FedUpUSA

Archive for the ‘mortgage defaults’ Category

Here’s the banks’ counterproposal for a servicing fraud settlement. I can sum it up in two words: drop dead.  Or two letters:  F.U. This proposals is so pathetically thin that it’s not a good faith counterproposal. This document only deals with servicing standards–nothing in it whatsoever about penalties, modification quotas, etc. But even on servicing standards it is a bunch of empty promises to have internal controls and try harder. 

The first point about this counterproposal is simply to note what’s absent from it:

(1) nothing about principal reductions

(2) nothing about second liens and conflicts of interest

(3) nothing about MERS (reserved for later)

(4) nothing about in-sourced vendor fees or force-placed insurance to affiliates. This makes the fees and force-place insurance sections pretty meaningless. 

(5) nothing about pyramiding of fees.

I’m sure I’m missing a bunch of important points that aren’t addressed, but these seemed to be the most obvious ones. 

Next, it’s worth noting just how little it actually promises and how cagey the promises are.  For many points it does not promise results.  Instead, it promises “processes reasonably designed” or “procedures reasonably designed” to do something or another. Basically a lot of it boils down to promises to implement internal controls, reviews, and procedures to make sure things don’t happen again.

Put differently, this is the servicers’ saying “trust us.” Ummm, that’s the whole problem. No one trusts the servicers–not investors, not homeowners. 

Let’s look at some specific terms.  Orwell couldn’t have drafted these any better:

(1) Loan Modifications.  What do the banks propose to do in the section entitled “loan modifications”?  Principal reductions? Interest rate reductions? Forbearance? Nah.  None of that stuff.  Instead they says no fees for modifications and we’ll toss in a free overnight envelope. So the counterproposal to principal reduction mods is a free Fed-Ex mailer. 

(2) “Independent Review.”  Part of the document has a heading of “independent review.” One might have thought that was from a disinterested outside reviewer. Nope. It just means that there is an internal review by another reporting chain within the bank. This is a worthless promise. 

(3) Single point of contact. 

Servicer will provide a single point of contact (“SPOC”), which may be more than one person, to any first lien, owner occupied, borrower suffering a hardship through the loss mitigation processes…

Wait a sec.  What the hell is single-point of contact if it can be multiple people? A single phone number? A 1-800 number plus a loan ID accomplishes that. I get that SPOC is hard to do, but this sort of empty promise is insulting. It’s already the situation. Also notice how this is contingent on the “borrower suffering a hardship through the loss mitigation processes”–what does that mean?  Is that all borrowers or just ones with some unspecified special circumstances in the bank’s discretion? 

(4) End of Dual Track Process.  A major complaint has been that banks simultaneously proceed with foreclosure while negotiating loan mods.  So what do the banks propose to do about that here? They are offering that a loan will not be ”referred” to foreclosure if (a) all documentation necessary for a mod review is submitted and (b) a mod decision has not been made.  That’s a really small concession. Notice what it doesn’t cover.  It doesn’t mean that foreclosures in process will be halted, only that the process won’t be started.  There’s also the question of whether the referral will have magically “happened” before the documentation is received.  Oh wait, that document is an certified original, not an original certified copy, so your documentation isn’t complete. Sorry….

(5) Borrower portal for electronic document submission.  I actually like this idea and had this is something that the Congressional Oversight Panel had suggested in a foreclosure report. But there’s absolutely nothing that prevents servicers from doing this right now. This is hardly some big concession.  In fact, they’ve had just such a portal sitting in the garage for months via Hope Now. 

(6) Forgiveness of short sale deficiencies.  The banks are promising to try to forgive deficiencies associated with short sales. Uh, isn’t that what a short sale is–the bank agrees to take the sale price in satisfaction of the debt? So what does is actually being promised here? 

(7) Affidavits. The banks are promising that affidavits will be sworn out by affiants with knowledge of the facts and in compliance with applicable state law, etc. In other words, that they’ll comply with the law. Note how that differs from the AG proposal, which would have required various affidavits not only when required by law (as in judicial foreclosures), but also in nonjudicial foreclosures. A lto of commentators wrongly criticized the AG proposal for simply requiring compliance with the law without recognizing that it was expanding the affidavit requirement. The AGs were requiring something more; the banks are just saying that they’ll follow the law. Once again, “trust us.” 

