Redefault Risk After the Mortgage Crisis

 

A tower filled with shredded U.S. currency in the lobby of the Federal Reserve Bank of Philadelphia.

Paul Calem et al. of the Phillie Fed posted Redefault Risk in the Aftermath of the Mortgage Crisis: Why Did Modifications Improve More Than Self-Cures? The abstract reads,

This paper examines the redefault rate of mortgages that were selected for modification during 2008–2011, compared with that of similarly situated self-cured mortgages during the same period. We find that while the performance of both modified and self-cured loans improved dramatically over this period, the decline in the redefault rate for modified loans was substantially larger, and we attribute this difference to a few key factors. First, the repayment terms provided by modifications became increasingly generous, including the more frequent offering of principal reduction, resulting in greater financial relief to borrowers. Second, the later modifications also benefited from improving economic conditions — modification became more effective as unemployment rates declined and home prices recovered. Third, we find that the difference in redefault rate improvement between modified loans and self-cured loans is not fully explained by observable risk and economic variables. We attribute this residual difference to the servicers’ learning process — so-called learning by doing. Early in the mortgage crisis, many servicers had limited experience selecting the best borrowers for modification. As modification activity increased, lenders became more adept at screening borrowers for modification eligibility and in selecting appropriate modification terms.

The big question, of course, is what does this all tell us about preparing for the next crisis? That crisis, no doubt, won’t be a repeat of the last one. But it will likely rhyme with it enough — falling home prices, increasing defaults — that we can draw some lessons. One is that we did not use principal reductions fast enough to make a big difference in how the crisis played out. There were a lot of reason for this, some legit and some not. But if it is good public policy overall, we should set up mechanisms to deploy principal reduction early in the next crisis so that we do not need to navigate all of the arguments about moral hazard while knee deep in it.

Installment Land Contracts:  Uses, Abuses, and Legislative Proposals

Professor Durham

Professor Freyermuth

 

 

 

 

 

 

 

 

 

Professors’ Corner

A FREE monthly webinar featuring a panel of law professors,

addressing topics of interest to practitioners of real estate and trusts/estates

Tuesday, January 9, 2018

12:30 p.m. Eastern/11:30 a.m. Central/9:30 a.m. Pacific 

Installment Land Contracts:  Uses, Abuses, and Legislative Proposals 

Speakers:

  • Professor Jim Durham, University of Dayton
  • Professor Wilson Freyermuth, University of Missouri

Moderator:

  • Professor Chris Odinet, Southern University Law Center and Visiting Professor, University of Iowa

In the wake of the mortgage crisis, several jurisdictions have seen a resurgence in the use of the installment land contract as a financing device. Use of the installment contract creates a number of risks, particularly in jurisdictions where existing precedent and/or statutory provisions do not clearly articulate the appropriate procedures for the vendor’s enforcement of contract following the vendee’s default. Some investors have sought to capitalize on this lack of clarity, effectively using installment contracts as the equivalent of “rent-to-own” contracts that provide for landlord-like default remedies while disclaiming any responsibility for the habitability of the property.

Professors Durham and Freyermuth will discuss the existing legal background governing the characterization and enforcement of installment land contracts and the wide variety of approaches taken by various states. They will also discuss the provisions and the merits of recent legislative proposals designed to regulate some of the more abusive uses of the installment land contract device.

Register for this FREE webinar program at http://ambar.org/ProfessorsCorner.

Sponsored by the ABA Real Property, Trust and Estate Law Section Legal Education and Uniform Laws Group

 

Understanding The Ability To Repay Rule

photo by http://401kcalculator.org

The Spring 2017 edition of the Consumer Financial Bureau’s Supervisory Highlights contains “Observations and approach to compliance with the Ability to Repay (ATR) rule requirements. The ability to repay rule is intended to keep lenders from making and borrowers from taking on unsustainable mortgages, mortgages with payments that borrowers cannot reliably make.  By way of background,

Prior to the mortgage crisis, some creditors offered consumers mortgages without considering the consumer’s ability to repay the loan, at times engaging in the loose underwriting practice of failing to verify the consumer’s debts or income. The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) amended the Truth in Lending Act (TILA) to provide that no creditor may make a residential mortgage loan unless the creditor makes a reasonable and good faith determination based on verified and documented information that, at the time the loan is consummated, the consumer has a reasonable ability to repay the loan according to its terms, as well as all applicable taxes, insurance (including mortgage guarantee insurance), and assessments. The Dodd-Frank Act also amended TILA by creating a presumption of compliance with these ability-to-repay (ATR) requirements for creditors originating a specific category of loans called “qualified mortgage” (QM) loans. (3-4, footnotes omitted)

Fundamentally, the Bureau seeks to determine “whether a creditor’s ATR determination is reasonable and in good faith by reviewing relevant lending policies and procedures and a sample of loan files and assessing the facts and circumstances of each extension of credit in the sample.” (4)

