompanied by bubbles in mortgage credit in which lenders cut underwriting standards, leading to elevated loan defaults. During downturns, these cycles artificially impede access to mortgage credit for underserved communities. During upswings, these cycles make homeownership unnecessarily precarious for many who attain it. This volatility exacerbates wealth and income disparities by ethnicity and race.

The boom-bust cycle must be addressed in order to assure healthy and sustainable access to credit for creditworthy borrowers. While the inherent cyclicality of the housing finance market cannot be fully eliminated, it can be mitigated to some extent. Mitigation is possible because housing market cycles are financed by and fueled by debt. Policymakers have begun to develop a suite of countercyclical tools to help iron out the peaks and troughs of the residential mortgage market. In this article, we discuss why access to credit is intrinsically linked to cyclicality and canvass possible techniques to modulate the extremes in those cycles.

McCoy and Wachter’s conclusions are worth heeding:

If homeownership is to attain solid footing, mitigating the cyclicality in the housing finance system will be imperative. That will require rooting out procyclical practices and requirements that fuel booms and busts. In their place, countercyclical measures must be instituted to modulate the highs and lows in the lending cycle. In the process, the goal is not to maximize homeownership per se; rather, it is to ensure that residential mortgages are made on safe and affordable terms.

*     *     *

Taming procyclicality in industry practices in housing finance is much farther behind and will require significantly more work. There is no easy fix for the procyclical effect of mortgage appraisals because appraisals are based on neighboring comparables. Similarly, procyclicality will require serious attention if the private-label securitization market returns. While the Dodd-Frank Act made modest reforms designed at curbing inflation of credit ratings, the issuer-pays system that drives grade inflation remains in place. Similarly, underpricing the risk of MBS and CDS will continue to be a problem in the absence of an effective short-selling mechanism and the effective identification of market-wide leverage. (34-35)

McCoy and Wachter offer a thoughtful overview of the risks that mortgage market cyclicality poses, but I am not optimistic that it will get a hearing in today’s Washington.  Maybe it will after the next bust.

Mnuchin, When No One Is Watching

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Alexander Hamilton

My latest column for The Hill is Hamilton Acted in Good Faith. Will Steven Mnuchin Do The Same? It reads:

UCLA’s legendary basketball coach John Wooden famously said, “The true test of a man’s character is what he does when no one is watching.”

Steven Mnuchin, another leading citizen of Los Angeles, is now in the spotlight as President-elect Donald Trump’s nominee to lead the U.S. Department of the Treasury.

Running the Treasury Department requires financial know-how, which this former Goldman Sachs banker has in spades. But it also requires character, as a large part of the Treasury secretary’s job is to embody the good faith that the American people want the rest of the world to have in us.

In Alexander Hamilton’s Report Relative to a Provision for the Support of Public Credit, written just after he became the first U.S. Treasury secretary, he notes that the government must maintain public credit “by good faith, by a punctual performance of contracts. States, like individuals, who observe their engagements, are respected and trusted, while the reverse is the fate of those, who pursue an opposite conduct.”

OneWest’s actions during Mnuchin’s tenure as chief executive officer raise questions about whether Mnuchin has demonstrated the character necessary to be a worthy successor to Hamilton.

A recently disclosed memo by lawyers at California’s Office of the Attorney General documents a pattern of bad faith toward homeowners with OneWest mortgages. The memo documents evidence of widespread wrongdoing that helped the bank and hurt the homeowners. The evidence includes the backdating of notarized and recorded documents in 99.6 percent of the examined mortgage files and unlawful credit bids and substitutions of trustees in 16.0 percent of those files.

These are not merely technical violations. They shortened the time that homeowners had to get their mortgages back in good standing and they violated a number of procedural protections for homeowners facing non-judicial foreclosures.

Non-judicial foreclosures give lenders the ability to bypass the courts so long as they strictly abide by the procedural protections set forth by statute. Non-judicial foreclosures can only maintain their legitimacy if lenders respect those procedural protections. This is because there is no judge to make sure that the procedural protections are being adhered to. Without them, a homeowner can be no more than a sheep being led to the financial slaughterhouse of an improper foreclosure.

Some bankers have argued that focusing on violations of mortgage terms is overly legalistic, and beside the point given the widespread defaults during the financial crisis. It isn’t. The violations documented in the memo benefited the bank and harmed homeowners by allowing foreclosures to occur faster than they would if the formalities were followed.

They also allowed the bank to avoid paying various taxes relating to the sale of foreclosed properties. Some of the violations documented in the memo can result in felony convictions, which shows just how seriously California views the procedural requirements relating to non-judicial foreclosures. Ultimately, California’s then-Attorney General (and now U.S. Senator) Kamala Harris, chose not to file this complex lawsuit, but the memo’s findings are disturbing nonetheless.

As Hamilton knew, acting in good faith, performing agreements as they are written and keeping promises lead to respect and trust, “while the reverse is the fate of those, who pursue an opposite conduct.” The American people deserve a leader at Treasury with those traits, one who cherishes the rule of law as the basis of a both a healthy market economy and a well-functioning democratic government.

