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Jack M. Guttentag The Mortgage Professor

Jack M. Guttentag, The Mortgage Professor

Federal Reserve Board to the Rescue? Part II

by Jack M. Guttentag

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Posted on Wednesday, February 6, 2008, 12:00AM

How can abuses by mortgage brokers be eliminated? And does the Federal Reserve Board have the answer?

In my column last week, I criticized the Board's proposed rules to prohibit lenders from making loans that were not affordable and to require lenders to verify the information on which they base loan decisions. I believe these rules are too vague to be enforceable, and it is too late for them to do any good even if they were enforceable.

This week I look at the Board's proposed approach to curbing abuses by mortgage brokers. Timeliness is not an issue here -- but doing it right is.

How Brokers Abuse Borrowers

Mortgage brokers abuse borrowers when they collect a rebate from the lender for delivering a high-interest-rate loan without the knowledge of the borrower. I developed the Upfront Mortgage Broker (UMB) program largely to deal with this problem.

UMBs agree in writing with borrowers to a specified total fee, which includes any payment received by the broker from the lender. The borrower elects how to pay the fee, either in cash at closing or in a rate high enough that the lender will pay a rebate to the broker.

Under the Board's proposal, lenders would be prohibited from making a payment to a broker unless the borrower and broker had agreed in advance on the broker's total compensation. The obligation imposed on the broker by this rule is thus identical to that imposed on a UMB.

Enforcement Challenges 

However, the UMB program is voluntary, whereas the Board would impose the obligation on all brokers, most of whom don't want it. This makes enforcement a challenge.

The Board would impose enforcement responsibility on wholesale lenders. Before paying a rebate to a broker, the lender would have to check the agreement between the broker and the borrower, as well as the HUD1 closing statement (the form used to itemize all charges imposed upon a borrower and seller for a real estate transaction), to make sure that the total amount received by the broker does not exceed the amount agreed upon.

But there is a better way to prevent brokers from getting paid by lenders behind the borrower's back -- a way that has no compliance burden. Lenders would simply be required to credit all rebates to borrowers. Lenders would inform their settlement agents that this is now the rule -- and that would be it. There would be no need for case-by-case investigation because there would be nothing to investigate.

A More Effective Approach

This approach would also be more effective. Under the Board's proposal, glib brokers will still be able to get trusting borrowers to sign off on rebates. This will be much more difficult if rebates are credited to borrowers, because then borrowers must be persuaded to sign over what they already have.

The rule should be applied not only to brokers but also to "correspondent lenders," who operate in the same way as brokers except that they close loans in their own name.

Correspondent lenders receive rebates just like brokers, and should be subject to the same rules. If they are not, brokers who don't want to comply will become employees of correspondent lenders, who will allow them to function much as they had as brokers.

The Board's proposal, however, only applies to brokers, reflecting its failure to recognize that, while correspondent lenders may be lenders under the law, operationally they more closely resemble brokers. Like brokers, they receive rebates from wholesale lenders on higher-rate loans, and they are similarly positioned to abuse borrowers.

Lenders who originate loans at their own risk raise a different issue. Such lenders don't receive rebates, but the loan officer employees can abuse borrowers just as easily as brokers. Where opportunistic pricing by brokers usually involves pocketing rebates, opportunistic pricing by retail loan officers takes the form of overages -- prices above the retail prices posted by the firm.

A loan officer who can induce a borrower to accept a rate above the rate posted by the firm will typically share the value of the overage.

To maintain a level playing field between brokers and loan officers, rebates on loans delivered by brokers and correspondent lenders should be credited to borrowers, and overages on loans delivered by loan officers at other lending firms should be prohibited.

Next week: how the Board would curb servicing abuses.

