Archive for October, 2010
How much damage to the financial system should we expect from what is now commonly called the foreclosure morass, the developing scandal involving document robo-signing (and robo-dockets), completely messed up mortgage paperwork and highly publicized inquiries into accusations of systematic and deliberate misbehavior by banks?
The damage to banks’ reputation is immeasurable. They have undermined property rights — the ability to establish clear title is a founding idea of the American republic. They have mistreated customers in a completely unacceptable manner. If people doubted the need for a new consumer protection agency dealing with financial products — and the importance of having a clear-thinking reformer like Elizabeth Warren at its head — they have presumably been silenced by recent events. (If you need to get up to speed on the basics of this issue, see this series of posts by Mike Konczal.)
But what is the cost in terms of additional likely losses to big banks? The likely size and nature of these are leading to exactly the kind of systemic risks that the Financial Stability Oversight Council was recently established to anticipate and deal with.
Here’s a FAQ on the mortgage bond scandal to keep you tided over, since there seems to be a lot of confusion out there.
I’m hearing a lot about foreclosuregate, MERS, moratoriums, bad title, etc. What does this have to do with that?
Nothing. This is an entirely separate, parallel, scandal. The main area overlap is that it gives investors in mortgage bonds one more colorable reason why they should be able to put back their bonds to the banks who issued them—over and above the fact that they have the right to do that if the mortgages weren’t properly transferred.
So this isn’t about legal title to mortgages. What is it about?
Just like the Goldman Abacus case, it’s fundamentally about investment banks’ lies of omission when it came to the investors who were buying bonds from them.
The federal regulator overseeing Fannie Mae and Freddie Mac hired a law firm specializing in litigation as the agency considers how to move forward with efforts to recoup billions of dollars on soured mortgage-backed securities purchased from banks and Wall Street firms.
The Federal Housing Finance Agency, which in July issued 64 subpoenas to issuers of mortgage securities, bank servicing companies and other entities, is working with Quinn Emanuel Urquhart & Sullivan LLP, a Los Angeles-based firm that specializes in business litigation, to coordinate its investigations.
In a statement, the FHFA said it is analyzing requested information and that "no decisions for future action have been made." Quinn Emanuel confirmed its hiring by FHFA but declined to comment further.
Since the financial crisis, 400-lawyer Quinn Emanuel has avoided building a banking clientele, making it a top suitor for plaintiffs pursuing banks. The firm has represented MBIA Insurance Corp. in several lawsuits against top U.S. mortgage banks alleging that the insurer was fraudulently induced to cover losses on mortgage-backed securities. Those cases are ongoing.
What started as a clerical issue is beginning to feel more like the apocalypse. The mortgage finance industry survived the debacle of subprime mortgages, the collapse of commercial paper and market-wide liquidity locks only to be equally impacted by simple documentation errors.
And this is why: for all of the different nuances to the next end-of-the-world moment, one thing remains the same — the reaction. As the problems get smaller, the responses seem to be getting larger.
This is predictable. But what is going to happen next, is not. The definition of a market 'hit' is that you can't see it coming.
In the case of robo-signing, what started as a documentation problem that originally seemed simple enough to repair grew into an issue of state-by-state foreclosure regulations adding issues that crop up only during default, resulting in potential buybacks.
Today in a speech, Charles Plosser, CEO of Federal Reserve Bank of Philadelphia, remarked, "When the next crisis inevitably arises, the cycle will likely repeat itself, with more laws, more stringent regulations and more assurances that — this time — we have eliminated the possibility of bad economic outcomes and have prevented reckless behavior from disrupting the economy."
This is assuming the reckless behavior happened yesterday. But what about reckless behavior happening today? This is what will cause the next hit.
Consider our future without foreclosure — the potential outcome to recent events.
In an effort to end these shameful practices of taking possession of homes from borrowers who don't pay the mortgage, we can't see the forest for the trees.
For example, short sales are already growing in popularity. Before the Foreclosuratoria carnival came to town, REOs represented approximately 30% of all distressed sales — steadily losing market share.
Short sales are expected to be taking market share and will likely fill the gaps once new laws make foreclosures much more difficult.
But nothing is being done industrywide to ensure these short sales are closing cleanly, in an effort to prevent aggravation at a later date.
Just last night, while watching House Hunters on HGTV, the couple purchasing a short sale seemed to be paying an inflated price. One wonders why the price on a $210,000 valued short sale is being sold for $190,000 or so; 10% below market does not seem to fit HGTV's definition of a short sale where buyers "get a lot of house for not a lot of money," the episode synopsis says.
I can't help but wonder if this time next year borrowers Chris and Lali get the feeling they may have been duped and claim the price was artificially high and decide to take the bank (not the agent, of course) to court.
Soon, press reports will follow, citing the hazardous and predatory short sale practices that went unchecked for the second half of 2010 and well into 2011. The banks will then halt short sales, at first voluntarily, then later….
The point is that both foreclosures and short sales, perhaps even all loans, should be reviewed today in an effort to suss out potential problems in the future.Why wait for a default event before getting to that stage?
For example, even though short sales will be booming, the establishment of an arbitration resolution process seems to be considered unnecessary in mortgage finance — which is fine but in a future without foreclosures, the only ones who are going to see continual profits are those involved in litigation.
Meanwhile correcting the flaws in the foreclosure documentation will take time, and this will likely keep everyone focused on this issue while the next big hit begins loading up.
At some point we will have to stop looking at the mistakes we made yesterday or even today, but rather at the mistakes that may surface sometime tomorrow.
Jacob Gaffney is the editor of HousingWire.
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