Tag Archives: residential mortgage-backed securities

Housing Finance Abhors A Vacuum

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The Securities Industry and Financial Markets Association (SIFMA) released their comment letter to the Federal Housing Finance Agency’s request for input relating to the role of the Fannie and Freddie guarantee fee (g-fee) in the housing finance market. While clearly reflecting the concerns of SIFMA’s members, the letter provides a thoughtful take on the complexities of the housing finance system. SIFMA writes,

Policymakers should not assume that increases in g-fees alone will lead to a significant increase in PLS issuance. Specific decisions on best execution for a given loan vary depending on the terms of the loan being originated. In some instances, a portfolio purchase may offer best execution, and in other instances the GSEs, private label MBS (PLS) or FHA may be optimal. Taken wholly in isolation, we do agree that increases in guarantee fees should cause originators to look toward other avenues to fund loans – in their portfolios, FHA, or in PLS. However, it is not so simple that an across the board increase in guarantee fees will result in a corresponding uptick in private-label securitization. To the extent GSE securitization becomes more expensive for issuers, PLS are one of a number of options, and not necessarily the most attractive in all instances. Today bank portfolios offer a more attractive funding alternative to the GSEs than PLS for most institutions. Of course, the appetite of banks for loans held in portfolio will vary with economic and regulatory conditions, and cannot always be assumed to comprise a certain percentage of the market.

There are also a number of reasons that increases to g-fees will not directly lead to increased PLS issuances that are not precisely quantifiable or directly related to cost. PLS issuers and investors face uncertainty as to the future shape of the mortgage market and questions related to compliance with the future regulatory regime. The re-regulation of the mortgage and securitization markets is not complete, and a number of consequential rulemakings are incomplete. These include but are not limited to risk retention and proposed revisions to the SEC’s Regulation AB. The final form of the definition of QRM and the rest of the risk retention rules will directly impact the economics of securitization. Regulation AB will impact the offering process, disclosure practices, and require fairly massive infrastructure adaptation at many RMBS issuers and sponsors. Of course, given that final rules are not available for any of these items, issuers and sponsors cannot begin this work. In this environment of uncertainty, it is difficult and indeed may be unwise for issuers or investors to expend resources to develop long-term issuing and investment platforms.

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For these reasons, we do not believe FHFA or other policymakers should look at increases to GSE g-fees in a vacuum, and must consider them within the broader context of mortgage finance conditions. (6-7, footnotes omitted)

SIFMA is right to emphasize the regulatory uncertainty that its members face.  The federal government has not done enough to address this.  Housing finance, like nature, abhors a vacuum.  More on this tomorrow.

 

Consumer Protection in RMBS 3.0

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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.

FHFA Wins on “Actual Knowledge”

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Judge Cote issued an Opinion and Order in Federal Housing Finance Agency v. HSBC North America Holdings Inc., et al. (11-cv-06189 July 25, 2014). The opinion and order granted the FHFA’s motion for partial summary judgment concerning whether Fannie and Freddie knew of the falsity of various representations contained in offering documents for residential mortgage-backed securities (RMBS) issued by the remaining defendants in the case.

I found there to be three notable aspects of this lengthy opinion. First, it provides a detailed exposition of the process by which Fannie and Freddie purchased mortgages from the defendants (who included most of the major Wall Street firms, although many of them have settled out of the case by now). it goes into great length about how loans were underwritten and how originators and aggregators reviewed them as they were evaluated  as potential collateral for RMBS issuances.

Second, it goes into great detail about the discovery battle in a high, high-stakes dispute with very well funded parties. While not of primary interest to readers of this blog, it is amazing to see just how much of a slog discovery can be in a complex matter like this.

Finally, it demonstrates the importance of litigating with common sense in mind. Judge Cote was clearly put off by the inconsistent arguments of the defendants. She writes, with clear frustration,

It bears emphasis that at this late stage — long after the close of fact discovery and as the parties prepare their Pretrial Orders for three of these four cases — Defendants continue to argue both that their representations were true and that underwriting defects, inflated appraisals and borrower fraud were so endemic as to render their representations obviously false to the GSEs. Using the example just given, Goldman Sachs argues both that Fannie Mae knew that the percentage of loans with an LTV ratio below 80% was not 67%, but also that the true figure was, in fact, 67%. (65)

S&P on Risky Reps and Warranties

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Standard & Poor’s posted New Players In The RMBS Market Could Present Unique Representations And Warranties Risks. It opens, S&P

believes that new entrants into the residential mortgage-backed securitization (RMBS) market that make loan-level representations and warranties (R&Ws) may present additional risks not present with more established market players. Many of these new entrants not only lack historical loan performance data, but have not yet established track records for remedying any R&W breaches. This can call into question their ability or willingness to repurchase under R&W provisions. In light of this, mitigating factors may exist that could alleviate the risk of a potential R&W breach. (1)

This all sounds pretty serious, but I am not so sure that it is.

S&P explains its concerns further:

We believe it is important for investors and other market participants to evaluate the quality and depth of various factors that mitigate the risk of R&W breaches occurring in U.S. RMBS transactions, including those that would be remedied by new entities with limited histories and the risk that comes with their willingness or ability to do so. Specifically, we believe the quality and scale of third-party due diligence, the depth of operational reviews, and a transaction’s overall expected losses, are critical for assessing the risk of a breach and if a new entity would be remedying it. We consider all of these aspects in our assessment of the credit characteristics of loans that are securitized in U.S. RMBS deals. (1)

One assumes that every party to every transaction would consider the counterparty risk — the risk that the other side of a deal won’t or can’t make good on its obligations. Regular readers of this blog also know that many well-known companies have attempted to avoid their responsibilities pursuant to reps and warranties clauses. So, when S&P states that “the quality and scale of third-party due diligence, the depth of operational reviews, and a transaction’s overall expected losses, are critical for assessing the risk of a breach and if a new entity would be remedying it,” one wonders why this is more true for new players than it is for existing ones.