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99 Comments

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  • Rogue Trader - Friday, April 11, 2008, 5:11PM ET  Report Abuse

    • Overall: 2/5

    to Rapunzel: I don't think it's Bush's fault (not this one at least). However, you cannot deny that strong housing has been mentioned in a great number of his speeches for which he so proudly took credit for. Neil Cavuto and other geniuses on "Fox and Friends" have been praising him for the very same thing.

  • taopraxis - Friday, March 14, 2008, 11:48AM ET  Report Abuse

    • Overall: 1/5

    The very people who failed to forecast the approaching crisis that what was so obvious to so many others, who, in fact, arguably *caused* this real estate/currency/credit crisis, the very people who failed to properly regulate the banks and brokers they are now fruitlessly trying to bail out, the same people who failed to control government spending in order to maintain the value of the dollar and failed in their fiduciary duty to the taxpayers, these are people who are neither competent enough nor credible enough to effectively regulate our complex, opaque, and unstable financial system at all. Thus, perhaps it is not so very unfortunate that these soviet-style central planners, whose failed bets supported by dubious statistics were so incomprehensibly large, are now finding that, having lost those bets, they have hubristically exceeded their own limitations. That is why the usual liquidity machinations have proved incapable of fixing it. Too much paper and too few suckers left to absorb it. These sorcerer's apprentices have started something they cannot stop and have now been reduced to watching along with the rest of us as the market washes away the fantastic excesses and distortions wrought by their failed policy of debt monetization and inflation. My message to these failed central planners is simple: "Please. Don't help. You've done quite enough already, thank you."

  • Coach - Sunday, February 17, 2008, 12:42PM ET  Report Abuse

    • Overall: 1/5

    I'm not sure if this commentator get's it. We cannot rely on the government to regulate how private business is run. The blame simply falls on the lack of due diligence on the borrower's part...

  • Rapunzel - Monday, February 11, 2008, 5:29PM ET  Report Abuse

    • Overall: 3/5

    wow, in regard to the commentary below...wow. So the president is now responsible for all of these lending woes too? You really are unhinged. I too work in this field and you can bet that this president, the last president...any president...is a bit too busy to deal with something like this. I am pretty sure that we have any number of authorities who should be held accountable for some of this mess. I do agree that the none of your business loans really are the predominant culprits here and not the "bad credit folks". Frankly, the lenders doing the bad credit folks went down mighty fast. But, the rest of us at reputable lenders still struggle with loss and the messes and our struggles cannot be so easily explained since giving loans to bad credit folks was not on the top of our list. On the other hand, giving loans to folks with good credit at high loan to values was. Once we stop blaming the Bad credit folks and perhaps the President of the USA...we might actually find a solution to this horrible fiasco. And since we do want to trash presidents..we might all do well to remember in this election year that not so long ago, one of the candidates running was knee deep in a thing called Whitewater. I would be a bit concerned that someone tainted in that mess would be the one in charge of pulling us out of this one.

  • Yahoo! Finance User - Monday, February 11, 2008, 7:22AM ET  Report Abuse

    • Overall: 3/5

    The problem is simple: 1) No Documention Loans. 2) 125% LTVs (s/b 80%) 3) Fraud by the broker and the borrower. Who made the decisions to accept item 1 and 2 that perpetuated 3? Why can't our elected officials tell us specifically who is responsible for this mess? What parties in the administration gave the nod? How far up does conspiracy go? I have worked in the field fo 20 years and suspected this would eventually happen. I wasn't irate about it because I never needed to cheat. But I am now because it's going to cost all of us. Congress can't tell us who because it would show that were asleep at the wheel. The White House can't because it was their and their cronies ideas in the first place. How far up? All the way up an all the way down. Hell, back in the early 90's Citibank would have some customers fill out the income verification papers and seal them in an envelope and put them in the safe w/o anyone ever looking at them just to cover their asses and say they had done their job if things went sour!!! Why? Because greed trumps intellegence every time. Bush must have thought it was a good way to let the little guy participate in the booming economy while he ignored trade rules that took away the good jobs.

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