Other nations expect that we meet this standard, too. If they see us as just another bully on the world stage, we will lose our ability to lead by example. Members of the Senate Finance Committee should ask Mnuchin whether his actions at OneWest met the standard set forth by Hamilton.

We won’t be in the rooms where important decisions happen, so we need to have confidence in how Mnuchin will act when he thinks that no one is watching.

Fannie/Freddie Scorecard

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The Federal Housing Finance Agency released its 2017 Scorecard for Fannie Mae, Freddie Mac, and Common Securitization Solutions.  The scorecard highlights how the FHFA’s reform of Fannie Mae and Freddie Mac is proceeding apace, absent direction from Congress.  This reform path had been set by Acting Director DeMarco, appointed by President Bush, and has continued relatively unchanged under Director Watt, appointed by President Obama.

The scorecard’s assessment criteria for the two companies are,

  • The extent to which each Enterprise conducts initiatives in a safe and sound manner consistent with FHFA’s expectations for all activities;
  • The extent to which the outcomes of their activities support a competitive and resilient secondary mortgage market to support homeowners and renters;
  • The extent to which each Enterprise conducts initiatives with consideration for diversity and inclusion consistent with FHFA’s expectations for all activities;
  • Cooperation and collaboration with FHFA, each other, the industry, and other stakeholders; and
  • The quality, thoroughness, creativity, effectiveness, and timeliness of their work products. (2)

The scorecard states that Fannie and Freddie should increase credit risk transfers to investors.  Currently, the focus is on transferring risk from pretty safe and standard mortgages, but the FHFA is pushing Fannie and Freddie to increase risk transfers on a broader array of mortgage types.

The scorecard also states that the effort to integrate Fannie and Freddie through the Common Securitization Platform and the Single Security should continue so that the Single Security is operational in 2018.  The scorecard emphasizes that the Platform should allow “for the integration of additional market participants in the future.” (6)  While this has been a design requirement from the get-go, I have heard through the grapevine that this element of the Platform has not been pursued so vigorously.  To my mind, it seems like a key component if we want to build the infrastructure for a healthy secondary mortgage market for the rest of the 21st century.

 

Trump and The Housing Market

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President-Elect Trump

TheStreet.com quoted me in 5 Ways the Trump Administration Could Impact the 2017 U.S. Housing Market. It opens,

Yes, President-elect Donald Trump may have chosen Ben Carson to lead the Department of Housing and Urban Development, but as the U.S. housing market revs its engines as 2016 draws to a close, an army of homeowners, real estate professionals and economists are focused on cheering on a potentially rosy market in 2017.

And with good reason.

According to the S&P CoreLogic Case-Shiller Indices released on November 29, U.S. housing prices rose, on average, by 5.5% from September, 2015 to September, 2016. Some U.S. regions showed double-digit growth for the time period – Seattle, saw an 11.0% year-over-year price increase, followed by Portland, Ore. with 10.9% and Denver with an 8.7% increase, according to the index.

The data point to further growth next year, experts say.

“The new peak set by the S&P Case-Shiller CoreLogic National Index will be seen as marking a shift from the housing recovery to the hoped-for start of a new advance,” notes David M. Blitzer, chairman of the index committee at S&P Dow Jones Indices. “While seven of the 20 cities previously reached new post-recession peaks, those that experienced the biggest booms — Miami, Tampa, Phoenix and Las Vegas — remain well below their all-time highs. Other housing indicators are also giving positive signals: sales of existing and new homes are rising and housing starts at an annual rate of 1.3 million units are at a post-recession peak.”

But there are question marks heading into the new year for the housing market. The surprise election of Donald Trump as president has industry professionals openly wondering how a new Washington regime will impact the real estate sector, one way or another.

For instance, Dave Norris, chief revenue officer of loanDepot, a retail mortgage lender located in Orange County, Calif., says dismantling the Consumer Financial Protection Bureau, encouraging higher interest rates, and broadening consumer credit are potential scenario shifters for the housing market in the early stages of a Trump presidency.

Other experts contacted by TheStreet agree with Norris and say change is coming to the housing market, and it may be more radical than expected. To illustrate that point, here are five key takeaways from market experts on how a Trump presidency will shape the 2017 U.S. real estate sector.

Expect higher interest rates – The new administration will likely lead to higher interest rates, which will compress home and investment property values, says Allen Shayanfekr, chief executive officer of Sharestates, an online crowd-funding platform for real estate financing. “Specifically, loans are calculated through debt service coverage ratios and a borrower’s ability to make their payments,” Shayanfekr says. “Higher interest rates mean larger monthly payments and in turn, lower loan amount qualifications. If lenders tighten up, it will restrict the buyer market, causing either a plateau in market values or possibility a decrease depending on the margin of increased rates.”

Housing reform will also impact home purchase costs – Trump’s effect on interest rates will likely depress housing prices in some ways, says David Reiss, professor of law at Brooklyn Law School. “That’s because the higher the monthly cost of a mortgage, the lower the price that the seller can get,” he notes. Reiss cites housing reform as a good example. “Housing finance reform will increase interest rates,” he says. “Republicans have made it very clear that they want to reduce the role of the federal government in the housing market in order to reduce the likelihood that taxpayers will be on the hook for another bailout. If they succeed, this will likely raise interest rates because the federal government’s involvement in the mortgage market tends to push interest rates down.”