(8) Chain of Title. I’ve saved my favorite for last. Here’s what the proposal says:

Servicer shall implement processes reasonably designed to ensure that Servicer has properly documented an enforceable interest in the promissory note and mortgage (or deed of trust) under applicable state law, or is otherwise a proper party to the foreclosure action (as a result of agency or other similar status), including appropriate transfer and delivery of endorsed notes (which may be endorsed in blank) and assigned moretgages or deeds of trust at the formation of a residential mortgage-backed security, and lawful endorsement and assignment of the note and mortgage or deed of trust to reflect changes of ownership, all in accordance with applicable state law.

My initial read was, wow, they’re saying that their going to make sure that chain of title is proper. But then I started to wonder about this. So it would require a process to document an enforceable interest. What does that mean? Does it mean that the servicer will provide the court with a statement of chain of title? That’s not what’s required, here, though. This seems to be an internal control process. 

Then I read further. This would seem to giving a blessing to endorsement of notes in blank. As a generic matter, as I’ve said before, that’s fine. But if the PSA calls for something different, that’s a problem. So it looks as if the servicers are trying to use the settlement as a way to change the legal requirements regarding the transfers of mortgages. Neither the Feds nor the AGs have the power to grant that, however. 

There is this interesting language about “appropriate transfer and delivery of endorsed notes and assigned mortgages…at the formation of a residential mortgage-backed security.”  Is that a concession that transfers that occur after the closing date are invalid? I can’t imagine so, so I’m puzzled by this.

And then there’s the “all in accordance with applicable state law.” I might be seeing a problem where there isn’t one, but I worry that this is an attempt to change the applicable law in foreclosure litigation. The “applicable state law” phrase is used twice in this paragraph. First it is used in reference to the promissory note and mortgage. That would be the state law of the state where the property is located. But the state law governing the “appropriate transfer and delivery” of the notes and mortgages is not the state law of the property situs. It’s the state law of the state governing the PSA (most likely New York). The way this paragraph is phrased, however, one would think that “applicable state law” would refer to the same state both times its used, and by using it first in reference to the situs state for the property, it would prime a reader to think that the situs law governs the transfers. 

There are lots of other points to criticize with this counterproposal, but it’s hardly worthwhile doing so–it’s such an obvious in-your-face document that it’s really not worthwhile engaging with serious. This isn’t the basis for a good faith discussion of mortgage servicing reform. It’s simply another part of the banks’ strategy to run the clock and thereby avoid doing principal reductions–that’s what will cost them the big bucks, not a $20B fine.

Adam Levitin – CreditSlips

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Adam, this is a great analysis of what the banks have counter-offered to the 50 State Attorneys General; however, I wish you would have realized this was what would happen when the offer extended by the AG’s in the first place had absolutely no substance.  If you deal from a position of weakness, you will get hammered.

American leadership is reliable in one respect: it consistently undershoots my already low expectations.

Or maybe I have it backwards because I keep forgetting who the authorities are really serving, and it clearly isn’t you and me. As we will discuss below, the latest scam is that the banking regulators are finalizing a mortgage “breakdown” settlement, and they’ve evidently decided to let the industry off the hook for a mere $20 billion.

In Saudi Arabia, the royal family has just offered $36 billion worth of concessions in an effort to placate an increasingly unruly public (this appears to be in addition to pledges to spend $400 billion on education, health care, and infrastructure by 2014). This is in a country with a population just under 26 million, including over 5 million non-nationals who presumably aren’t eligible.

Now you can easily pooh pooh this comparison, since Saudi Arabia is an autocratic country desperately throwing around money to buy off dissidents, right? But this is the kind of money a leadership group will shell out when pressed to defend an existing order. And the US was very quick to hand out funds right, left, and center during the financial crisis. It’s continuing to do so now in less obvious ways, by continued life support for the mortgage market through Fannie and Freddie, the Fed’s super low interest rates and QE2, and non-monetary measures, most important its refusal to make any sort of serious investigation into what happened in the crisis and prosecute key actors.

