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Jack M. Guttentag The Mortgage Professor

Jack M. Guttentag, The Mortgage Professor

Will Blemished Borrowers Be Blindsided by Congress?

by Jack M. Guttentag

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Posted on Monday, December 10, 2007, 12:00AM

In the wake of the subprime crisis, the mortgage market has turned against all but the "cream-puff borrowers" -- those with no weaknesses. The cream puffs can borrow today on pretty much the same terms as they could before the crisis. But borrowers with blemishes on their applications are paying much higher rates, and they face a far greater risk of being turned down altogether.

As if that isn't bad enough, The Mortgage Reform and Anti-Predatory Lending Act of 2007 (HR 3915), now winding its way through Congress, would worsen their plight. That is not the intention, of course, but the law of unintended consequences has a home in the home-loan market.

Blemished borrowers have one or more of the following risk factors: They can only make a very small down payment or none at all; they cannot fully document their income and assets; their property is something other than a single-family home; their loan is intended to raise cash or to purchase an investment property; they have low credit scores; their income is low relative to their expected total obligations; and their mortgage carries an adjustable rate that will result in substantially higher payments in a few years.

The Chickens Come Home to Roost: Defaults

During the go-go years of 2000 to 2005, the mortgage market was extraordinarily tolerant of risk factors. It was not unusual to see five of these factors present in an accepted mortgage, a phenomenon termed risk layering. Lending to a borrower who had no money for a down payment, who could not document adequate income, and who had a poor credit history was a kind of market insanity associated with the rapid run-up in house prices. Inflation of house prices converts even the worst loans into good loans. When the housing bubble burst in 2006, the chickens came home to roost in the form of mortgage defaults, which are rising to levels not seen since the Great Depression.

Markets tend to overreact. Just as the housing bubble was accommodated by insanely liberal lending terms, the pendulum has now swung toward Scrooge-like stringency. The price increments associated with risk factors are now two to three times as high as they were a year ago, and risk layering has gone way down. Roughly speaking, if you have two risk factors, the price is substantially higher, and if you have three, the deal is probably rejected.

A major provision of HR 3915 establishes "minimum standards for mortgages," which include requirements that borrowers have an "ability to repay" and that they receive a "tangible net benefit" from refinancing. What these rules have in common, in addition to their discriminatory impact on borrowers already victimized by misfortune, is their lack of specific operational guidelines. In an article I wrote recently on the tangible net benefit rule, I gave several examples in which the ultimate determinant of whether there was a net benefit to the borrower could not be known by the lender without reading the mind of the borrower.

Offering a "Safe Harbor"

The inability to know whether or not they are in compliance creates risk for lenders, which translates into higher costs for borrowers. But HR 3915 also provides a way to avoid this risk. It offers a "safe harbor," which is a presumption that the standards have been met provided that the loan at issue is a "qualified mortgage" or a "qualified safe harbor mortgage."

A "qualified mortgage" is one with an interest rate that does not exceed the rate on Treasury securities or an average mortgage rate by more than 3 percent or 1.75 percent, respectively. On second mortgages, the maximum spreads are 5 percent and 3.75 percent.

A "qualified safe harbor mortgage" is a loan that is fully documented, is not a negative amortization ARM (adjustable-rate mortgage), and either meets an income adequacy test, has a fixed payment for at least five years, or is an ARM with a margin (the amount that is added to the index to establish the interest rate on each adjustment date, subject to any limitations on the interest rate change) of less than 3 percent. The overlap between a qualified mortgage and a qualified safe harbor mortgage will be very high.

The combination of vague standards and a safe harbor means that lenders will classify loans with regard to whether or not they belong to the safe harbor. The safe harbor removes some of the sting from the imposition of vague standards, because many loans will qualify. But some will not qualify, and they will be priced at a higher rate than they are now -- or they will disappear. Already clobbered by the market, they will get the deathblow from Congress.