Expectations for Carson at HUD

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Dr. Ben Carson

The Christian Science Monitor quoted me in What Could US Cities Expect From Ben Carson as HUD Secretary?

Ben Carson, a former neurosurgeon and erstwhile rival of Donald Trump, was nominated Monday by the president-elect to lead the Department of Housing and Urban Development (HUD).

If confirmed by the Senate to be secretary of HUD, Carson would oversee a department dedicated to developing and enacting policies on housing, focusing on building community in lower-income neighborhoods, providing financial assistance for homeowners, and preventing racial discrimination in local housing policies.

Reactions to the nomination have fallen largely along party lines, with many Democrats criticizing Carson’s lack of experience, having never held public office before – inexperience that also makes it hard to predict his potential priorities in a Trump administration. But he has been a frequent critic of social welfare programs, saying that church- and community-based initiatives are a better vehicle than government programs for assisting Americans in poverty.

“I am thrilled to nominate Dr. Ben Carson as our next secretary of the US Department of Housing and Urban Development,” Trump said in a statement released by his transition team. “Ben Carson has a brilliant mind and is passionate about strengthening communities and families within those communities. We have talked at length about my urban renewal agenda and our message of economic revival, very much including our inner cities.”

Trump and Carson had discussed the job before Thanksgiving, but Carson initially expressed reluctance to take a position on the cabinet, despite his campaign for the US presidency, because of his lack of experience in a political office. Since then, Carson has evidently overcome those reservations.

“I feel that I can make a significant contribution particularly by strengthening communities that are most in need,” Carson said in the statement.

Carson is the first African-American pick for Trump’s cabinet, and would likely be confirmed by the Republican-controlled Senate.

Carson’s communication skills give him “the ability to bring the message of poverty alleviation to people nationwide and I hope he would quickly learn the importance of HUD and would try to make it better, stronger, more efficient” Robert C. Moss, the national director of government affairs at CohnReznick, a public accounting firm, tells The Christian Science Monitor in an email.

“Carson is a very skilled speaker, maybe one of the best we’ll see in this role,” writes Mr. Moss, who specializes in affordable housing, “and if he hits on the right direction and takes the message around the country, he could help make the case for affordable housing.”

Trump’s campaign did not focus much on housing or urban development, other than to describe the state of poor “inner city” African-Americans and Hispanics as “disastrous” on multiple occasions. Many critics of Carson say that the former Republican presidential candidate ran on a platform of shrinking the role of government agencies like HUD, putting him at philosophical odds with the very department he will be in charge of.

HUD was created in 1965 in order to build stronger communities and create affordable housing for Americans with low incomes. The department was given the responsibility of enforcing the Fair Housing Act of 1968, which outlawed most forms of housing discrimination, including racial, religious, or based on family status.

African-Americans, in particular, have experienced decades of housing discrimination, says Professor Reiss.

“Redlining, the practice of refusing to provide credit in minority communities, was implemented on a national scale since the beginning of the New Deal, by government agencies like the Federal Housing Administration,” he says. “Such policies continued on for decades. These policies led, in part, to the disinvestment in cities through the 1960s that impacted African-American communities most of all.”

But some of the HUD’s recent rules have come under criticism for “social engineering.” One particular policy Carson has publicly opposed is the Affirmatively Furthering Fair Housing (AFFH) rule adopted by the Obama administration, which requires cities to monitor and report on any housing patterns of racial bias, in an effort to promote less segregated neighborhoods.

“The purpose of the AFFH rule is to reduce segregation which had been caused in part by the federal government’s own actions,” David Reiss, the academic program director for the Center for Urban Business Entrepreneurship
 at Brooklyn Law School, tells the Monitor in an email. The secretary of HUD “can signal that fair housing allegations and violations will be taken seriously or not. If Carson is confirmed, it will send a strong signal that local governments do not need to worry about the Affirmatively Furthering Fair Housing rule for the foreseeable future.”

Mnuchin and Housing Finance Reform

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Sabri Ben-Achour of Marketplace interviewed me in Choice of Mnuchin Troubles Housing Activists. (The audio is available at the link at the top of the linked page.)  The summary of the story reads as follows:

Donald Trump has tapped financier, Hollywood producer and hedge fund manager Steven Mnuchin as Treasury Secretary. In that role, Mnuchin would have quite a lot to say about housing, finance and policies related to mortgage lending. Mnuchin has been involved in lending before, and it didn’t go well for many homeowners.

At issue specifically is his an investment in a failing mortgage lender in 2009 called IndyMac in California. Mnuchin and other investors renamed it OneWest, and it proceeded to foreclose on tens of thousands of homes nationwide. Critics say the company could have kept some portion of those people in their homes.

The story reads in part,

“I think the really big place where the Treasury Secretary can have an impact is on housing finance reform and, really, what we should do with Fannie and Freddie.”  David Reiss is a Professor of Law at Brooklyn Law School.