Most observers, yours truly included, had expected very little from the multi-regulator “foreclosure task force” announced last year. It was clearly designed to be an even more cosmetic exercise than the stress test charade, which does take a certain amount of brazenness (or more likely, confidence in the public’s inability to follow the three card monte). But a bad situation devolved; the Treasury had appeared to be in charge, and that department at least tries to put a minimum level of professional spit and polish into its charades. When OCC acting chair and chief bank enabler John Walsh got up to speak in an official capacity about the process in last week’s Senate Banking Committee hearings, it was evident there was not even going to be an effort to pretend that this was a serious undertaking.

Even so, the mortgage “settlement” trial balloon floated in the Wall Street Journal this evening is an offense to common sense and decency. Notice how the word “fraud” is pretty much verboten in the MSM; the latest code word for what went awry is “breakdown”. This implies a benign sort of neglect, simply of not doing sufficient maintenance which led fussy machinery to quit working. It is mean to avoid contemplating, let along uncovering, Pinto-type decisions of weighing the costs of making the vehicle safer versus the litigation losses resulting from incineration by exploding gas tanks.

The magic number across the industry is a mere $20 billion in civil fines or payments to fund loan mods. We know from BP not to have a great deal of confidence in settlement funds. It is not yet clear what scope of activities get a free pass (fraudulent servicer charges and impermissible compounding fees? failure to convey notes to mortgage trusts as stipulated in the PSA? foreclosing on home where HAMP mods had been promised?) but the industry will want any waiver to be as broad as possible. But in any kind of settlement of fraud, like securities fraud charges, various responsible parties are also barred from working in the industry, sometimes for life. None of that is on the table.

The plan involves having servicers give borrowers principal mods, but obviously only to the extent of the fund amount. The WSJ story announces that mortgage investors will suffer no losses. This shows how backwards the logic here is. Investors would LOVE principal mods to qualified borrowers; it’s far better than taking 70%+ losses on foreclosures. So saving RMBS investors any pain should never have been a feature of the plan design. And that means it is really a fig leaf for avoiding writedowns on second liens, which are heavily concentrated in the four biggest TBTF banks.

The officialdom is taking the stance that only a small number of borrowers suffered wrongful foreclosures. The HAMP fiasco alone makes that patently untrue. And the regulators’ failure to compare servicer records with borrower records (the short time frame of the task force effort guarantees that did not take place) makes this a garbage in, garbage out exercise. And that’s before you get to the question of fraudulent servicer charges, which foreclosure defense lawyers say represent 50% to 70% of the cases they handle (it’s easier to win based on standing so court records do not reflect the borrower reason for choosing to fight the foreclosure). Without an audit of servicer software, this regulatory assessment was a simple “see no evil” exercise.

Nor do I see any mention of imposing new servicing standards on banks, another massive oversight.

The servicers, as well as Fannie and Freddie, would be required to provide principal mods. But given the meager settlement amount, this is a complete and utter joke. The mods will be too shallow and too few in number to help either borrowers or the housing market. Both J.C. Flowers and Wilbur Ross, both very tough minded investors, have found deep principal mods work, and research supports their views. Why are borrowers going to struggle to make home payments when they still face a loss and/or a big tax bill when they try to sell the home?

If you assume a combined first and second mortgage balance of $200,000 and a mod of 10%, or $20,000, which is too low to make much difference to borrowers and well short of what investors would accept (given 70%+ expected losses on a foreclosure, 25% to even 50% is a no brainer), you only get 100,000 mods.

And as Marcy Wheeler correctly points out, this program is really HAMP 2.0. When a small group of bloggers visited the Treasury last August, HAMP was such an obvious failure that the staff didn’t even try hard to defend it. One of the excuses offered by Geither was that Treasury lacked authority over servicers (a point I disputed, since Treasury has plenty of leverage at its disposal). So there isn’t even any reason to believe the banks (ex perhaps the Fannie and Freddie loans) will live up to their commitment do a paltry number of mods. As Marcy noted:

…basically, it sounds like HAMP II–a “plan” that still lets banks decide how to implement that “plan”–with the sole improvement on HAMP I that it requires 2nd Liens to be “reduced” (but not eliminated) in the process of modifying the first liens.