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74 Comments

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  • rick4615@sbcglobal.net - Saturday, January 5, 2008, 4:53PM ET  Report Abuse

    • Overall: 1/5

    There is another option that this so called mortgage professor has not mentioned, that is an FHA Mortgage. This is the mortgage that most of the people who are in a subprime mortgage should have been put in to begin with. FHA does not use credit scores as a determining factor, but uses the borrowers last 12 month pay history and a strict debt to income ratio to qualify borrowers. Most of these loans are fixed rate loans although 3/1 and 7/1 ARMs are available. Most banks will be FHA approved lenders. Most of the people in Subprime loans recieved the loans from a mortgage broker who probably was not an FHA Approved lender. Also the lending industry sold the clients on how bad mortgage insurancwe was. now we have this. It is the smart people who make the rules who are to blame for the mess we are in. They were looking for short term profits in lue of long term consequenses. You could see it coming when you make a loan for a client with no money down, self emlopyed for 1 year, and no real way to prove income. Would you make this loan?

  • Yahoo! Finance User - Thursday, December 20, 2007, 12:12PM ET  Report Abuse

    • Overall: 4/5

    The fed are thinking that if they stiffen the guidelines on lending This will all go away. In some sort of way yes that would be correct but if no one can borrow money even the ones who can afford that mortgage payment, than they will not be helping the situation but instead making it worst and definitely plunging us into a recession.

  • vegas_ac_mkts - Saturday, December 15, 2007, 6:59PM ET  Report Abuse

    • Overall: 1/5

    subprime is not a race. when you are of higher risk then the mkt should charge a higher cost to borrow. hence, it behooves subprime borrowers to pay bills and save more to get a cheaper loan. a few other pts: 1) the govt plan is far from bailout and i dont believe they care about homeowners. they are trying to smooth out the BKs so the financial system can digest the mess 2) it really doesnt matter if the rates are fixed for a short period because the assets are way overvalued. anyone accepting this deal when the mkt value of the home is much lower than the purchase price will become an indentured servant to banks and investors. slavory is back in America. 3) its easy to prevent this going forward. appraisers and lenders should abolish market comparables in underwriting loans. they should calcuate owner's total cost (capital cost -- interest on entire purchase price, insurance, tax, maintenance) per month and compare that to low to high average market rent for a similar size home. if a buyer wants to pay more than the mkt rent then they should put up more equity. you dont own when its cheaper to rent -- the rule for 99% of properties out there. you would be surprise how overprice homes are if people did this analysis. at the bottom of the RE cycle you will see prices such that landlord investors can buy and rent the property out at a reasonable return but not at this moment. its a myth that foreclosures are forcing prices down to abnormal levels. now that prices are falling there is no reason to own when you can rent cheaper. right now mkt comp method is comparable to blodget calling AMZN fair at 500 because EBAY is trading at X multiples. idiotic. 4) education is primary issue. we failed to educate people on common sense finance in high school: rent or buy, power of compounding, etc 5) the only people i feel bad for are the young people who do not understand finance well enough and was forced into the mkt because of rising prices. its a decade killer for them if they hold on to their homes at bubble prices. 6) personally i am glad the nation has stopped plowing resources into homes. its an unproductive asset and ultimately a bad investment asset over the long term (as we are beginning to see). there is no shortage of land or homebuilders willing to build more homes. when the demographics turn as boomers retire, this will become evident. 7) many people are still way too optimistic about RE rebounding -- the NAR is a total joke. there are not an army of buyers representing significant latent demand for homes. its idiotic. everyone owns a home already and the few who are renting and waiting to buy are FEW not MANY. 8) credit environment is not even tight yet: we are going back to normal underwriting criteria from easy credit. in 1991, they wanted 90% owner occupancy for condos plus 30% down with full documentation to underwrite a conventional 30yr mtg. is that the case now? hardly. its going to get worst before getting better and everyone's time frame to recovery is way off. RE is long cycle asset -- long booms and long down turns.

  • hollen_paul - Friday, December 14, 2007, 2:15PM ET  Report Abuse

    • Overall: 1/5

    Totally misses the real problem. Lack of regulation in the mortgage markets. This is an inept government double whammy.

  • Alicia H - Thursday, December 13, 2007, 11:22AM ET  Report Abuse

    • Overall: 5/5

    i am in search of a mortgage for my property here in cleveland.The article has given me a better idea of what is up in the industry. Thanks

Showing comments 1-5 of 74Next >>

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