In Lyndon Johnson and the American Dream, Doris Kearns Goodwin (just Doris Kearns in NR’s copy of the book — we’re old-school) has one interesting observation about LBJ: He never got out of the legislative mind-set, and his measure of success when crafting his hallmark programs, from Medicare to the Civil Rights Act of 1964, was simply getting the bill passed. Never mind the contents of the program: Just get something signed into law. Tragically for LBJ, he didn’t have a Nancy Pelosi around to tell us that we had to pass Medicare so we could find out what’s in it.
I get the same feeling for President Obama’s new mortgage settlement: Never mind what it does, or whether it does any good, just get everybody’s signature on the deal.
Here’s what it does not do: It isn’t going to prevent a lot of foreclosures (and may in fact cause some), it isn’t going to assuage the terror in the mortgage markets, and it probably isn’t going to clean up the system that caused some number of homeowners to be foreclosed on without proper documentation.
Like the fiasco that was HAMP, this settlement will encourage homeowners to become delinquent on their loans: There’s $10 billion set aside for principal writedowns for delinquent homeowners, but paid-up borrowers only get $3 billion to encourage the refinancing of underwater mortgages. U.S. homeowners are upside-down to the tune of more than $750 billion, with more than a fifth of homeowners underwater. So, even if you think that the federal government ought to be in the business of trying to micromanage mortgage refis, this is four-tenths of 1 percent, assuming maximum utilization.
Also, those writedowns are going to cover (probably exclusively) mortgages that have been securitized. Guess who owns those? Fannie and Freddie have a pot of them, as well as pension funds, particularly large, government pension funds. So the banks are going to be taking a writedown: The taxpayers are going to be taking a writedown. (Though the markets probably have already discounted those securities by this point, so that point may be moot.)
And one of the biggest problems — the mortgage documentation system — goes largely unaddressed. Basically, the new rules say to fast-and-loose mortgage servicers: “Don’t do that again, and pay $1,500 to $2,000 to everybody you foreclosed on without proper documentation.” Given the complexity of assembling proper documentation and the legal costs involved, $2,000 per offense is a great bargain for the wrongdoers, practically an invitation to keep doing exactly the same thing. Everybody gets worked up about robo-signing, but robo-signing is not the root of the problem, only a symptom of it: The root of the problem is that the underlying system for keeping track of mortgage ownership in an age of securitization and mass default is entirely inadequate to the task. So far as I can tell, the new servicer rules basically say, “Document stuff the right way next time,” but don’t do much to spell out what that looks like and creates incentives not to comply. If the price of fraud is lower than the benefit to be derived from the fraud, then what is the disincentive to fraud?
None of this will stop President Obama from doing a little preening and bragging that he got the banks to cut homeowners a break, even though this deal costs the banks basically nothing and does basically nothing for homeowners.
I am not super-enthusiastic about most kinds of financial regulation, but the basic rule of law requires that you be able to legally document your right to foreclose on a house before you foreclose on it, and the current system does not provide that easily. We’d have been better off taking $27 billion to Google and asking them to design a proper document-management system.
There's a perfectly good way to keep track of mortgage ownership - it's called the "recorded assignment." It's especially good for the borrower, who knows who's entitled to receive his payments - - - which really ought to be more important than it's been in the last 20 years.
Reply to this commentLinkReport AbuseWould that it were so! Between the difficulty of tracing the securitized bundles back to the underlying mortgages and the mass produced "wild" transfers it can be a daunting challenge to establish who is truly the holder of a given note. Not to mention the people who were foreclosed upon AFTER they had done a refi or had even paid off the note. A couple in Florida won a default judgment against a foreclosing bank on a mortgage they had actually paid off early. The bank paid their damages when the local sheriff arrived to padlock the place and seize the office furniture and computers.
Kevin is right about the flawed paper trail. Of course fixing that won't fix the NINJA loans ("no job, no income, no assets") or the rating agency flaws ("Cows could be writing this and we'd rate it") or Dodd-Frank or the Community Reinvestment Act and so on.
But he's spot on as to document problems.
Reply to this commentLinkReport AbusePreventing Foreclosure is not a good thing, It's the housing equivalent of government bailing bankrupt business.
You want the economy to improve? You need the cost of living (house affordability) to rise as much as possible,
Reply to this commentLinkReport AbuseThere's a great addendum to this post at the WSJ:
External Link
As for keeping track of a mortgage, we can do it the old fashioned way: Keep the majority of the mortgage at the lending institution that instituted the loan. Fancy that: There's no such thing as securitized auto loans and personal lines of credit, but to securitize the largest debt obligation held by a lender and a borrower was seen as proof of financial genius. Sometimes, the old ways are better than the new ones.
Reply to this commentLinkReport AbuseIn fact, both auto loans and credit-card debt are securitized.
Reply to this commentLinkReport AbuseIndeed you are correct and I am mistaken, Kevin. That being said, I still stand by my assertion that the asset shouldn't be securitized at all and the loan should stay with the issuer. I understand that there is no going back now that the can has been opened, but maybe a new requirement of at least 75 - 80% of the loan must stay with the issuer can be put into effect. Then again, we have too many regulations now so I don't think we need another.
Reply to this commentLinkReport AbuseIf your goal is to dramatically reduce the availability of mortgage financing and increase mortgage interest rates, you have the perfect plan. If your goal is something else, not so much.
Reply to this commentLinkReport Abuse"If your goal is to dramatically reduce the availability of mortgage financing and increase mortgage interest rates, you have the perfect plan."
Sorry, at the rate we're going this is going to happen regardless of what plan is in place. Besides, I thought the problem with the mortgage crisis dealy thingy was that mortgage financing was too loose and interest rates was too low to begin with.
Reply to this commentLinkReport AbuseEven if the mortgage is securitised there is no reason why the securitisation should not be recorded
Reply to this commentLinkReport AbuseI hear that Clint Eastwood has been hired by 0bama and the banks to do a commercial for this.
Reply to this commentLinkReport AbuseA little off topic, but I tried to refinance my home that I currently rent out. The mortgage is 8 years old and I have never been late on a payment. Since the value has dropped and it is rented out, I have to make sure 25% equity in the home or I can not refinance.
After spending many hours on the phone with numerous lenders, I just gave up. I felt like they would love to help me if I was defaulting, but a paying customer with good credit, that is like gold.
Reply to this commentLinkReport AbuseWhat happened to the requirement that all encumbrances on real property be recorded at the county registrar ? If I wasnt to buy property how do i know whether there are leans or second mortgages on the house?
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