The deal wouldn’t create any new government programs to reduce principal. Instead, it would allow banks to devise their own modifications or use existing government programs, people familiar with the matter said. Banks would also have to reduce second-lien mortgages when first mortgages are modified.

The good new is it does not sound like there is a deal agreed. The powers that be have yet to corral the state AGs (since when were they going to be part of this scheme?) and the servicers themselves.

So readers can help create heat on the officialdom. It would be very useful to come up with estimates of various types of damages (and it needs to be bottoms up, not “the global financial crisis cost X trillion and at least 25% is the fault of these clowns). First would be a list of types of damage done, and it should be mutually exclusive, and ideally collectively exhaustive. Next are any factoids that would help dimension the level of overall damage per category. For instance, some readers yesterday started using the Massachusetts lost recording fee estimate to try to ballpark the recording fees lost to MERS on a national basis.

Having the level of damages (which would certainly wipe out the banks, but we want everyone reminded of that fact, that any “settlement” is yet another gimmie) then serves as a basis for talking about monetary settlements and other required behavioral changes. The adverse reaction to the Center for American Progress’ Fannie and Freddie “reform” trial ballon apparently did put the powers that be on the back foot; reader information gathering and ideas here would be of great value in putting forward an even more forceful rebuttal to this disgraceful proposal.

Yves Smith – Naked Capitalism

We are officially in the middle of the worst housing collapse in U.S. history – and unfortunately it is going to get even worse.  Already, U.S. housing prices have fallen further during this economic downturn (26 percent), then they did during the Great Depression (25.9 percent).  Approximately 11 percent of all homes in the United States are currently standing empty.  In fact, there are many new housing developments across the U.S. that resemble little more than ghost towns because foreclosures have wiped them out.  Mortgage delinquencies and foreclosures reached new highs in 2010, and it is being projected that banks and financial institutions will repossess at least a million more U.S. homes during 2011.  Meanwhile, unemployment is absolutely rampant and wage levels are going down at a time when mortgage lending standards have been significantly tightened.  That means that there are very few qualified buyers running around out there and that is going to continue to be the case for quite some time to come.  When you add all of those factors up, it leads to one inescapable conclusion.  The “housing Armageddon” that we have been experiencing since 2007 is going to get even worse in 2011.

Right now there is a gigantic mountain of unsold homes in the United States.  It is estimated that banks and financial institutions will repossess at least a million more homes this year and this will make the supply of unsold properties even worse.  At the same time, millions of American families have been scared out of the market by this recent crisis and millions of others cannot qualify for a home loan any longer.  That means that the demand for unsold homes is at extremely low levels.

So what happens when supply is really high and demand is really low?

That’s right – prices go down.

Hopefully housing prices don’t have too much farther to go down.  Ben Bernanke and the boys over at the Federal Reserve are doing their best to flood the system with new dollars in order to prop up asset values, but you just can’t create qualified home buyers out of thin air.

Many analysts are projecting that U.S. housing prices will decline another ten or twenty percent before they hit bottom.  In fact, quite a few economists believe that the total price decline from the peak of the market in 2006 will end up being somewhere in the neighborhood of 40 percent.

But whether prices go down any further or not, the truth is that the housing crash that we have already witnessed is absolutely unprecedented.

The following are 12 facts which show that we are in the midst of the worst housing collapse in U.S. history….

#1 Approximately 11 percent of all homes in the United States are currently standing empty.

#2 The rate of home ownership in the United States has dropped like a rock.  At this point it has fallen all the way back to 1998 levels.

#3 According to the S&P/Case-Shiller index, U.S. home prices fell 1.3 percent in October and another 1 percent in November.  In fact, November represented the fourth monthly decline in a row for U.S. housing prices.  Many economists are now openly using the term “double-dip” to describe what is happening to the housing market.

#4 The number of homes that were actually repossessed reached the 1 million mark for the first time ever during 2010.

#5 According to RealtyTrac, a total of 3 million homes were repossessed by mortgage lenders between January 2007 and August 2010.  This represents a huge amount of additional inventory that somehow must be sold.

#6 72 percent of the major metropolitan areas in the United States had more foreclosures in 2010 than they did in 2009.