Further undercutting itself, this report notes that “post-2008 issuers have been addressing many of these potential R&W risks, including newer players. The level of third-party due diligence in recently issued U.S. RMBS for example has been more comprehensive from a historical (pre-2008) perspective in terms of the number of loans reviewed and the scope of the reviews.” (1)

So I am left wondering what S&P is trying to achieve with this report. Are they really worried about new entrants to the market? Are they signalling that they will take a tough stance on lowering due diligence standards as the market heats up? Are they favoring the big players in the market over the upstarts? I don’t think that this analysis stands up on its own legs, so I am guessing that there is something else going on.  If anyone has a inkling as to what it is, please share it with the rest of us.

S&P: Future of Private-Label RMBS Uncertain

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S&P has posted an Executive Comment, Lifted By Improving Economic Conditions, The U.S. Leads The Global Securitization Rebound–But Headwinds Remain. It concludes,

After surviving its first severe test, the market for securitization is slowly emerging from a sharp downturn, demonstrating its viability to efficiently distribute risk and expand credit availability. In this light, with many regulatory and economic uncertainties still present, we’re forecasting continuing slow growth going into next year.

The question is if, and when, securitization will register large issuance numbers again, contribute to the funding diversity and liquidity positions of banks, and improve the efficient allocation of resources to foster global economic growth.

For the U.S.–far and away the largest and most mature securitization market in the world–it’s clear, given the interconnectivity of the economy, the securitization market, and housing finance, that a continued economic recovery is necessary before the securitization market can fully recover. Economic growth will also encourage regulators, policymakers, and investors to work on the eventual return of private housing finance. But we believe that mortgage financing remains a concern for general credit availability and a continuing housing market recovery. The future of non-agency RMBS will remain in question so long as the GSEs dominate housing finance while enjoying exemptions from the qualified mortgage and risk-retention rules. (7)

I do not think that there is anything particularly new in this analysis, but it does highlight an important issue, one that I have touched on before. The gridlock on housing finance reform in DC has many effects. The GSEs are not on solid footing. The private-label industry does not know what part of the mortgage market it can operate in, whether with Qualified Mortgage (QM) or Non-QM products. And most importantly, homeowners are  not getting credit at a price that a stable and mature market would offer.

The conventional wisdom is that housing finance reform is off the table until after the mid-term elections or even until after the next presidential election. That is bad news for American households, the housing industry and the financial markets. And without some strong leadership in DC, it looks like the conventional will be right.

Optimizing Principal Modifications

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S&P posted How Principal And Interest Rate Modifications Affect U.S. RMBS. Principal modifications — reducing the amount that the homeowner owes on the loan — have not been popular with lenders for obvious reasons. But they have also not been popular with politicians and even with the general populace for reasons that likely derive from variants of moral hazard: it just isn’t fair that some people don’t have to repay their debts. And if we give some people an out, won’t everyone else want one too?

Perhaps the better question to ask is whether principal modifications reduce defaults compared to other steps that lenders have taken with defaulting borrowers. S&P has looked at this question and they found “that even though rate reductions are the most common form of modification, principal reductions offer the most benefit to borrowers looking to avoid default.” (2)

While principal mods are good for borrowers — no big surprise there — their impact on investors is not so clear cut. S&P writes that

When it comes to principal reductions, investors can also have different outcomes based on the deal structure. A write-down in loan principal will cause an immediate reduction in credit enhancement, and bondholders would face greater exposure to collateral losses. But for deals with cumulative loss triggers, senior bondholders can receive extra principal diverted from subordinate classes once the triggers are tripped, thereby accelerating their recovery. . . . [S]tructural provisions and interest and principal payment mechanisms in RMBS transactions influence how loan modifications affect bondholders in RMBS transactions. Any type of modification brings with it nuances that may benefit the borrower while having a varied impact on investors. (5)

As we learn lessons that may apply in the next crisis, it is worth realizing that borrower workouts and investor outcomes are linked in ways that should be explicitly identified so that incentives can be properly aligned. With planning, mortgage-backed securities can be structured to be good for borrowers and investors, perhaps even Pareto optimal.

Non-QM Mortgages Risks and Best Practices

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Moody’s issued a report, Non-QM US RMBS Face Higher Risk of Losses Than QM, but Impact on Transactions Will Vary, that discusses the risk that

US RMBS backed by non-qualified mortgages (those that do not meet a variety of underwriting criteria under new guidelines) will incur higher loss severities on defaulted loans than those backed by qualified mortgages. The key driver of the loss severities will be the higher legal costs and penalties for non-QM securitizations. In non-QM transactions, a defaulted borrower can more easily sue a securitization trust on the grounds that the loan violated the Ability-to-Repay (ATR) rule under the Dodd-Frank Act. . . . The extent of the risks for RMBS will vary, however, depending on the mortgage originators’ practices and documentation, the strength of the transactions’ representations and warranties, and whether the transactions include indemnifications that shield them from borrower lawsuits. (1)

The higher costs for non-QM investors may include longer foreclosure timelines and the resulting wear on the collateral.

If Moody’s analysis is right, however, the Dodd-Frank regime will be working as intended. It should incentivize mortgage originators to strengthen their compliance practices such as those relating to documentation, recordkeeping and third party due diligence. It should also incentivize securitizers to demand strong reps and warranties, put back and indemnification provisions. Sounds like a reasonable trade off to  me.