The ability to repay analysis does not focus solely on income, it also looks at assets that are available to repay the mortgage:

a creditor may base its determination of ability to repay on current or reasonably expected income from employment or other sources, assets other than the dwelling (and any attached real property) that secures the covered transaction, or both. The income and/or assets relied upon must be verified. In situations where a creditor makes an ATR determination that relies on assets and not income, CFPB examiners would evaluate whether the creditor reasonably and in good faith determined that the consumer’s verified assets suffice to establish the consumer’s ability to repay the loan according to its terms, in light of the creditor’s consideration of other required ATR factors, including: the consumer’s mortgage payment(s) on the covered transaction, monthly payments on any simultaneous loan that the creditor knows or has reason to know will be made, monthly mortgage-related obligations, other monthly debt obligations, alimony and child support, monthly DTI ratio or residual income, and credit history. In considering these factors, a creditor relying on assets and not income could, for example, assume income is zero and properly determine that no income is necessary to make a reasonable determination of the consumer’s ability to repay the loan in light of the consumer’s verified assets. (6-7)

That being said, the Bureau reiterates that “a down payment cannot be treated as an asset for purposes of considering the consumer’s income or assets under the ATR rule.” (7)

The ability to repay rule protects lenders and borrowers from themselves. While some argue that this is paternalistic, we do not need to go much farther back than the early 2000s to find an era where so-called “equity-based” lending pushed many people on fixed incomes into default and foreclosure.

Wednesday’s Academic Roundup

Wednesday’s Academic Roundup

Strip-Downs Are Good

The Philadelphia Fed has posted a Working Paper, Using Bankruptcy to Reduce Foreclosures: Does Strip-Down Of Mortgages Affect The Supply of Mortgage Credit? The paper’s abstract reads,

We assess the credit market impact of mortgage “strip-down” — reducing the principal of underwater residential mortgages to the current market value of the property for homeowners in Chapter 7 or Chapter 13 bankruptcy. Strip-down of mortgages in bankruptcy was proposed as a means of reducing foreclosures during the recent mortgage crisis but was blocked by lenders. Our goal is to determine whether allowing bankruptcy judges to modify mortgages would have a large adverse impact on new mortgage applicants. Our identification is provided by a series of U.S. Court of Appeals decisions during the late 1980s and early 1990s that introduced mortgage strip-down under both bankruptcy chapters in parts of the U.S., followed by two Supreme Court rulings that abolished it throughout the U.S. We find that the Supreme Court decision to abolish mortgage strip-down under Chapter 13 led to a reduction of 3% in mortgage interest rates and an increase of 1% in mortgage approval rates, while the Supreme Court decision to abolish strip-down under Chapter 7 led to a reduction of 2% in approval rates and no change in interest rates. We also find that markets react less to circuit court decisions than to Supreme Court decisions. Overall, our results suggest that lenders respond to forced renegotiation of contracts in bankruptcy, but their responses are small and not always in the predicted direction. The lack of systematic patterns evident in our results suggests that introducing mortgage strip-down under either bankruptcy chapter would not have strong adverse effects on mortgage loan terms and could be a useful new policy tool to reduce foreclosures when future housing bubbles burst.
This paper seems to cut through some of the hyperbole that surrounds this topic. Its concluding paragraphs indicate how a modest introduction of strip-downs would have only a modest impact on the availability of mortgage credit. It contrasts such a modest step with more far-reaching proposals, such as using eminent domain to take underwater mortgages throughout an entire jurisdiction. The paper seems to argue that the more modest proposal could be acceptable to the lending industry. I am not so sure that that is true, particularly in the current political environment. But it is certainly true that strip-downs could be a useful tool to have when “future housing bubbles burst,” as they most certainly will.

Reiss on the Ethics of Subprime Lending

Fordham Law School is sponsoring an event on The Mortgage Crisis – Five Years Later on June 3rd.  I will be speaking about the ethics of subprime lending on the second panel.  The speakers are

 

Panel 1: The Mortgage Crisis: It Ain’t Over ‘Til It’s Over (1 CLE Credit)

Elizabeth M. Lynch, MFY Legal Services

Adam Cohen, NY State Attorney General’s Office

Edward Kramer, Wolters Kluwers

Harvey Levine, Served on OCC/FRB Independent Foreclosure Review

Jessica Yang, Policy Director, NYU Furman Center

Panel 2: The Ethics of Sub-Prime Lending (1 CLE Ethics Credit)

Bruce Green, Louis Stein Professor, Director (Stein Center), Fordham Law School

Aditi Bagchi, Associate Professor of Law, Fordham Law School

Josh Zinner, Co-Director, NEDAP

David Reiss, Brooklyn Law School

 

Interview with 2013 Friend of the Consumer Honoree

Gretchen Morgenson, Assistant Business and Financial Editor and Columnist, NY Times