#7 According to the Mortgage Bankers Association, at least 8 million Americans are at least one month behind on their mortgage payments.

#8 It is estimated that there are about 5 million homeowners in the United States that are at least two months behind on their mortgages, and it is being projected that over a million American families will be booted out of their homes this year alone.

#9 Deutsche Bank is projecting that 48 percent of all U.S. mortgages could have negative equity by the end of 2011.

#10 Some formerly great industrial cities are rapidly turning into ghost towns.  For example, in Dayton, Ohio today 18.9 percent of all houses are now standing empty.  21.5 percent of all houses in New Orleans, Louisiana are standing vacant.

#11 According to Zillow, U.S. home prices have already fallen further during this economic downturn (26 percent) than they did during the Great Depression (25.9 percent).

#12 There are very few signs that the employment situation in the United States is going to improve any time soon.  4.2 million Americans have been unemployed for one year or longer at this point.  While there has been some nominal improvement in the government unemployment numbers recently, other organizations are reporting that things are getting even worse.  According to Gallup, the unemployment rate actually rose to 9.6% at the end of December.  This was a significant increase from 9.3% in mid-December and 8.8% at the end of November.

But even many Americans that do have jobs are finding out that it has become very, very hard to qualify for a home loan.

In an attempt to avoid the mistakes of the past, banks and financial institutions have become very stingy with home loans.  While it was certainly wise for them to make some changes, the truth is that perhaps the pendulum has swung too far at this point.  The U.S. housing industry will never fully recover if they can’t get their customers approved for mortgages.

Congress is talking about passing even more laws that will make it even more difficult to get home loans.  Even though they give speeches about how they want to help the U.S. housing industry, the truth is that Republicans and Democrats are both backing proposals that would make home mortgages much more expensive and much more difficult to obtain as a Bloomberg article recently explained….

Government officials and lawmakers want to make the market less vulnerable to another credit crisis, and all the options lead the same general direction: Borrowers will need larger down payments than in the bubble years, have higher credit scores, and pay extra fees to cover risks and premiums for federal guarantees on government-backed mortgage bonds.

While all that may sound reasonable, the truth is that the U.S. middle class has become so cash poor that the vast majority of them cannot afford homes without the kind of mortgages that were available in the past.

Not that we should go back and repeat the mistakes of the past 20 years.  It is just that nobody should expect the U.S. housing market to “bounce back” in an environment that has fundamentally changed.

The housing market is not like other financial markets.  It is difficult to artificially pump it up with funny money.  If the U.S. housing market is going to rebound, it is going to take lots of average American families getting qualified for loans and going out and buying houses.  But they can’t do this if they do not have good jobs.  Today, only 47 percent of working-age Americans have a full-time job at this point.  Without a jobs recovery there never will be a housing recovery.

In fact, there are all kinds of warning signs that seem to indicate that the U.S. economy could get even worse in 2011.  Many economists are now openly using the word “stagflation” for the first time since the 1970s.  Back in the 70s we had both high unemployment and high inflation at the same time.

Well, we have already had very high unemployment, and thanks to the relentless money printing of the Federal Reserve, it looks like we are going to have high inflation as well.

Middle class American families are going to be spending even more of their resources just trying to survive, and this is going to make it more difficult for them to purchase homes.

In fact, in recent years average Americans have been getting significantly poorer.  Over the past two years, U.S. consumers have withdrawn $311 billion more from savings and investment accounts than they have put into them.  That is very troubling news.

Now the price of food is soaring and the price of oil is about to cross $100 a barrel again.  So what is going to happen if we have another major financial crisis and we witness another huge spike in the unemployment rate?

The Federal Reserve is trying to smooth all of our problems over with a flood of paper money, but it isn’t going to work.  Yes, increasing the money supply will produce some false highs on the stock market and some false economic growth statistics for a while, but the tremendous damage that will be done to the economy is just not worth it.

In any event, let us all hope that we see some really great real estate deals over the next couple of years, because in the times ahead land will be something very good to own.  In fact, down the road it will be much better to own land than to have your money sitting in the bank where it will continuously decline in value.

Use your paper money wisely.  It will never have more value than it does today.

The Economic Collapse