Jack M. Guttentag The Mortgage Professor

My previous articles in this series criticized the administration's new program for Making Home Affordable (MHA) because it ignored negative equity -- which is the major factor underlying the currently horrendous foreclosure rate -- and because it offered refinance relief only to borrowers lucky enough to have their mortgages owned or guaranteed by Fannie Mae or Freddie Mac. This article is about the loan contract modification part of the program, which covers loans owned by any investor.

Like the refinance program, the loan modification part of MHA ignores negative equity and offers help only to owner-occupants. Investors are not eligible. Those negatives aside, the modification program is well designed. Its architects have taken note of a number of problems that have bedeviled existing modification programs, and have fashioned sensible remedies to deal with them.

Shortages of Trained Staff: The shortage of qualified staff by servicers, as well as the high cost of modifying loans, has resulted in many needless foreclosures that timely modifications could have prevented. The MHA remedy is to provide financial incentives to servicers to do more modifications.

Under the program, servicers are paid $1,000 for each eligible loan they modify, provided that the modified loan remains current through a trial period of at least 90 days. In addition, the servicer collects $1,000 a year for three years if the borrower stays current for that period.

High Incidence of Redefault: In the past, many borrowers with modified loans have subsequently defaulted. Many early modifications, however, did not reduce the borrower's payment, and in some cases the payment increased.

Under MHA, the interest rate is reduced to a level where payments for principal, interest, taxes, and insurance make up no more than 31 percent of the borrower's gross income. In addition, a borrower who stays current will receive $1,000 a year for up to five years in the form of balance reductions.

Restriction to Borrowers in Default: For the most part, servicers have limited modifications to borrowers who are two or more payments behind. This rule assured compliance with investor requirements that modifications were allowed only to avoid more-costly foreclosures, and it also helped servicers allocate their limited staff to the most urgent situations. But it had the unfortunate effect of encouraging borrowers to default so they could get help.

The new program attempts to remedy this by establishing "hardship" criteria for eligibility that does not require the borrower to be in default in order to qualify for a modification. In addition, bonuses of $1,500 to the investor and $500 to the servicer are offered for each modification that is executed while the borrower facing hardship is still in good standing.

Multiplicity of Modification Standards: Different servicers have applied different standards to the modification process, both in terms of assessing eligibility and in establishing the type and scope of modification. The result has been vastly different treatment of borrowers, depending on who happened to be servicing their loan. The new program attempts to remedy this by setting out standards for determining eligibility, the type and amount of assistance provided, the documentation required, and other factors.

In brief, eligible borrowers must be able to document financial hardship, defined as a monthly housing expense (mortgage payment plus taxes and insurance) in excess of 31 percent of gross income. If borrowers who qualify under this rule have a total expense ratio, which includes all other debt payments, of 55 percent or more, they must agree to obtain counseling. The mortgage payment of eligible borrowers is reduced to 31 percent primarily through temporary interest rate reductions, following procedures detailed by the government.

Unfortunately, on modifications that are not MHA eligible, the multiplicity of standards will remain.

The Second Mortgage Problem: Second mortgages are a potential barrier to modifying first mortgages because of the threat that the second mortgage lender can always foreclose if the second mortgage payment is not made. Some servicers work with second mortgage lenders, while others require the borrower to make a deal with the second mortgage lender that gets them out of the way.

Under the program, "incentives will be provided to extinguish junior liens on homes with first liens that are modified under the program." No detail is provided on this part of the program, which is one of several loose ends that await clarification. It is hoped that, in tying up these loose ends, the Treasury will also reconsider its exclusion of investors from the program, which could be easily remedied, and think about developing another program directed to the problem of negative equity.